Petition for Writ of Certiorari — Holmes v. Tenet Healthsystem Medical Inc.

(1) Supremes Court U8

FILED

No. < '

In The

Supreme Court of the United States

J. DOE, M.D.,*

Petitioner,

Vv.

TENET HEALTHSYSTEM MEDICAL, INC., and

EAST COOPER COMMUNITY HOSPITAL, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

*C. Holmes

Pro Se

Post Office Box 187

Sullivan’s Island, South Carolina 29482

(843) 883-3010

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LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477 .@)

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QUESTIONS PRESENTED

I. WHETHER THE “INTRA-ENTERPRISE”

DOCTRINE SHOULD BE APPLIED TO

IMMUNIZE A HOSPITAL AND ITS

MEDICAL STAFF FROM ANTITRUST

LIABILITY WHEN THE HOSPITAL AND

ITS MEDICAL STAFF ARE NOT

PERFORMING “PEER REVIEW” AND

TERMINATE A PHYSICIAN’S ADMITTING

PRIVILEGES FOR REASONS NOT

INVOLVING QUESTIONS OF

PROFESSIONAL COMPETENCE OR

QUALITY OF PATIENT CARE.

II. WHETHER A PHYSICIAN WHOSE |

HOSPITAL PRIVILEGES HAVE BEEN

TERMINATED SOLELY FOR FAILURE TO

REFER AN ARBITRARY NUMBER OF

PATIENTS TO THE HOSPITAL HAS

STANDING TO REQUEST INJUNCTIVE

RELIEF ON THE GROUND THE

HOSPITAL’S PATIENT REFERRAL

REQUIREMENT VIOLATES FEDERAL LAW.

Ill. WHETHER THE LOWER COURTS APPLIED

AN IMPROPER STANDARD OF REVIEW

UNDER RULE 56(c) BY EXPRESSLY

REFUSING TO CONSIDER IMPORTANT

FACTS SUPPORTING THE PETITIONER’S

ANTITRUST CLAIMS AND DECIDING

DISPUTED FACTS IN THE LIGHT MOST

FAVORABLE TO THE RESPONDENTS.

PARTIES BELOW

The parties before this Court are the pro se Petitioner,

J. Doe, M.D., and the Respondents, Tenet HealthSystem

Medical, Inc. and its wholly-owned subsidiary, East Cooper

Community Hospital, Inc. Best Care Providers referred to in

the Petition is a nonwholly-owned entity affiliated with the

Respondent, Tenet HealthSystem Medical, Inc.

TABLE OF CONTENTS

Page

Questions Presented i

Parties Below il

Table of Authorities il

Opinion Below l

Statement of Jurisdiction |

Constitutional and Statutory

Provisions Involved |

Statement of the Case ]

Reasons for Granting the Writ 8

Argument

Question I 10

Question II 20

Question III 24

Conclusion 26

TABLE OF CITED AUTHORITIES

SUPREME COURT

Page

Anderson vy, Liberty Lobby, Inc., 477 U.S.

I I nicsctaergahsindesebbentiupeninnnterneeencoes 24

Copperweld Corp. v. Independence Tube Corp.,

SIME Salih: SI isncedisansiannstsbvcnnsecnsnahesonce 8, 12

Hospital Building C T PR

il

I

Hospital, 425 U.S. 738 (1976)............008 19, 26

lef Parish Hospital Dist. No. 2 v. Hyd

SN I aici i ei ic scaieeauss 26

Patrick v. Burget, 486 U.S. 94 (1988).......c.sseccesse: 19, 26

Summit Health Ltd, v. Pinhas, 500 U.S. 94

Eat iihnitnininiicthaiddntnticainentsessnamicimness passim

United States v. Yellow Cab, Co., 332 U.S. 218

8,12

Hospital, 36 F. 3d 664 4 (th C Cir. 1994) ete 25

Bolt v. Halifax Hospital Medical Center, 891 ,

F.2d 819 (11th Cir. 1990)...............ccccccessreees 11, 13

Hanlester Network vy. Shalala, 51 F.3rd 1390,

SEE Tatts WE i etinisietstnnciehaniteninnaninaeiions 21

Home Health Services, Inc, v. Currie, 706 F.2d

Be CG © Fe ittenintdnssitinntanainaninnis 23

Nurse Midwifery Assoc, v. Hibbet, 918 F.2d 605

(6th Cir. 1990) amended 927 F.2d 904,

cert. denied 112 S.Ct. 406 (1991)................ 13

Oksanen v. Page Memorial Hospital, 945 F.2d 696

(4th. Cir. 1991), cert. denied 112 S. Ct.

PE iaiiiiceinidicecippiiietciislhstilincictinsatainaeen 13, 14

Seglin v. Easau, 769 F.2d 1274 (7th Cir. 1985)........ 25

Weiss v. York Hospital, 745 F.2d 786 (3rd. Cir.

1984, cert. denied 470 U.S. 1060 (1985)... 12 :

West Allis Memorial Hospital v. Bowen, 852 F.2d

8 CC, Ba icenncttccttenteccd iiiasseiiais 23

DISTRICT COURTS .

Inc., 51 F.Supp.2d 673 (E.D.N.C. 1999)....... 23

Beecham Clinical Laboratories, Inc., 1994

iii

WL 449281 (N.D. IIL. 1994).......cccccccseeereeees 23

ini ini , 915 F.2d

121 (4th Cir. 1990)...........ccscecscerseerseereeeesees 24

F.2d 482 (Ist Cir. 1981).........ccccccscseerereeeeeeees 24

Polk County, Texas v. Peters, 800 F. Supp. 1451

Vana vy. Vista Hospital Systems, Inc., 1993 WL

597402 (Cal. Super. 1993).........cccccceeeseeeeeeees 23

STATE COURTS

Lee v.Chesterfield General Hospital, Inc., 289

S.C. 6, 344 S.E.2d 379 (S.C.App. 1986)....... 5

Pee Dee Nursing H Fl G Hospital

419 S.E.2d 834 (S.C.App. 1992).........0+-. 5

STATUTES

AE EG i sic: dnessnsiosisinnninianin 1, 4,12

a

42 U.S.C. § 13951 .ocecccccescccsescccssececsseseessees

42. U.S.C. § 13200-710 .2n.ccoceccccesccocescossscsnssses

ee RN ere

OTHER AUTHORITY

SRSA eeneeserrerienes nee ear ONS ee arene 24

S.C. Code Ann. § 44-113-10, ef Sq. ..........c0000000e 21

William S. Brewbaker, III, Antitrust Conspiracy

Doctrine and the Hospital Enterprise, 74

B.U.L. Rev. 67, 68 (1994).............c..csecssseoeee 12

Kurt Erskine, Square Pegs and Round Holes:

Antitrust Law and Privileging Decision,

44 U.Kan_L.Rev. 399 (1996)............-.0+ 11, 12

John Neff, Physician Staff Privilege Cases:

Iv

Antitrust Liability and the Health

Care Quality Improvement Act, 29 Wm &

Mary L. Rev. 609, 612 - 613........cssesseeeees 11

Christopher Lauren, Oksanen v. Page Memorial

Hospital: The Fourth Circuit’s Antitrust

Analysis for Peer Review Action Under the

Sherman Act, 6 BYU J. Pub. L. 603, 611

Lois Anne Bowlus, Summit Health Ltd. v, Pinhas:

The Supreme Court’s Eye-Opening Decision

to Allow Sherman Act Jurisdiction in a

Hospital-Exclusion Case, 23 U. Tol.

i, BI Fie We A ctetessninnpadqnsionsseninense 14

Scott, Medical Peer Review, Antitrust, and

the Effect of Statutory Reform, 50 Md.

L. Rev. 316, 320 (1991 ).e.scccsssssssscssssssssseees 14

OPINION BELOW

The unreported opinion of the Fourth Circuit Court of

Appeals denying the Petition for Rehearing is reprinted in the

Appendix at 1. The unreported per curiam opinion of the

Fourth Circuit Court of Appeals affirming the order of the

United States District Court for the District of South Carolina

is reprinted in the Appendix at 2 - 3. The unreported opinion

of the United States District Court for the District of South

Carolina granting summary judgment is reprinted in the

Appendix at 4 - 26.

STATEMENT OF JURISDICTION

The opinion of the Fourth Circuit Court of Appeals

from which the Petitioner seeks review was issued on

November 17, 2000, and became final by the denial of

Petition for Rehearing on February 27, 2001. This Petition

for Writ of Certiorari is timely filed under Supreme Court

Rule 13. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The text of 15 U.S.C. §§ 1 and 2, 42 USC. §

1395nn, and 42 U.S.C. § 1320a-7b are set forth in the

Appendix at 28 - 55.

STATEMENT OF THE CASE

The setting is an established medical practice known

for personal care in a desirable coastal location, the only

l

medical complex on an island affectionately known as

“Mayberry by the Sea.” When the nation’s second largest

health care entity with the shadiest secret past entered the

local health care market, the community hospital was lost.

The health care conglomerate swallowed the local hospital

and began to acquire primary care and specialty practices.

The hospital-owned practices were in direct competition with

private practitioners. What unfolds is what happens when

independent private practitioners “cross paths” with Tenet.

The East Cooper area is an island and coastal

community separated geographically from the surrounding

area. The Practitioner lives and works on a barrier island

connected to the mainland by a drawbridge. It has been

named one of the 10 best communities in which to raise a

family, a significant factor in the choice of location for the

Practitioner’s office and home. Access to the only hospital in

the geographic area, the only hospital where the Practitioner

has privileges, is crucial for the Practitioner’s patients as well.

The Practitioner was approached with an offer to

locate in the island’s only medical building with all

administrative and supportive services attached including

shared billing, reception, and telephone number. After

significant investment and renovations, it was the

Practitioner’s misfortune to unwittingly become Tenet’s co-

tenant upon its acquisition of the primary care practice. In

hindsight, the outcome is all too predictable: bullied,

badgered, bloodied, and bludgeoned. But the methods and

tactics are chilling and ominous for the future of health care.

When Tenet could not use its considerable influence with its

landlord, who was also its physician-employee, to remove its

co-tenant, it set its sights on the Practitioner’ s admitting

privileges.

Tenet and its predecessor have been in Court before.

Countless other physicians have been badgered, bullied, and

crushed by Tenet’s corporate machine for lack of resources

to oppose such tactics. It is respectfully submitted that these

issues are of tremendous urgency and importance for -

countless physicians who daily encounter monolithic health

care entities relentlessly and incessantly eroding the very

foundation of the doctor-patient relationship with abandon

and with faceless lack of accountability.

In this case, Tenet, without any notice, in

contravention of the bylaws, and in the absence of any

wrong-doing, changed the Practitioner’s staff category

subjecting her to an arbitrary patient referral requirement.

Appendix at 57, 58. At the same time, Tenet deleted the

Practitioner’s Yellow Pages advertising without notice yet

continued to collect and deposit monthly payments for said

advertising. The Practitioner’s Yellow Pages advertising had

been routinely renewed by the hospital the previous year

signed by Robert Stephens, V.P. Finance for East Cooper

Hospital. Then, without authority under the bylaws, Tenet

subjected the Practitioner to an unscheduled review of

admitting privileges, reclassified her to a “devised” staff

category of provisional Associate Active, and advised her

admitting privileges would be terminated unless she referred

an arbitrary number of patients to the hospital in violation of

the Stark and Anti-Kickback statutes. When the Practitioner

made a written request for an appeal, Tenet refused to allow

an appeal. Appendix at 66.

One year later, the Practitioner’s admitting privileges

were summarily terminated in violation of the Bylaws and

before the Practitioner was given any opportunity to be

heard. Appendix at 68 - 71. The decision which ultimately

led to the filing of this case occurred on August 4, 1997,

when the Credentials Committee summarily terminated the

3

Practitioner’s admitting privileges in the absence of any

wrong-doing and in violation of the 1995 bylaws then in

effect. There was no notice. There was no hearing. This

decision was taken after the Practitioner’s direct economic

competitor, Dr. Grady, falsely represented it would not harm

the Practitioner’s practice. Appendix at 68 - 69. Dr. Grady

was the only other full-time general ophthalmologist in the

relevant market. Dr. Grady was not residency-trained in the

most modern and ~most_ pertinent procedure,

phacoemulsification. He did not abstain in the face of a direct

conflict of interest. Administrative appeals were exhausted

but there was no report of the review committee’s findings

and recommendations as required under the bylaws. The

Practitioner was informed the committee recommended

restoration of admitting privileges. The Practitioner was

denied the opportunity to appear before the Board either in

person or by counsel. The Board ignored the committee’s

recommendation. Having no alternative, the Practitioner was

forced to seek redress through the judicial system.

The Practitioner raised the federal questions sought to

be reviewed in this Petition for Certiorari involving 15 U.S.C.

