Cohlmia v. Ardent Health Services, LLC, No. 05 CV 384 P.
| Decision Date | 09 August 2006 |
| Docket Number | No. 05 CV 384 P. |
| Parties | George S. COHLMIA, Jr., M.D., and Cardiovascular Surgical Specialists Corp., an Oklahoma corporation, Plaintiffs, v. ARDENT HEALTH SERVICES, LLC, a Delaware limited liability company; AHS Oklahoma Health System, Llp, an Oklahoma limited liability partnership; AHS Hillcrest Medical Center, Llc, a Delaware limited liability company; Hillcrest Healthcare System, an Oklahoma corporation d/b/a/ Hillcrest Healthcare System; Hillcrest Medical Center, an Oklahoma corporation; Oklahoma Heart Institute, Inc., d/b/a Oklahoma Heart Institute, an Oklahoma corporation; Oklahoma Heart, Inc., an Oklahoma corporation; St. John Medical Center, an Oklahoma corporation; CVT Surgery, Inc., an Oklahoma corporation; Fred Garfinkel, M.D.; Steven Landgarten, M.D.; Steve Dobbs; Ronald C. Elkins, M.D.; Marc S. Milstein, M.D.; Thomas D. Roberts, M.D.; James A. Johnson, M.D.; Wayne N. Leimbach, Jr., M.D.; Ellen H. Chen, M.D.; Paul W. Kempe, M.D.; William C. Burnett, M.D.; and Howard W. Allred, M.D., Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
Daniel Brent Graves, Michael L. Barkett, Graves & Barkett Pllc, Tulsa, OK, for Plaintiffs.
Donald Ralph Esposito, Jr., Womble Carlyle Sandridge & Rice Pllc, Raleigh, NC, Mark Joseph Horoschak, Womble Carlyle Sandridge & Rice Pllc, Charlotte, NC, Michael Burrage, Burrage Law Firm, Durant, OK, Darrell Wayne Downs, Michael Sean Burrage, Taylor Burrage Foster Mallett Downs & Ramsey, Claremore, OK, Jo Lynn Jeter, Joel L. Wohlgemuth, Norman Wohlgemuth Chandler & Dowdell, Jennifer Rae Annis, John Jay Carwile, Michael Pearce Atkinson, Atkinson Haskins Nellis Holeman Phipps Brittingham & Gladd, George Michael Lewis, Lesley Ford Richer, William Hayden Spitler, IV, Doerner Saunders Daniel & Anderson, Tulsa, OK, J Daniel Morgan, Gable & Gotwals, Christine Marie Cave, Murray E. Abowitz, Abowitz Timberlake & Dahnke Pc, Oklahoma City, OK, for Defendants.
Before the Court are Defendants' Motions to Dismiss for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt.# 61-64),1 Plaintiffs' combined Response in opposition (Dkt.# 68), and Defendants' combined Reply thereto (Dtk.# 71). At issue are Count I for Combination and Conspiracy in Restraint of Trade in Violation of Section I of the Sherman Act and Section IV of the Clayton Act, Count II for Violation of Section II of the Sherman Act and Section IV of the Clayton Act, Count III for Illegal Boycott, Count IV for Violation of the Oklahoma Antitrust Reform Act, Count V for Tortious Interference with Contract and Prospective Advantage, Count VI for Defamation, Count VII for Violation of 42 U.S.C. § 1981, and Count VIII for Intentional Infliction of Emotional Distress. For reasons stated herein, Counts II (and the corresponding state law claim under Count IV), VI and VII are hereby DISMISSED without prejudice as to all Defendants, and Count V is DIMISSED without prejudice as to Defendant Elkins only. Counts III and VIII are hereby DISMISSED with prejudice. Defendants' Motions are therefore GRANED IN PART and, as to Count I (and the corresponding state law claim under Count IV), DENIED IN PART.
Also before the Court are Plaintiffs' Motion to Lift Seal (Dkt.# 34), Defendants' joint Response in opposition (Dkt.# 54), and Plaintiffs' Reply thereto (Dkt.# 65), which were filed in response to the Court's Order of July 20, 2005 directing parties to seek a judicial determination regarding the peer review privilege and confidentiality. In so directing the parties, the Court hoped to prevent unwarranted and/or repetitive arguments over the application of the privilege during initial disclosures and discovery. Accordingly, Plaintiffs moved the Court to lift the seal on their Amended Complaint and to enter a finding that evidence related to any peer review process is not privileged or confidential in this case. Defendants initially requested that the Court postpone its ruling on the issue of privilege until after its ruling on the instant Motions, and now argue that a determination on the issue would still be premature. In this regard, however, the Court finds that, upon careful consideration of the briefs on this issue, as well as the briefs filed in conjunction with Defendants' Motions to Dismiss, there is indeed enough information upon which to base such determination. For reasons stated herein, Plaintiffs' Motion to Lift Seal is GRANED in its entirety.
