951 F.2d 1268 (D.C. Cir. 1991), 91-7002, Johnson v. Greater Southeast Community Hosp. Corp.

Docket Nº:91-7002.
Citation:951 F.2d 1268
Party Name:Harold D. JOHNSON, M.D., Appellant, v. GREATER SOUTHEAST COMMUNITY HOSPITAL CORPORATION, et al., Appellees.
Case Date:December 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1268

951 F.2d 1268 (D.C. Cir. 1991)

Harold D. JOHNSON, M.D., Appellant,



No. 91-7002.

United States Court of Appeals, District of Columbia Circuit.

December 13, 1991

Argued Oct. 23, 1991.

Page 1269

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-01992).

Shelley D. Hayes, Washington, D.C., for appellant.

Arthur D. Burger, with whom Nicholas S. McConnell, Washington, D.C., was on the brief, for appellees.

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Before MIKVA, Chief Judge, WALD and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Dr. Harold D. Johnson appeals the dismissal of his antitrust, civil rights and tort claims against Greater Southeast Community Hospital ("Greater Southeast" or "Hospital") of Washington, D.C. and certain individuals affiliated with the Hospital. Appellant alleges that appellees have engaged in a course of conduct designed to prevent him, for racially discriminatory and anticompetitive reasons, from providing obstetrical services to Medicaid recipients in Ward 8 of the District of Columbia. Finding that appellant's Medical Staff membership and privileges at the Hospital had not been terminated, the district court dismissed appellant's suit as unripe. We reverse the dismissal and remand for further proceedings to determine (1) if appellant's Medical Staff membership and privileges are, in fact, now terminated; and (2) if appellant's claims of injury apart from the termination of his Medical Staff membership and privileges are ripe for review.

Appellant also appeals from the district court's denial of his motion for summary judgment on his civil rights claims. Because a denial of a motion for summary judgment is not an appealable order, we decline to rule on that issue.

Finally, the district court sealed the entire record in this case, with the exception of appellant's complaint. Appellant has moved this court to unseal the record. We decline to do so at this time, but urge the district court to give serious consideration, on remand, to any renewed motion to unseal in light of this circuit's demanding standards governing the sealing of judicial records.


    Dr. Harold D. Johnson, a board-certified physician specializing in obstetrics and gynecology, became a member of the Active Medical Staff of the Hospital in 1981. From 1981 until 1988 he applied for, and was granted, reappointment to the Active Medical Staff without limitation. In January, 1989, however, the Chairman of the Hospital's Department of Obstetrics and Gynecology reported to the Medical Staff Executive Committee ("MSEC") that he had become aware of quality of care issues concerning Dr. Johnson. The MSEC established a six-member ad hoc committee to investigate; three of the members of that committee are named as defendants in Dr. Johnson's suit.

    In July, 1989, while the MSEC's investigation was ongoing, Greater Southeast entered into an exclusive contract with the Johns Hopkins Health Plan, a health maintenance organization, to provide in-patient services to the Plan's Washington, D.C. subscribers. At the same time, United Health Services, a preferred provider organization composed of certain members of Greater Southeast's Medical Staff, entered into an exclusive contract with the Johns Hopkins Health Plan to provide physician services to the Plan's District subscribers. Appellant's 1989 applications for membership in the Johns Hopkins Plan and United Health Services were both denied. Three of the physician defendants in this suit are members of both the Johns Hopkins Plan and United Health Services.

    The MSEC finished its investigation on August 14, 1989, concluding that appellant should be subjected to "a severe reprimand, focused review, concurrent monitoring and supervision of surgical cases for a minimum of 24 months." Johnson v. Greater Southeast Community Hosp.

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    Corp., No. 90-1992, Memorandum Opinion ("Mem. op.") at 4 (D.D.C. Dec. 12, 1990). Three days later, the Medical Staff President, also a defendant in this case, informed appellant that the MSEC's recommendation would be reviewed by the Hospital's Board of Directors, but that in the meantime appellant would be placed on summary suspension and must turn over care of his patients to other physicians immediately. An informal hearing before the MSEC on the suspension was scheduled for August 21, 1989.

