883 F.Supp. 1016 (E.D.Pa. 1995), Civ. A. 93-6774, Mathews v. Lancaster General Hosp.

Docket Nº:Civ. A. 93-6774
Citation:883 F.Supp. 1016
Party Name:Mathews v. Lancaster General Hosp.
Case Date:May 04, 1995
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

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883 F.Supp. 1016 (E.D.Pa. 1995)

Robert S. MATHEWS, M.D., Plaintiff,


LANCASTER GENERAL HOSPITAL, Lancaster General Hospital Foundation, Columbia Hospital, Columbia Hospital Foundation, Gerald W. Rothacker, Jr., M.D., Thomas R. Westphal, M.D., John H. Shertzer, M.D., J. Paul Lyet, M.D., James P. Argires, M.D., Hugh H. Hoke, Jr., M.D., Defendants.

Robert S. MATHEWS, M.D., Plaintiff,



Civ. A. Nos. 93-6774, 94-4647.

United States District Court, E.D. Pennsylvania.

May 4, 1995

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Judah I. Labovitz, Richard M. Squire, Roberta A. Golden, Lawrence J. Schempp, Philadelphia, PA, for plaintiff.

Reeder R. Fox, Wayne A. Mack, Thomas Ermi, Philadelphia, PA, for Lancaster defendants, Rothacker, Westphal, Shertzer, Lyet, Argires, Hoke.

Kathleen M. Chancler, Philadelphia, PA, for Columbia defendants.

John G. Harkins, Jr., Eleanor Morris Illoway, Philadelphia, PA, for defendant Orthopedic Associates of Lancaster.


VAN ANTWERPEN, District Judge.

These consolidated actions stem from a physician peer review proceeding which eventually led to a curtailment of plaintiff's surgical privileges at the defendant hospitals. The Complaints in both cases allege a conspiracy in restraint of trade in violation of section one of the Sherman Act, 15 U.S.C.§ 1, as well as various state law claims. Currently before the court are all defendants' motions for summary judgment. We have subject matter jurisdiction over the antitrust claims pursuant to 28 U.S.C. §§ 1331 and 1337, and 15 U.S.C. §§ 4, 15, and 26 and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367. 1


No party disputes the following facts.

A. The parties

Plaintiff Robert S. Mathews, M.D. is an orthopedic surgeon who specializes in spine trauma and spine diseases. Since 1988, Dr. Mathews has been a corporate partner with another orthopedic surgeon, George M. Kent, M.D., who also performs spine surgery. Dr. Kent is not a party to this suit.

Defendants Lancaster General Hospital ("LGH") and Lancaster General Hospital Foundation ("LGH Foundation") are non-profit corporations which operate and support, respectively, a hospital in Lancaster, Pennsylvania. Defendants Columbia Hospital

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("Columbia") and Columbia Hospital Foundation, Inc. ("Columbia Foundation") are non-profit corporations which operate and support, respectively, a hospital in Columbia, Pennsylvania. The LGH Foundation is the parent organization of LGH, and the Columbia Foundation is the parent organization of Columbia. On February 28, 1994, the LGH Foundation and the Columbia Foundation entered into a "Membership Agreement" which resulted in an affiliation between the two hospitals.

Dr. Mathews has had active staff privileges at LGH since 1973. His office at 554 North Duke Street is directly across the street from LGH. Dr. Mathews' first association with Columbia occurred in April of 1992, when he was granted temporary privileges there in the Division of Surgery, Orthopedics.

The six individual physician defendants, Drs. Rothacker, Westphal, Shertzer, Lyet, Argires, and Hoke, are four orthopedic surgeons, a neurosurgeon, and a radiologist, respectively. Drs. Shertzer and Argires are members of LGH's Board of Directors ("the LGH Board"). Dr. Hoke is an ex-officio member of the LGH Board.

Defendant Orthopedic Associates of Lancaster ("OAL") is a professional corporation located in Lancaster, Pennsylvania. OAL is an orthopedic surgery group which practices at LGH. Drs. Rothacker, Westphal, and Shertzer practice with OAL and are shareholders of the corporation.

B. The December 1989 incident and investigation

The chain of events that eventually led to the filing of this lawsuit began on December 27, 1989. That morning, Dr. Kent was performing spinal surgery on a patient at LGH. Dr. Mathews was listed as co-surgeon for the operation. During the procedure, a high-speed drill slipped, causing damage to the patient's esophagus. Dr. Kent attempted to repair the esophagus, but did not seek assistance or a consultation regarding the damage done. According to Dr. Kent, Dr. Mathews was not present in the room at the time of the incident, at least not until after the repair of the esophagal tear had been completed. Later that day, the patient experienced severe problems and had to undergo a second, emergency surgery to repair the tear.