§§ 1 and 2 in the Complaint filed in the United States District

Court on March 26, 1999. The Practitioner raised the federal

question sought to be reviewed involving 42 U.S.C. § 1395nn

- and 42 U.S.C. §1320a-7b in the Amended Complaint filed in

the District Court on December 6, 1999. The issues were

preserved and argued before the District Court when it

considered the Respondent’s motion for summary judgment.

The District Court addressed these issues in its order granting

summary judgment filed on April 17, 2000. The Practitioner

preserved and argued these issues in the appeal to the Fourth

Circuit Court of Appeals. The Fourth Circuit Court of

Appeals affirmed in a per curiam opinion and the Practitioner

4

again preserved and argued these issues in the Petition for

Rehearing. The Fourth Circuit Court of Appeals denied

rehearing without further comment.

With all due respect, the Practitioner submits the

District Court’s Order dated April 17, 2000, improperly

omitted consideration of many undisputed facts. It is

undisputed that the 1995 bylaws were in effect at all relevant

times up to and including the Credentials Committee’s

unauthorized summary termination of the Practitioner’s

admitting privileges in August, 1997. Further, it is undisputed

that the patient referral provision is in the same category as

the meeting attendance requirement and is characterized as a

“support of the hospital” provision based upon economic or

financial and not professional considerations. Hospital bylaws

are an inducement to physicians to apply for privileges.

Hospitals enact bylaws and represent that they will be

followed and that physicians will be treated fairly in

accordance with the procedural safeguards and fair hearing

provisions of the bylaws. The Practitioner reasonably relied

upon the bylaws and the representation that they would be

followed. As stated in the bylaws, hospital committees have

authority to make recommendations only. In this case, the

Credentials Committee and Medical Executive Committee,

with a direct economic competitor participating, usurped the

power of the governing Board and summarily terminated the

Practitioner’s hospital privileges without a hearing. Under

applicable State law, as provided in the cases of Pee Dee

Nursing Home v. Florence General Hospital, 419 S.E.2d 834

(S.C.App. 1992) and Lee v. Chesterfiel neral Hospi

Inc.,289 S.C. 6, 344 S.E.2d 379 (S.C.App. 1986), actions

taken without actual or apparent authority under the bylaws

are deemed actions of individuals, separate and distinct from

the hospital, and are considered concerted actions of co-

conspirators. As acknowledged by the Respondent’s expeit,

the termination of the Practitioner’s hospital privileges did

not involve peer review; therefore, HCQIA immunity does

not apply. Appendix at 107. This unauthorized, arbitrary, and

illegal patient referral requirement had never been enforced

before. Assuming, though not admitting, the patient referral

requirement applied, the Practitioner met the bylaws

definition of patient contact by “consulting in connection with

the hospital” when she saw patients referred by Best Care

Providers, a medical practice owned by the hospital.

Appendix at 121 (Article IV, Section 2.A.). There were more

than 24 consultations with the hospital-owned primary care

practice, proffered but ignored. Under the 1995 Bylaws, the

patient referral requirement did not apply to members of the

Associate staff. Appendix at 86 - 87; 121 (Article IV, Section

3.A.). The Credentials Committee Chairman admitted he and

others “devised” the staff category of provisional Associate

Active which subjected the Practitioner to an otherwise

inapplicable patient referral requirement.

At the end of the initial 12-month appointment, the

Practitioner completed her provisional requirement and was

reappointed to Courtesy staff in 1995. Appendix 56. Under

the Bylaws, reappointment unless otherwise notified is for a

two-year term. Appendix at 121 (Article II], Section 4.B).

At that time there was no requirement that members of the

Courtesy staff have privileges at another hospital. After the

Practitioner’s reappointment and without notice to Courtesy

staff members, there was an amendment to the Courtesy staff

category. Thereafter, the Practitioner’s reappointment was

prematurely reviewed depriving her of the right to complete

the two year term of her reappointment. She was subjected to

the devised provisional Associate Active staff category and

the arbitrary and illegal patient referral requirement. When the

6

Practitioner attempted to appeal these actions on September

17, 1996, Tenet refused to allow any hearing or appeal.

Appendix at 66 - 67.

Under the bylaws, other physicians were given two

years to comply with the patient referral requirement and an

additional year upon request. Although the Practitioner

complied with the hospital’s bylaws, unlike other physicians

she was granted only one year to meet the arbitrary and

illegal patient referral requirement. After subjecting the

Practitioner to the unauthorized, illegal, and discriminatory

patient referral requirement, the Respondents engaged in a

campaign of predatory practices designed to thwart

compliance.

The Respondents canceled the Practitioner’s Yellow

Pages advertisement without notice although they continued

to collect monthly checks from the Practitioner for such

advertising. The Respondents terminated telephone

answering, call, and patient reception services. They stopped

providing her with administrative services such as file

management and insurance billing. The Respondents

systematically diverted the Practitioner’s established and

prospective patients to physicians employed by Tenet. The

Respondents promoted use of a preferential emergency room

call schedule which excluded multiple physicians including the

Practitioner. See Dept. of Surgery Meeting Minutes, Dr.

Grady presiding, October 4, 1996. All occurring against a

backdrop of insults and slander of the Practitioner’s

professional geputation. Appendix at 104.

Physicians are encouraged by the hospital to seek

advice on the bylaws from the Medical Staff Office (MSO).

The Practitioner was advised by the MSO that under the

bylaws she would have at least an additional year to meet the

patient referral requirement. After the Respondents refused a

7

written request for appeal, the Practitioner relied upon the

MSO’s advice. At the end of the year, however, her admitting

privileges were terminated without notice and without any

opportunity to be heard. Two years after the initial request

for appeal in September, 1996, the Practitioner was finally

granted a hearing, however, the hospital refused to allow the

MSO and other hospital employees to be called as witnesses

to testify regarding these and other material issues such as

alteration of documents by the MSO after the request for

appeal.

During this time the Practitioner attempted to seek

hospital privileges at other area hospitals but was ineligible

because of the time that had elapsed since she had completed

her ophthalmology residency training. Appendix at 60 - 63.

The hospital’s decision to terminate the Practitioner’s

privileges constitutes a “black mark” which must be reported

to various governmental agencies and insurance companies

raising the specter of unprofessional conduct or substandard

patient care. Without admitting privileges, the Practitioner is

unable to provide full ophthalmologic services to her patients.

The Practitioner is trained, duly licensed, and has patients

requesting services requiring admission to the only hospital in

the geographic area and the only hospital where the

Practitioner has privileges. The actions of the hospital have

destroyed the Practitioner’s ability not only to compete in the

-health care market but have threatened to destroy her practice

and have precluded her from providing the patient care she is

qualified and competent to perform.