    At the hearing, appellant was asked whether he would be willing to accept the MSEC's recommendation for close monitoring and supervision. Appellant indicated that he would, and on August 23 he signed an agreement outlining the terms of the monitoring and supervision program, at which time the summary suspension was rescinded. After further review and approval of the MSEC's actions by both the Board of Directors and the Board's Quality Assurance Committee, the Board of Directors convened for a final decision on appellant's case on October 19 and 23, 1989.

    At some time before those meetings, appellant submitted his application for reappointment to the Active Medical Staff for the 1990-1991 cycle. 2 The Hospital has to date taken no action on his reappointment.

    At its October meetings, the Board considered two possible actions regarding Dr. Johnson: retaining him on the Medical Staff subject to the 24-month monitoring and supervision program or terminating his Medical Staff membership and privileges altogether. 3 The Board decided upon the latter course, permitting Dr. Johnson, however, to continue practicing at the Hospital under the monitoring and supervision agreement while he pursued any hearing or appeal rights under the Hospital's bylaws. On October 24, 1989, the President of the Hospital informed appellant by letter of the Board's decision to terminate him and that he had forty-five days in which to request a formal hearing, after which the Board's decision would become final and his Medical Staff membership and privileges would automatically terminate. He also conveyed the Board's determination that

    [p]ending your decision concerning a formal hearing, and during any hearing proceedings, your Medical Staff membership and privileges may continue under the monitoring agreement you signed on August 23, 1989.

    Id. at 6.

    Appellant duly requested a hearing, a Hearing Officer was appointed, and hearings were conducted on February 15 and 16, 1990. On March 21, 1990, one day before hearings were scheduled to resume, appellant filed a breach of contract action in the Superior Court of the District of Columbia alleging that the Hearing Officer's decision to permit the Hospital to call an independent expert witness violated the Hospital's bylaws. The court denied appellant's claim for immediate injunctive relief and the hearings continued, as scheduled, on March 22, 1990.

    The final day of hearings was scheduled for April 5, 1990. On April 4, the Hearing Officer notified the parties that he would not proceed until appellant's Superior Court suit was resolved. Thereafter, on April 18, appellant served each member of the Board of Directors with a "post-hearing" brief requesting that the Board reconsider its decision to terminate his Medical Staff membership and privileges. The Board voted to wait until completion of the hearings and receipt of a report from the Hearing Officer before making any final decision regarding Dr. Johnson's status at the Hospital.

    On May 8, 1990, appellant's Superior Court suit was dismissed as unripe. The Hearing Officer nonetheless refused to proceed unless the parties stipulated that the proceedings were covered by the immunity

    Page 1272

    provisions of the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11111 (1988). The Hospital agreed to so stipulate, but appellant would not; the Hearing Officer resigned effective August 2, 1990.

    While the hearings were in recess, but before the Hearing Officer's formal resignation, appellant applied for reappointment to the Courtesy Staff of Columbia Hospital for Women Medical Center in Washington, D.C. In order to evaluate appellant's application, Columbia Hospital requested that Greater Southeast forward to it copies of the patient histories that had been the subject of Greater Southeast's investigation of Dr. Johnson. The record is not clear as to what happened following this request. Appellant alleges, however, that the Hospital did not promptly comply with this request, causing Columbia Hospital to temporarily suspend his privileges at that facility. The district court made no findings on this aspect of the case, but it does appear that Dr. Johnson eventually received reappointment to the Columbia Hospital Staff.

    On August 10, 1990, counsel for the Hospital wrote to appellant's counsel inquiring how appellant wished to proceed in light of the Hearing Officer's resignation. Appellees' counsel proposed that the matter be submitted to the Board on the hearing record developed as of that date. Appellant did not respond to this offer; instead, he filed this suit on August 17, 1990.

    Appellant alleges that the Hospital and named defendants 4 have conspired to boycott him from maintaining Medical Staff membership and privileges at Greater Southeast and to restrain trade and commerce in in-patient obstetrical services--all in violation of §§ 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1988), and the comparable provisions of the District of Columbia Code. 5 In furtherance of this conspiracy, appellant alleges, inter alia, 6 that appellees have caused the termination of his Medical Staff membership and privileges at Greater Southeast, precluded him from obtaining membership in the Johns Hopkins Medical Plan and United Health Services and interfered with his application for reappointment to the Medical Staff at Columbia Hospital for Women Medical Center.


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