Antitrust Law Daily Wrap Up, ANTITRUST—S.D.N.Y.: Suspended physician’s claims dismissed for failure to allege antitrust injury, (Aug 14, 2013)

By Jeffrey May, J.D.

A physician whose privileges at a Middletown, New York, hospital were suspended failed to adequately allege standing to challenge a purported conspiracy to utilize the hospital's peer review procedures to drive him out of the market for orthopedic surgical services, the federal district court in White Plains, New York, has ruled. Discrimination claims raised by the complaining orthopedic surgeon, who was 62 years old and of Indian national origin, also were dismissed (Bhanusali v. Orange Regional Medical Center, August 12, 2013, Seibel, C.).

The physician failed to allege an antitrust injury to assert his Sherman Act claims, according to the court. He did not allege injury to competition resulting from his exclusion from the market.

The allegation that patient choice was limited by the removal of this one orthopedic surgeon from among an unstated number in the relevant geographical area was wholly conclusory and without factual basis, the court noted. Moreover, an allegation that quality of care was limited, because the complaining physician's current patients were forced to find new doctors and other doctors were prevented from referring patients to him, was likewise wholly conclusory, in the court's view.

While the federal antitrust claim was dismissed because the plaintiff failed to allege an antitrust injury, a decision by the Public Health and Health Planning Council of the New York State Department of Public Health (PHHPC) in favor of the defending medical center did not compel dismissal, it was noted. The PHHPC was charged with reviewing challenges to a hospital’s curtailment of a physician’s privileges. Its findings were accorded only presumptive, not conclusive, effect in a subsequent court proceeding, the court explained.

The court also dismissed the physician's antitrust claim under New York state law. Section 340 of New York General Business Law did not apply to physicians, according to the court.

Because the plaintiff had already amended his pleading three times, the motion to dismiss was granted with prejudice, and the case was closed.

The case is No. 10-CV-6694 (CS).

Attorneys: Bryan McCaffrey (Leffler Marcus & McCaffrey LLC) for Govindlal Bhanusali. Douglas P. Catalano (Fulbright & Jaworski L.L.P.) for Orange Regional Medical Center.

Companies: Orange Regional Medical Center

Cases: Antitrust NewYorkNews