REASON R WRIT

The Practitioner is a qualified and competent

physician who has been deprived of admitting privileges in the

only hospital located in her geographic area and the only

hospital where she has privileges. The hospital’s decision to

terminate the Practitioner’s admitting privileges was based

upon considerations totally unrelated to quality of patient

care concerns. The District Court found “It is undisputed,

and actually admitted within the Hospital’s correspondence,

that the actions taken in regard to Dr. Holmes’ privileges did

not in any way implicate her professional competence or

patient care. There is no allegation that Dr. Holmes is not a

fully qualified and competent physician, nor any allegation of

a single incident or problem with her medical care to any

patient.” Appendix 10 - 11. The decision to terminate the

Practitioner’s hospital privileges did not involve peer review

undertaken pursuant to the Health Care Quality Improvement

Act (HCQIA). Nevertheless, the District Court granted

summary judgment based upon the assertion that a hospital

and its medical staff cannot conspire under the Sherman Act,

15 U.S.C. § 1, because of the “intra-enterprise” doctrine

established by this Court in the cases of United States v.

Yellow Cab. Co., 332 U.S. 218 (1947) and Copperweld

Corp. v. Independence Tube Corp., 467 U.S. 752 (1984).

The intra-enterprise doctrine has heretofore been

applied by the Third, Fourth, and Sixth Circuits to preclude

judicial review of the peer review process involving patient

care issues. This case presents the important Federal question

whether the intra-enterprise doctrine should be extended to

decisions denying or terminating a physician’s hospital

privileges that do not involve the peer review process and

whether such an extension under the facts of this case

conflicts with prior relevant decisions of this Court.

The sole reason given for the termination of admitting

privileges was failure to comply with an inapplicable and

illegal requirement for referral of an arbitrary number of

9

patients to the Respondents. The Practitioner alleged in her

pleadings that the hospital’s referral quota violated the

Federal Stark, 42 U.S.C. § 1395nn, and Anti-Kickback, 42

U.S.C. § 1320a-7b, statutes. The clear legislative purpose of

the Stark and Anti-Kickback statutes is to prevent antitrust

injury to medical consumers. The District Court did not find

that the patient referral quota was legal but ruled the

Practitioner lacked standing to seek injunctive relief because

the statutes do not create a private cause of action. Other

Courts have held that medical practitioners have standing to

allege Stark and Anti-Kickback violations to obtain injunctive

relief.

The Court of Appeals sanctioned the District Court’s

granting of summary judgment. Under Rule 56, this decision

has so far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this Court’s

supervisory power. The District Court expressly ignored

important facts, found disputed facts in favor of the moving

party, and drew all inferences adversely to the Practitioner.

The facts in this case go far beyond a simple staffing decision.

The hospital in this case is wholly-owned by a corporation

which, through various partially-owned, affiliated entities,

directly competes with physicians in the health care market.

The District Court expressly ignored these crucial facts

stating, “Dr. Holmes has also made factual allegations

concerning her relationship with Durst Family Medicine, a

medical practice which sold its assets to the [Respondents] in

1994. However, a detailed rendition of these factual

allegations is not necessary as they do not relate directly to

the federal claims asserted.” Appendix at 11. In this case,

there are material questions of fact whether the hospital’s

corporate owner, through its partially-owned subsidiary, Best

Care Providers, engaged in predatory practices from which a

10

jury could find “a conscious commitment to a common

scheme designed to achieve an unlawful objective” in

violation of the Sherman Act. The predatory practices

ignored by the District Court included slander, attempting to

have the Practitioner evicted from her office space, the

systematic diversion of the Practitioner’s patients to Tenet’s

employee-physicians, canceling the Practitioner's Yellow

Pages telephone advertising, and terminating administrative

services. It is respectfully submitted these facts do relate

directly to the federal antitrust claims asserted. Whether

hospitals, their corporate owners, and partially-owned

affiliated entities should be afforded anti-trust immunity even

when they step outside a hospital’s traditional roles and

directly compete for medical patients is an iryportant federal

question that has not been, but should be, decided by this

Court. The Lower Court, by ignoring these crucial facts and

by deciding facts in the light most favorable to the

Respondents, applied an improper standard and so far

departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s

supervisory power.

ARGUMENT

L. WHETHER THE “INTRA-ENTERPRISE”

DOCTRINE SHOULD BE APPLIED TO

IMMUNIZE A HOSPITAL AND ITS

MEDICAL STAFF FROM ANTITRUST

LIABILITY WHEN THE HOSPITAL AND ITS

MEDICAL STAFF ARE NOT PERFORMING

“PEER REVIEW” AND TERMINATE A

PHYSICIAN’S ADMITTING PRIVILEGES

FOR REASONS NOT INVOLVING

QUESTIONS OF PROFESSIONAL

COMPETENCE OR QUALITY OF PATIENT

CARE.

The Eleventh Circuit recognized the importance of

hospital privileges to physicians in Bolt v. Halifax Hospital

Medical Center, 891 F.2d 819 (11th Cir. 1990) when it

noted, “A negative decision at one hospital [can] affect the

decision of another hospital; therefore ... a negative decision

at one hospital [can] be tantamount to excluding a doctor

from the profession as a whole.” Id. at 820.

“Without hospital admitting privileges, a physician

cannot properly treat patients and is therefore effectively

excluded from the market.”' “Staff privileges are the life-

blood of any medical practice. Without staff privileges,

doctors cannot perform many of the rudimentary tasks that

are required of a physician. In the absence of staff privileges,

they must rely on other practitioners to admit and care for

their patients in the hospital. Therefore, staff privileges are

essential to any successful practice.”? “In the ideal, the

[credentialing] committee carefully and impartially weighs

each doctor’s qualifications and then decides whether to

award or rescind privileges. It is difficult to forget, though,

that outside the hospital’s walls, these physicians are the same

doctors who potentially must compete for patients with the

new privileged physician.”? “A physician ... may directly

' Kurt Erskine, Square Pegs and Round Holes: Antitrust Law and

Privileging Decisions, 44 U. Kan. L. Rev. 399 (1966).

2 Id. at 401-402 citing John Neff, Physician Staff Privilege Cases:

Antitrust Liability and the Heath Care Quality Improvement Act, 29

Wm & Mary L. Rev. 609, 612-613.

> Jd. at 399 citing William S. Brewbaker, III, Antitrust Conspiracy

12

eq orrnes

benefit from limiting others’ access to the [hospital], because

it means fewer competitors with whom he must compete.

