Levine v. Central Florida Medical Affiliates, Inc.
| Citation | 72 F.3d 1538 |
| Decision Date | 23 January 1996 |
| Docket Number | No. 94-3145,94-3145 |
| Parties | , 1996-1 Trade Cases P 71,279 Scott D. LEVINE, M.D., Plaintiff-Appellant, v. CENTRAL FLORIDA MEDICAL AFFILIATES, INC.; Healthchoice, Inc.; Sand Lake Hospital; Orlando Regional Healthcare System, Inc. f/k/a Orlando Regional Medical Center, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
John C. Butters, Atlanta, GA, for appellant.
David L. Evans, Thomas R. Harbert, Mateer, Harbert & Bates, P.A., Orlando, FL, for Healthchoice.
Ronald M. Schirtzer, Christopher K. Kay, Foley & Lardner, Orlando, FL, for Central Florida Medical Affiliates.
Appeal from the United States District Court for the Middle District of Florida.
Before ANDERSON and CARNES, Circuit Judges, and OWENS *, Senior District Judge.
Dr. Scott Levine, the plaintiff, appeals from the district court's grant of summary judgment in favor of the defendants on his state and federal antitrust claims. The four defendants are Healthchoice, Inc., a preferred provider organization ("PPO"); Central Florida Medical Affiliates, Inc. ("CFMA"), a physicians' advocacy group organized to supply physician providers to the Healthchoice PPO; Sand Lake Hospital; and Orlando Regional Healthcare System, Inc. ("ORHS"), the hospital's parent corporation. The incidents giving rise to the lawsuit are Dr. Levine's unsuccessful attempt to gain provider membership in Healthchoice and CFMA, and the temporary suspension of his staff privileges at Sand Lake Hospital. Because we conclude that there is no genuine issue of material fact about Dr. Levine's failing to establish any anticompetitive effect resulting from being denied membership in Healthchoice and CFMA or from his hospital suspension, and that the defendants are accordingly entitled to judgment as a matter of law, we affirm the district court's grant of summary judgment in their favor.
Because the case has come to us on appeal of summary judgment, we construe the facts in the light most favorable to the nonmovant, in this case Dr. Levine. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1403 n. 1 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995). The following is a summary of the facts as viewed in the light most favorable to Dr. Levine.
Dr. Scott D. Levine is an internist. In 1989, a year after completing his residency in California, Dr. Levine moved to Orlando, Florida to begin private practice. Although Dr. Levine explored opportunities to join established medical practices as a salaried employee, 1 he ultimately decided to become a sole practitioner. He began his practice in the summer of 1989.
When Dr. Levine began his practice, he sought, and was granted, provisional staff privileges at the ORHS hospitals. 2 ORHS is a nonprofit organization that owns and operates five Orlando area hospitals: Orlando Regional Medical Center ("ORMC"); Arnold Palmer Hospital for Children and Women; Sand Lake Hospital; St. Cloud Hospital; and South Seminole Hospital (ORHS owns only half of it). Dr. Levine primarily exercised his staff privileges at Sand Lake Hospital because it is located across the street from his office. Around October of 1990, after Dr. Levine had successfully exercised his provisional staff privileges for more than a year, ORHS granted him full active staff privileges. During 1990 and 1991, Dr. Levine also applied for, and was granted, staff privileges at several other Orlando area hospitals: the Florida Hospital system, which operates five hospitals; Glenbeigh Hospital; Charter of Orlando South Hospital; and Health Central.
When Dr. Levine acquired provisional staff privileges at Sand Lake Hospital, he agreed to have his name put on the emergency room ("ER") call list. Each day doctors of various specialties would be "on call" in the ER, which means that if a patient came to the ER and needed to see, for example, an internist, the hospital would contact the internist whose name appeared on the call list for that day. Dr. Levine found that being on the ER call list provided an effective means of building his new practice, and so during his early years in Orlando, he asked to be placed on the list as often as possible. