693 F.3d 1269 (10th Cir. 2012), 09-5124, Cohlmia v. St. John Medical Center

Docket Nº:09-5124.
Citation:693 F.3d 1269
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:George S. COHLMIA, Jr., M.D. and Cardiovascular Surgical Specialists Corp., an Oklahoma Corporation, Plaintiffs-Appellants, v. ST. JOHN MEDICAL CENTER, Howard W. Allred, M.D., and William C. Burnett, M.D., Defendants-Appellees.
Attorney:Michael L. Barkett, The Barkett Law Firm PLLC, Tulsa, OK, for Appellants. William H. Spitler, McDonald, McCann & Metcalf, LLP (G. Michael Lewis, Doerner, Saunder, Daniels & Anderson, LLP, Tulsa, OK, and James W. Conner, Jr., and Jason L. Glass, Richards & Connor, PLLP, Tulsa, OK, with him on the ...
Judge Panel:Before TYMKOVICH, McKAY, and HOLMES, Circuit Judges.
Case Date:September 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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693 F.3d 1269 (10th Cir. 2012)

George S. COHLMIA, Jr., M.D. and Cardiovascular Surgical Specialists Corp., an Oklahoma Corporation, Plaintiffs-Appellants,

v.

ST. JOHN MEDICAL CENTER, Howard W. Allred, M.D., and William C. Burnett, M.D., Defendants-Appellees.

No. 09-5124.

United States Court of Appeals, Tenth Circuit.

September 7, 2012

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Michael L. Barkett, The Barkett Law Firm PLLC, Tulsa, OK, for Appellants.

William H. Spitler, McDonald, McCann & Metcalf, LLP (G. Michael Lewis, Doerner, Saunder, Daniels & Anderson, LLP, Tulsa, OK, and James W. Conner, Jr., and Jason L. Glass, Richards & Connor, PLLP, Tulsa, OK, with him on the brief), Tulsa, OK, for Appellees.

Before TYMKOVICH, McKAY, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Dr. George Cohlmia, a cardiovascular and thoracic surgeon in the Tulsa, Oklahoma area, sued St. John Medical Center (SJMC) alleging a number of federal and state antitrust and business tort claims.1

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His claims followed SJMC's suspension of his medical privileges after a pair of surgeries, one resulting in death and another in permanent disfigurement. In response, SJMC asserted an affirmative defense that it was immune under federal law from damages pursuant to the Health Care Quality Improvement Act, 42 U.S.C. § 11101, et seq. (HCQIA). SJMC also moved for summary judgment on the antitrust and tort claims, arguing they failed for lack of evidentiary support.

The district court granted summary judgment on all claims, finding SJMC was immune from damages under the HCQIA, and further that Dr. Cohlmia had not met his burden of showing disputed facts that would demonstrate anticompetitive conduct or injury. Exercising jurisdiction under 28 U.S.C. § 1291, and after a thorough de novo review of the record, we AFFIRM the district court's grants of summary judgment, and the cost award to SJMC.

I. Background

Dr. Cohlmia's claims arise from two distinct events. The first involves SJMC's suspension of his medical privileges following two surgeries performed at its hospital in June 2003. The second involves Dr. Cohlmia's attempts at developing a specialty heart hospital in 2001 and 2002.

A. SJMC Surgeries

In June 2003, Dr. Cohlmia performed thoracotomy surgeries at SJMC on two patients diagnosed with lung cancer. One patient died seven days later and the other was permanently disfigured as a result of the surgery. Following a report of these results, Dr. Allred, SJMC Vice-President of Medical Affairs (and a physician specializing in colorectal surgery), conducted a review of the surgeries to assess whether any physician error was involved. During the course of his review of the surgeries, he interviewed a pathologist, a thoracic surgeon, the medical oncologist who treated one of the patients post-surgery, and a pulmonologist. Ultimately, Dr. Allred determined that " there was an inadequate workup ... before [the patients] were operated on." Aple. Supp. App. at 1005. As a result, he and the members of the hospital's Medical Staff Executive Office concluded Dr. Cohlmia's treatment of the two patients demonstrated " significant error in clinical judgment," and that his continued practice at SJMC posed potential harm to patients. Id. at 1060-72. Exercising authority pursuant to the SJMC Medical Staff Bylaws, Dr. Cohlmia's privileges to practice at SJMC were suspended.

Once informed of this decision, and in accordance with SJMC bylaws, Dr. Cohlmia immediately requested a formal hearing to respond to the concerns. Dr. Cohlmia met with Dr. Allred and David Pynn, the President of SJMC, prior to the hearing, but no resolution of the suspension issue was reached. At a three-day hearing in August 2003, presided over by former United States District Court Judge Thomas R. Brett, Dr. Cohlmia presented the testimony of seven physicians, including one expert, and SJMC presented the testimony of seven physicians, including three experts. Dr. Cohlmia testified at length during the hearing. In September 2003, Judge Brett issued a Report, Recommendation and Judgment, finding that the suspension of Dr. Cohlmia was " the result of a thorough review, by appropriate SJMC multidisciplinary medical staff physician specialists, of the medical records regarding major thoracic surgery procedures." Id. at 563. With respect to the patient who subsequently died, Judge Brett found that Dr. Cohlmia's actions demonstrated " a lack of sound medical judgment," and a " marked deviation from the recognized

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standard of care." Id. at 569. With respect to the patient who was disfigured, Judge Brett found that " Dr. Cohlmia's failure to employ extensive workup and staging prior to" the surgery " reflected a gross deviation in medical judgment." Id. at 574. Ultimately, Judge Brett concluded that SJMC " was justified for medical reasons in summarily suspending Dr. Cohlmia's medical and surgical privileges pursuant to ... SJMC By-laws." Id. at 574-75.