Doctors may choose to advance their own economic interests

through the hospital’s credentialing and peer review process

by refusing to award [or by terminating] privileges to

competent practitioners.”

In Hospital Building Co. v. Trustees of Rex Hospital,

425 U.S. 738 (1976), this Court held hospitals were subject

to the antitrust laws. This principal was strengthened by this

Court’s later decisions in Patrick v. Burget, 486 U.S. 94

(1988) and Summit Health Ltd. v. Pinhas, 500 U.S. 94

(1988) specifically holding a hospital’s peer review process

was subject to the antitrust law. Yet, as this case so plainly

illustrates, judicial review of the denial or termination of

hospital privileges for alleged violations of the antitrust laws

remains illusive.

Judicial review has often been limited by the

application of the “intra-enterprise” doctrine enunciated by

this Court in the cases of United States v. Yellow Cab. Co.,

332 U.S. 218 (1947) and rwel _vV. In

Tube Corp., 467 U.S. 752 (1984). This doctrine has been

applied by the Third, Fourth, and Sixth Circuits to preclude

judicial review of credentialing decisions challenged for

violating the Sherman Act’s prohibition of any “contract,

combination in the form of trust or otherwise, or conspiracy,

in restraint of trade or commerce,” 15 U.S.C. § 1, on the

grounds a hospital and its medical staff constitute a single

Doctrine and the Hospital Enterprise, 74 B.U.L.Rev. 67, 68 (1994).

* Id. at 402.

13

legal entity when making peer review decisions affecting a

physician’s hospital privileges.5

The Fourth Circuit, from which this Petition is taken,

is illustrative of the application of the intra-enterprise

immunity doctrine to circumvent judicial review in cases

involving loss of physician privileges. In Oksanen v. Page

Memorial Hospital, 945 F.2d 696 (4th. Cir. 1991), cert.

denied 112 S. Ct. 973 (1992), the en banc Fourth Circuit

held that, although technically two distinct legal entities,

when a hospital and its medical staff are performing peer

review they act in substance as one indistinct entity with a

unity of interest - increasing the quality of patient care - and,

therefore, their actions do not implicate the concerns of

section one of the Sherman Act.”6

The absolute exemption of hospital~ credentialing

decisions from antitrust liability on the ground of intra-

enterprise immunity is inconsistent with this Court’s holding

in Summit Health Ltd. v. Pinhas, supra. It is also

inconsistent with the Congressional intent of the Health Care

Quality Improvement Act (HCQIA), 42 U.S.C. § 11112,

which established the peer review process. Congress was

clearly aware of this Court’s decisions and chose to grant

hospitals and physicians only limited immunity from the

> Compare: Oksanen v. Page Memorial Hospital, 945 F.2d 696 (4th.

Cir. 1991), cert. denied 112 S. Ct. 973 (1992); Weiss v.. York

Hospital, 745 F.2d 786 (3rd. Cir. 1984, cert. denied 470 U.S. 1060

(1985); and Nurse Midwifery Assoc. v. Hibbet, 918 F.2d 605 (6th

Cir. 1990) amended 927 F.2d 904, cert. denied 112 S.Ct. 406 (1991)

with Bolt v. Halifax Hospital Medical Center, supra.

° See: Christopher Lauren, Oksanen v. Page Memorial Hospital:

The Fourth Circuit’s Antitrust Analysis for Peer Review Action

Under the Sherman Act, 6 BYU J. Pub. L. 603, 611 (1992).

14

antitrust laws when performing peer review. “The Patrick

decision was partly responsible for motivating Congress to

enact the Health Care Quality Improvement Act (“HCQIA”)

in 1986. HCQIA was designed to ‘immunize the medical

profession from antitrust liability for its peer review

activities...” “Many members of Congress opposed any grant

of immunity, fearing ‘that it could be used to shield not just

legitimate peer-review actions... but also illegitimate peer

reviews motivated by prejudice, anticompetitive purposes,

personal vindictiveness, or by some other concern wholly

unrelated to the quality of the physician’s medical care.”’

“Representative Ron Wyden said that the Act was not

intended to ‘shield doctors from liability for what are truly

anticompetitive business practices. The only protected

activities are those dealing with the professional behavior and

competence of individual practitioners.’ Additionally,

Congressman Waxman stated that the ‘bad faith peer review

activities permitted by the Patrick case could never obtain

immunity under H.R. 5540.’’8 Therefore, “To qualify for

immunity [under HCQIA], defendants must first demonstrate

that any action initiated by the peer review process was

motivated by ‘the reasonable belief that the action was in the

furtherance of quality health care.’”°

In Oksanen, supra., the Fourth Circuit detailed the

litany of complaints against Dr. Oksanen including abusive

and profane language, public outbursts disrupting hospital

operations, public accusations denigrating the quality of the

hospital’s and other physician’s patient care, failure to

” Td. at 808.

* Id. at 809.

° Erskine, supra. 44 U. Kan. L. Rev. at 415 citing 42 US.C.§

11112(a)(1)(1988).

15

provide on call coverage, delayed medical treatment

jeopardizing the welfare of a mother and her newborn child,

practicing medicine without a valid license, and professional

negligence resulting in the death of a patient all of which

clearly involved concerns about professional competence and

quality of patient care. Under the egregious circumstances,

the Fourth Circuit reasonably concluded the hospital and its

medical staff were performing peer review with a unity of

interest to insure quality patient care and, therefore, could not

conspire to violate Section 1 of the Sherman Act. The Court

was careful to point out that the direct economic competitors

of Dr. Oksanen abstained from the decision making process

and that the hospital was not a competitor so that the

“personal stake exception” to the intra-enterprise doctrine did

not apply. Having denied certiorari, it is obvious this Court

did not feel the application of the intra-enterprise immunity

doctrine in cases involving the peer review process conflicted

with the Court’s previous decision in Summit Health Ltd. v.

Pinhas, supra. |

This case presents the question whether the intra-

enterprise doctrine should be extended to protect hospital

credentialing decisions that do not involve the peer review

-process. The Respondents’ expert testified this case was not

peer review under HCQIA. Appendix at 107. Peer review

involves opening a specific medical chart or charts to review

the medical care given to a particular patient. The decision to

terminate the Practitioner’s admitting privileges in this case

did not involve any question of the Practitioner’s professional

competence or the quality of patient care. The District Court

Judge specifically found, “It is undisputed, and actually

admitted within the Hospital’s correspondence, that the

action taken in regard to Dr. Holmes’ privileges did not in

any way implicate professional competence or patient care.”