As a result of these complications, Dr. Kent was suspended for five days, and an Ad Hoc Committee was appointed to investigate the incident. Defendant Hugh H. Hoke, Jr., M.D. was chosen to be the chairman of the committee, which consisted of several other physicians who are not parties to this action ("the Hoke Committee"). After a five-day investigation, the Hoke Committee concluded that Dr. Kent had acted inappropriately by virtue of his failure to seek a consultation once harm had been done to the patient's esophagus. In a report dated January 4, 1990, the committee recommended that "a focused review of all Dr. Kent's cases should be performed by the Quality Assurance Committee of the Department of Surgery for a period of six months."

The Hoke Committee's report was forwarded to Dr. Kent on the same day it was issued. In response, by way of a letter dated January 5, 1990, Dr. Kent made minor modifications to the report and indicated his agreement with the recommended corrective action, including the focused review of his cases.

Although recognizing that plaintiff Dr. Mathews may not have been in the operating room during the events in question, in its report the Hoke Committee concluded that as co-surgeon, he bore "some responsibility for the incident." On January 5, 1990, Mr. Michael Young, LGH's Chief Executive Officer, wrote Dr. Mathews a letter informing him of this conclusion.

C. LGH's focused review of Dr. Kent's cases

In accordance with the Hoke Committee's recommendation, a focused review of Dr. Kent's cases was indeed performed. However, for reasons that are disputed, the review was not performed by the Quality Assurance Committee of the Department of Surgery as suggested in the report. Rather, it was performed by a second Ad Hoc Committee selected by defendant Department of Surgery Chairman Gerald W. Rothacker, Jr., M.D., and composed of himself and two other board

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certified orthopedic surgeons, defendants Thomas R. Westphal, M.D. and J. Paul Lyet, M.D. ("the Rothacker Committee").

The Rothacker Committee reviewed surgical cases covering a period from January 1990 to June 1990 and involving Dr. Kent as either the primary or assisting surgeon. The committee's review encompassed 208 cases and took approximately two years, beginning sometime in March of 1990. At the end of the review, the committee concluded that 27 of the 208 cases evidenced a substandard level of care.

During the course of its focused review of Dr. Kent, the Rothacker Committee discovered that the medical records in almost every case reviewed identified plaintiff Dr. Mathews as participating in the surgery in some capacity. In particular, it was discovered that 23 of the 27 cases which were found not to meet the standard of care involved spine surgery, and that Dr. Mathews was the primary surgeon in each of those cases.

Dr. Rothacker reported the findings of the committee by way of a March 19, 1992 letter to then-President of the LGH Medical and Dental Staff Robert P. Johnson, M.D. and a report to the Executive Committee of the Medical and Dental Staff on April 6, 1992. The letter recommended that the 27 files rated substandard by the committee be sent to an outside agency for further review and stated that "[i]f this agency agrees that these cases were not managed in an acceptable fashion, a restriction of privileges would be indicated." Attached to the letter was a list of the cases at issue, with comments as to each.

Both Dr. Kent and Dr. Mathews were sent copies of Dr. Rothacker's March 19th letter. Subsequently, in a letter dated April 30, 1992, Dr. Johnson wrote to Dr. Mathews, informing him that the review of Dr. Kent's cases had included a review of his work and that the Medical and Dental Staff Executive Committee was going to have an outside consultant review the cases in question. Attached to this letter was a copy of the minutes of the April 6, 1992 meeting of the Executive Committee. The minutes also indicated that the review of Dr. Kent had involved a review of Dr. Mathews' work, and stated that review by an outside review agency "may result in a recommendation regarding Dr. Mathews' clinical privileges."

D. The independent review

LGH retained the American Medico-Legal Foundation to select an independent consultant to review the cases deemed substandard by the Rothacker Committee. The Foundation chose Philip D. Wilson, Jr., M.D. of Cornell Medical College.

Drs. Kent and Mathews were given an opportunity to submit to Dr. Wilson additional information regarding the medical files selected for review, and both submitted some supplementary materials. On March 18, 1993, after reviewing all the information submitted by LGH and Drs. Mathews and Kent, Dr. Wilson issued a report concluding that the quality of care rendered by Drs. Mathews and Kent was inadequate and below acceptable standards in several respects. Dr. Wilson recommended that both doctors' privileges to perform spine surgery be restricted until they were able to "demonstrate a renewed and updated understanding of present day principles and practice of this type of surgery."

By letter of...

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