Subsequent to Judge Brett's findings, the Medical Executive Committee of the SJMC Medical Staff reviewed the Report and voted, thirteen to two, to uphold Dr. Cohlmia's suspension. The SJMC Board of Directors approved the Report as well, after giving Dr. Cohlmia another chance to present formal opposition to Judge Brett's findings. By November 2003, all of the review proceedings were concluded and Dr. Cohlmia's medical privileges were terminated.

B. Specialty Heart Hospital

Prior to his initial suspension, Dr. Cohlmia participated in several business ventures that bear on the claims in this appeal.

In 1994, Dr. Cohlmia founded Cardiovascular Surgical Specialists Corp. (CVSS), the corporate entity through which he practices. CVSS, which employed a number of associate physicians in addition to Dr. Cohlmia, provided a variety of surgical services, including cardiovascular surgery, thoracic surgery, vascular surgery, and endovascular surgery. In June 2003, Dr. Cohlmia personally had active medical staff privileges at several hospitals in the Tulsa area: SJMC, Hillcrest Medical Center (HMC), Saint Francis, and SouthCrest.

In the spring of 2001, Dr. Cohlmia began exploring the idea of opening a specialty heart hospital in Tulsa. He retained the services of a consulting group, Technology Risk Management Group, along with other professionals to assist him in this project (collectively, the Development Team). In February 2002, Saint Francis— where Dr. Cohlmia had privileges— announced its own plans to open a free-standing heart hospital, operating as a joint venture between Saint Francis and local physicians acting as investors. Many of the physician investors had previously been solicited by the Development Team as potential investors in Dr. Cohlmia's venture. In April 2002, the Development Team distributed a Private Placement Memorandum (PPM) to potential investors. The PPM included business plans, financial projections, organizational documents, and the terms under which investors could participate. Notably, the PPM also acknowledged Saint Francis's proposed heart hospital, describing it as " slightly larger," but " similar in scope of services as the one described in this offering." Id. at 1719.

Dr. Cohlmia's venture failed to attract any investors and the offer made by the PPM expired at the end of May 2002. The CEO of the consulting group retained by Dr. Cohlmia later stated that the venture failed because many potential investors were uncomfortable with the level of control that Dr. Cohlmia would have over the hospital, given that he was known " for not being able to maintain business associations," and that he " had been involved in litigation with a number of former business associates." Id. at 1919. In addition to having been beaten to the market by Saint Francis, the consultant offered his " professional opinion" that, by June 2002, it was clear that the venture " would not be successful." Id. at 1920.

Beginning in early 2003, HMC instituted a moratorium on certain high-risk, cardiovascular surgical procedures— procedures that Dr. Cohlmia performed on a regular basis. As a result of the moratorium, Dr.

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Cohlmia shifted much of his practice to SJMC. After learning of his suspension at SJMC, HMC also placed restrictions on Dr. Cohlmia's privileges in July 2003. In October 2004, after review of certain cases at HMC, the HMC Medical Executive Committee recommended that Dr. Cohlmia's privileges not be renewed. In April 2006, after several hearings and reviews— during which time Dr. Cohlmia continued to practice at HMC— the decision was affirmed. Additionally, Dr. Cohlmia voluntarily relinquished his privileges at SouthCrest and Saint Francis.2

While the review at HMC was ongoing, Dr. Cohlmia and Tahlequah City Hospital (TCH) formed a joint venture in Tahlequah, Oklahoma, where Dr. Cohlmia continues to practice at this time. He draws patients from the same market area that SJMC operates in, and he describes the venture as " successful," and with " excellent" results. Id. at 1297. He also continues to see patients out of a non-surgical office in Tulsa.

C. Procedural History

Dr. Cohlmia filed his First Amended Complaint in September 2005, raising a number of claims. As a result of the dismissal and repleading of some claims, the remaining claims before the district court below were: (1) violations of Sections 1 and 2 of the Sherman Antitrust Act, and Section 4 of the Clayton Act; (2) violations of the Oklahoma Antitrust Reform Act; and (3) tortious interference with contract and prospective advantage. SJMC asserted an affirmative defense pursuant to the HCQIA that it was immune from damages.

Dr. Cohlmia's claims survived a motion to dismiss, Cohlmia v. Ardent Health Services, LLC, 448 F.Supp.2d 1253, 1265 (N.D.Okla.2006) (Cohlmia I), but...

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