16

ee» ee

he ree ah etal tt I Crete Cw sare BSS

Appendix at 10-11.

The Practitioner is a good and ethical physician. She

graduated from the Medical University of South Carolina at

the top of her class. While still a medical student, she

completed a family medicine rotation at the Durst Family

Medicine practice located on Sullivan’s Island where the

Practitioner has lived with her family for 20 years. After

medical school, the Practitioner completed internship and

ophthalmology residency training. She graduated from the

Medical University of South Carolina’s Storm Eye Institute in

June of 1993. She began looking for office space to open a

practice and Durst Family Medicine offered to lease her office

space and to provide administrative, billing, reception, and

telephone services. General ophthalmologists are considered

primary eye care physicians and the proposed relationship

with a family medicine practice which had been serving the

community for almost fifty years seemed like a perfect match.

Like any other physician starting out the Practitioner

borrowed heavily to purchase and install expensive medical

equipment, renovate her office space, and to provide

operating capital in order to open her practice.

Advertisements were placed in the local newspapers and

telephone book Yellow Pages advertising was obtained

showing the address and telephone number shared with Durst

Family Medicine. Patients who called were greeted by the

Durst Family Medicine staff who scheduled appointments,

handled the patient charts, took care of patient billing, and

provided the myriad of administrative tasks associated with

the running of a medical practice. The Practitioner enjoyed a

close professional relationship with the physicians of Durst

Family Medicine and regularly consulted in the care of their

patients.

To practice ophthalmology it was of course necessary

17

that the Practitioner obtain hospital privileges. She applied

for and was granted associate staff privileges at the

Respondent East Cooper Community Hospital on July 25,

1994. The East Cooper community is a rapidly growing but

geographically isolated area separated from the greater

Charleston metropolitan area by the Charleston Harbor and

the Cooper and Wando Rivers. It was precisely because of

the area’s unique geographic features that the Respondents’

predecessor, AMI, applied for and was granted a state-

adjudicated certificate of need to build and operate a hospital

in the East Cooper community. Appendix 109 - 116-

With the demands of a young family and just starting

out as an ophthalmologist, the Practitioner discussed with

Elaine Meuli, the Medical Staff Coordinator, transferring to

the courtesy staff, a staff category which did not require the

Practitioner to refer any number of patients to the hospital in

order to maintain privileges. Appendix at 121 (Article IV,

Section 4). In November of 1994, the Practitioner transferred

to Courtesy staff. She completed her provisional year in July

of 1995 and was granted full Courtesy staff privileges.

Appendix at 56.

It was during this time that the Respondents

purchased East Cooper Community Hospital from AMI. The

Respondent Tenet HealthSystem Medical, Inc., also began

the acquisition of local primary care and specialty medical

practices thereby becoming a direct economic competitor in

the market place. Durst Family Medicine was one of the

practices purchased by the Respondents and was renamed

Best Care Providers. The Respondent’s COO clarified in his

deposition the Respondents do not own Durst Family

Medicine but only that “certain assets” of Durst Family

Medicine were purchased by Best Care Providers. Appendix

at 91 - 92, 94 - 95.

18

ARLE INE RR LN LEPINE EIR MELE SAE AS MGM NOY

The record further establishes the Respondents did

not purchase the Durst Family Practice building but coveted

the Practitioner’s office space located in it. The Respondent’s

COO testified in his deposition he first learned of the

Practitioner’s lease when “Jack said he was going to

terminate” the lease agreement. Appendix at 94. The

Respondents tried to lease the Practitioner’s office space

from the building’s owner. Appendix at 96 - 97, 98 - 99.

Fortunately, the owner honored his contract and commitment

to the Practitioner and declined the Respondents’ offer. The

Respondents then took a different tack and attempted to

pressure the office manager to increase the Practitioner’s

administrative fees by 500%. Appendix at 65, 98 - 100.

Although they continued to receive monthly payments for the

Practitioner’s telephone Yellow Pages listing which they

routinely renewed the year before, the Respondents canceled

the listing without notice. Appendix at 108 - 109: The

Respondents, acting through their partially-owned affiliate,

Best Care Providers, also discontinued the Practitioner’s

administrative services including reception _ services,

answering service, call service, file storage, and billing

services. The Respondents cavalierly dismiss these

complaints. But that’s not all they did. Without any

justification, they intentionally and systematically began to

divert the Practitioner’s existing and prospective patients to

~ Best Care Provider physicians. Appendix at 101.

With her landlord refusing to evict, with the

termination of the Practitioner’s administrative services, and

with the diversion of existing and prospective patients as a

backdrop, the Respondent hospital then subjected the

Practitioner to an unscheduled review of privileges on April

19

12, 1996."° Appendix at 57.

The Practitioner’s licensing and credentials had

always remained in good standing. Not a single patient

complaint, never mind malpractice claim, had been made

involving the Practitioner’s patient care. The termination of

the Practitioner’s hospital privileges which followed had

absolutely nothing to do with peer review or quality of

patient care concerns. Yet, when ultimately forced to seek

judicial review, the District Court refused to recognize any

distinction between peer review decisions made to prevent

unprofessional conduct or substandard patient care and other

staffing decisions made for purely economic reasons.

The District Court expressly chose to ignore all the

facts supporting an anti-competitive motivation for the

termination of the Practitioner’s admitting privileges. The

District Court stated, “Dr. Holmes has also made factual

allegations concerning her relationship with Durst Family

Medicine, a medical practice which sold its assets to the

[Respondents] in 1994. However, a detailed rendition of

these factual allegations is not necessary as they do not relate

directly to the federal claims asserted.” Appendix at 11.

Since neither professional competence nor quality of

patient care was involved in the decision to terminate the

Practitioner’s privileges, the decision was not peer review.

The policy considerations underlying the intra-enterprise

doctrine are inapplicable to credentialing decisions which do

not involve professional competence or patient care issues. It

is respectfully submitted the extension of the intra-enterprise

doctrine under the facts of this case is in direct conflict with

10 Although labeled a second request, the hospital has never been able

to produce a copy of the first request.