Plaintiff George S. Cohlmia, Jr., M.D. is a licensed physician in the state of Oklahoma specializing in cardiovascular, thoracic, vascular and endovascular surgery. [Am. Compl. ¶¶1, 35.] Dr. Cohlmia practices in Tulsa and engages in intra and inter-state commerce. [Id. ¶ 1.] Dr. Cohlmia is the sole owner and shareholder of Plaintiff Cardiovascular Surgical Specialists, Inc., an Oklahoma corporation which provides cardiovascular, thoracic, vascular and endovascular surgical care in Tulsa and engages in intra and inter-state commerce. [Id. ¶ 2.] Plaintiffs have been engaged in the relevant line of commerce (i.e., provision of cardiology, cardiovascular, thoracic and vascular surgery and endovascular speciality procedures and related subsidiary medical treatments) in the relevant geographical market (i.e., Tulsa) since 1984. [Id. ¶¶30, 35, 40, 41, 45.] Plaintiffs further engage in interstate commerce by purchasing equipment, supplies, and pharmaceuticals from manufacturers outside the state of Oklahoma, and by accepting payment from out-of-state sources such as Medicare, Medicaid, and commercial private insurers. [Id. ¶ 43.]
Prior to the events giving rise to this lawsuit, Plaintiffs served a significant percentage of the cardiovascular, thoracic, vascular and endovascular surgery patients in the relevant market. [Id. ¶ 44.] Plaintiffs' patients come from both inside and outside Oklahoma. [Id. ¶ 42.] A significant portion of their patients are Native American. [Id. ¶ 37.] Dr. Cohlmia possesses the skill, expertise, and willingness to operate on high risk patients. [Id. ¶ 36.] Native American patients are often considered to be high risk, and therefore are not always well received by other cardiovascular surgeons and health care facilities. [Id. ¶ 38.] Dr. Cohlmia treated a substantial percentage of his patients at Defendant hospitals. [Id. ¶ 49.] The only way a surgeon, such as Dr. Cohlmia, may access facilities, such as Defendant hospitals, is by gaining credentials and privileges at each facility. [Id. ¶ 50.]
Because of Plaintiffs' relative market share, Defendants perceived Dr. Cohlmia as a significant economic competitor and a threat to certain of their actual and desired market share. [Id. ¶¶ 46, 58.] Further, Dr. Cohlmia was involved in the development of a specialty heart and vascular hospital, which facility Plaintiffs believe was also perceived as a threat by Defendants. [Id. ¶¶ 53, 61.] In or around the spring of 2002, after news of Dr. Cohlmia's plans for a specialty hospital had been divulged, Defendants, individually and in combinations, began to take actions interpreted by Plaintiffs as interfering with Plaintiffs' ability to practice medicine. [Id. ¶¶ 59, 62.] For example, Defendant OHI agreed to help Defendant HMC recruit and hire an employee cardiovascular surgeon, and to make surgical referrals only to the new employee surgeon, and to boycott Plaintiffs. [Id. ¶ 67.] After the new employee surgeon was hired, Dr. Cohlmia, in his role as HMC's Chief of Cardiothoracic Surgery, grew concerned about the surgeon's competence and was labeled by certain Defendants as a "whistle blower" for speaking out about his concern. [Id. ¶¶ 72-76.]
Around this time, Defendant HMC, together with Defendants Garfinkel, Kempe, CVT, OHI, Leimbach, Johnson, Dobbs, Landgarten, Roberts, Chen, and other non-party physicians affiliated with OHI and/or Defendant hospitals, began to tell other medical professionals and patients that Dr. Cohlmia was being stripped of his credentials and privileges, and to refuse to refer patients to Dr. Cohlmia or otherwise allow patients to see him, sign off or threaten to sign off of any cases in which Dr. Cohlmia was involved, and otherwise interfere with Plaintiffs' reputation and livelihood. [See id. ¶¶ 78-91.] When Dr. Cohlmia began to admit more patients to SJMC as a result, Defendants SJMC, Kempe, Allred, CVT, Burnett, and other non-party physicians began to complain about Dr. Cohlmia and his under or uninsured Native American patients, and to scrutinize his files for something to use against him, resulting in his being "summarily suspended" for "bizarre" and "profoundly deranged" medical judgment with regard to two surgeries he performed at SJMC. [See id. ¶¶ 92-111.]
Summary suspension is usually reserved for situations in which a physician's conduct requires immediate action to be taken to protect the life of any patient or to reduce the substantial likelihood of immediate injury or damage to the health of any person in the hospital, such as when the physician is under the influence of drugs or alcohol. [Id. ¶¶ 112-113.] Other measures, such as peer review, letter of admonition, or appearance before the Medical Executive Committee, are available to address perceived problems with a physician's standard of care [id. ¶ 114], but SJMC's chosen course of action was calculated to avoid the peer review process and related paper trail [id. ¶ 115]. Dr. Cohlmia requested a hearing regarding his summary suspension [id. ¶ 116]; however, the decision was affirmed by the non-physician hearing officer whom SJMC selected to preside [id. ¶ 118], even after testimony that would tend to establish that SJMC's summary suspension of Dr. Cohlmia was inappropriate and/or in bad faith .
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