20

the purpose of peer review under HCQIA. It constitutes an

exception that swallows the rule announced by this Court in

the cases of Hospital Building Co. v. Trustees of Rex

Hospital, supra., Patrick v. Burget, supra., and Summit

Health Ltd. v. Pinhas, supra., that hospitals and staffing

decisions, even peer review decisions, are subject to review in

Federal Court for violation of the antitrust laws. This

important question of federal law affects the rights of good

physicians, including the Practitioner, who are being forced

out of practice by corporate medicine actively engaged in

efforts to monopolize regional medical markets by purchasing

essential hospital facilities and surrounding specialty and

primary care medical practices. The Practitioner is a good,

qualified, and competent physician who has been deprived of

admitting privileges in the only hospital located in the

geographic area. In fact, the hospital argued for and obtained

a state-adjudicated certificate of need essentially granting it

monopoly status. The Practitioner has been deprived of

admitting privileges in the only hospital where she has

privileges. The actions taken will affect her ability to practice

her chosen profession not just in the area where she lives but

in any location. The Practitioner has complained of specific

predatory conduct undertaken by the Respondents and their

affiliated entities in direct economic competition with the

Practitioner but has had the door to the Federal Courthouse

summarily closed based upon an unwarranted and dangerous

extension of the intra-enterprise doctrine to credentialing

cases not involving peer review. It is respectfully submitted

this Court should grant the Practitioner’s request to consicer

this important question which has not been, but should be,

decided by this Court in a way that is consonant with and

which gives effect to the prior relevant decisions of this

Honorable Court.

21

II. WHETHER A PHYSICIAN WHOSE

HOSPITAL PRIVILEGES HAVE BEEN

TERMINATED SOLELY FOR FAILURE TO

REFER AN ARBITRARY NUMBER OF

PATIENTS TO THE HOSPITAL HAS

STANDING TO REQUEST INJUNCTIVE

RELIEF ON THE GROUND THE

HOSPITAL’S PATIENT REFERRAL

REQUIREMENT VIOLATES FEDERAL LAW.

As a physician, the Practitioner’s paramount

responsibilities are to her patients. As set forth above, the

Practitioner’s professional competence and the quality of her

patient care has never been questioned by the hospital, her

fellow physicians, her patients, or by the Courts below. The

Practitioner’s care and treatment of her patients has also been

subject to review and regulation by various State and Federal

health care agencies and health insurance companies. She

cannot admit patients to the hospital or perform medical

procedures unless those services are deemed medically

necessary and in accordance with established medical criteria.

To prevent unnecessary and costly ophthalmic surgery, often

desired by patients, ophthalmologists in particular are closely

regulated in this regard.

In this case, the sole reason the Practitioner’s hospital

privileges were terminated is because she did not refer an

arbitrary number of patients to the Respondent hospital for

treatment. The Practitioner’s Amended Complaint challenged

Respondents’ enforcement of the patient referral requirement

on the grounds it was illegal and violates the Federal Anti-

Kickback Statute, 42 U.S.C. § 1320a-7b, and Stark Law, 42

22

U.S.C.§ 1395nn."' The Anti-Kickback statute provides that

whoever knowingly or willfully solicits or receives any

“remuneration ... directly or indirectly, overtly or covertly, in

_ cash or in kind in return for referring an individual to an entity

for the furnishing of any item or service for which payment

may be made in whole or in part under a Federal health care

program shall be guilty of a felony and upon conviction shall

be fined not more than $25,000.00 or imprisoned for not

more than 5 years or both.” The Stark Law provides that if a

physician has a “financial relationship” with an entity, then the

physician may not make a patient referral to the entity for the

furnishing of health services, including inpatient and out-

patient hospital services, for which payment may be made

under a Federal health care program. A “financial

relationship” is defined to include any “compensation

arrangement” involving any “remuneration directly or

indirectly, overtly or covertly, in cash or in kind” between the

physician and an entity. 42 U.S.C. §1395nn(a)(2)(B) and

(h)(1)(A)-(B). Congress introduced the term “remuneration”

in the 1997 amendments to the act to broaden the reach of

the law which previously had prohibited only “kickbacks,

bribes, and rebates.” Hanlester Network v. Shalala, 51 F.3rd

1390, 1398 (9th Cir. 1995).

The hospital bylaws in this case create an explicit guid

pro quo: in order to maintain essential hospital privileges a

physician must refer an arbitrary number of patients to the

hospital for treatment. The Respondent’s expert and CEO

both conceded hospital staff privileges have a significant

value to a physician. Appendix at 107. In Polk County,

'' The Petitioner also alleged violations of similar State statues

including the South Carolina Provider Self-Referral Act, S.C. Code

Ann. § 44-113-10, et seq.

23

Texas v. Peters, 800 F. Supp. 1451 (E.D. Tex. 1992), the

Texas District Court held that a recruitment agreement

conditioned upon the physician referring patients to the

hospital was a violation of the Stark law.

The harm sought to be prevented by these statutes is

not just hypothetical in this case. Discovery revealed that

physicians complied with the illegal referral quota by seeing

patients in the much more expensive hospital emergency

room. Appendix at 90, 107. When the Practitioner attempted

to discuss the patient referral quota with the Chairman of the

Credentials Committee, he as much as admitted the anti-

competitive purpose of the requirement by bluntly informing

her, “Under managed health care, there’s a smaller pie and

some doctors are going to be left behind.” Appendix at 60.

Additional harm resulted in the form of limited choice. The

unauthorized patient referral quota was improperly applied to

one or more other ophthalmologists. A review of the

ophthalmology E.R. call schedules for August, 1997, and for

September, 1997, shows that Dr. Grady was the sole

remaining general ophthalmologist on active staff after these

actions. Appendix at 71-78. The other physicians listed on

the call schedule were all subspecialists whose practices were

limited to retina, glaucoma, and oculo-plastics. After the

Practitioner's privileges were terminated, Dr. Grady

advertised he was the only full time general ophthalmologist

practicing in the East Cooper market. Appendix at 78-79.

Two years after the Practitioner’s initial appeal on

September 17, 1996, the Practitioner was finally granted a

flawed hearing. She was denied the right to call hospital

employees as witnesses. She was denied a report of the

Committee’s findings and recommendations to the Board.

She was denied the right to appear in person or by counsel

before the Board. It is hardly surprising the Practitioner was

24

forced to carry the fight for her professional life to the

District Court after the Board “rubber-stamped” the

termination of privileges.

What is surprising is that the District Judge denied the

Practitioner the right to challenge the patient referral

requirement as being illegal and unenforceable under the

Anti-Kickback and Stark statutes. Relying upon West Allis

Memorial Hospital v. Bowen. 852 F. 2d 251 (7th Cir. 1988)

Vv. 706 F.2d 251 (4th

~ 1983), the District Court ruled the statutes do not create

a private cause of action and, therefore, the Practitioner

lacked standing to seek injunctive relief. It is respectfully

submitted the Judge’s reliance on the Seventh Circuit

decision was misplaced. Although the Seventh Circuit in

West Allis Memorial Hospital v. Bowen, supra., held the

statutes did not create a private cause of action, they reversed

the granting of summary judgment bythe District Court and

remanded the action for consideration whether the plaintiff

was entitled to injunctive relief under anti-trust causes of

action. Other cases cited by the District Court also allowed

plaintiffs to assert violations of the statutes to void

contractual arrangements. See:

926 F. Supp. 835

Inc. v. Quantum Health Services, Inc.,

(E.D. Ark. 1996); Modern Medical Laboratories, Inc. v.

1994 WL

Smith-Kline Beecham Clinical Laboratories, Inc.,

449281 (N.D. Ill. 1994); Polk County v. Peters, 800 F. Supp.

1451 (E.D.Tex. 1992); Vana v. Vista Hospital Systems, Inc.,

1993 WL 597402 (Cal. Super. 1993); Feldstein v. Nash

Se A bese 2d 673

(E.D.N.C. 1999).

The sole reason the Practitioner’s hospital privileges

were terminated is because she failed to refer an arbitrary

number of patients to the hospital. The Practitioner claims the

25

patient referral requirement violates Federal Anti-Kickback

and Stark laws. It is hornbook contract law that illegal

contracts are unenforceable. The District Court did not find

the patient referral requirement was legal but denied the right

to even raise the issue. This important question of federal law

has not been, but should be, decided by this Court to give

effect to the intent and purpose of the Federal laws and to

resolve the conflict among the Circuits.

Ill. WHETHER THE LOWER COURTS APPLIED

AN IMPROPER STANDARD OF REVIEW

UNDER RULE 56(c) BY EXPRESSLY

REFUSING TO CONSIDER IMPORTANT

FACTS SUPPORTING THE

PRACTITIONER’S ANTITRUST CLAIMS AND

DECIDING DISPUTED FACTS IN THE LIGHT

MOST FAVORABLE TO THE

RESPONDENTS.

The Practitioner brought her case alleging predatory

anti-competitive practices that go far beyond a “staffing

problem” at a local hospital. The hospital in this case had

stepped outside of its traditional role and had become a direct

competitor in the health care market. It had purchased a local

primary care medical practice that was in direct competition

with the Practitioner. As set forth above, this partially-owned

affiliate of the Respondents, Best Care Providers, engaged in

willful predatory conduct which has resulted in the

Practitioner’s loss of her only hospital admitting privileges at

the only hospital in the geographic area and made it virtually

impossible for the Practitioner to provide her patients with

the medical care and treatment she is qualified and competent

to perform.

Summary judgment is proper only when there is no

genuine issue of material fact. Rule 56(c). In other words, to

grant summary judgment, the court must determine that no

reasonable jury could find for the nonmoving party on the

evidence before it. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). In evaluating a motion for summary

judgment, the court must view the evidence in the light most

favorable to the nonmoving party. Pignons AS.

DeMecanique v. Polaroid Corp., 657 F.2d 482 (lst Cir.

1981); Perini _ Vv. Perini Const. Inc., 915 F.2d 121

(4th Cir. 1990).

The District Court expressly ignored the facts offered

by the Practitioner to establish antitrust predatory conduct.

The District Court’s Order granting the Respondent’s

summary judgment stated, “Dr. Holmes has also made factual

allegations concerning her relationship with Durst Family

Medicine, a medical practice which sold its assets to the

[Respondents] in 1994. However, a detailed rendition of

these factual allegations is not necessary as they do not relate

directly to the federal claims asserted.” Appendix at 11.

The District Court applied an improper standard when

it ignored the facts offered by the Practitioner establishing the

Respondents’ concerted activity. As set forth above, these

additional facts clearly distinguish this case from BCB

Anesthesia Care v. Passavant Memorial Area Hospital, 36

F.3d 664 (7th Cir. 1994) relied upon by the District Court in

granting summary judgment. In discussing the reasons for

refusal to apply antitrust law in the context of a physician’s

hospital privileges, the Seventh Circuit concluded, “often it

appears that in the record relied upon is the absence of facts

indicating special circumstances raising antitrust concerns.”

The Seventh Circuit concluded by saying, “Although we

hesitate to say that [a staffing decision at one hospital] ... can

27

~

never state an antitrust claim, we believe it is incumbent upon

the plaintiff to plead some additional facts from which it can

be inferred that the case falls within the ambit of the Sherman

Act.” Seglin v. Easau, 769 F.2d 1274 (7th Cir. 1985).

The decision by the Lower Court in this case does

exactly what the Seventh Circuit said it was not prepared to

do - rule a staffing decision at a hospital can never state an

antitrust claim. Such a ruling directly conflicts with prior

relevant decisions of this Court. Because the Lower Court

refused to even consider any of the facts or circumstances

offered by the Practitioner, this Court is unable to determine

whether facts and circumstances raising antitrust concerns

either did or did not exist. The District Court failed to even

consider whether the patient referral requirement constituted

an illegal tying agreement or per se violation of the Sherman

Act under Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466

U.S. 2 (1984) when, as in this case, the hospital which

possesses an “essential facility” has stepped outside of its

traditional role to become 4 competitor for primary care

patients in the health care market.

The Court of Appeals’ sanctioning of the District

Court’s decision in a per curiam decision without comment

has so far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this Court’s

supervisory power. The District Court applied an improper

standard when it ignored important facts and found disputed

facts in favor of the moving party. The decision of the Lower

Court is tantamount to affording hospitals, their corporate

owners, and partially-owned affiliated entities absolute

antitrust immunity, even when they step outside their

traditional roles and directly compete for patients. This

important federal question has been previously decided in the

cases of Hospital Building Co. v. T f Rex Hospi

28

425 U.S. 738 (1976); Patrick v. Burget, 486 U.S. 94 (1988)

and Summit Health Ltd. v. Pinhas, 500 U.S. 94 (1988). This

Court has consistently held that credentialing decisions of

hospitals, even when made as part of the peer review process,

are subject to the Federal antitrust laws. The Practitioner

respectfully requests that this Court exercise its supervisory

power and remand this case for specific findings of fact and

rulings of law so that it is possible to determine whether the

facts of this case entitle the Practitioner to seek redress in the

Federal Courts.

CONCLUSION

For the foregoing reasons, the Practitioner requests

that this Honorable Court grant the Petition for Writ of

Certiorari.

July 29, 2001

Respectfully submitted,

MK

q: : M.D, Pro Se

ost Office

Sullivans Isd., SC_

(843) 883-3010 ~

29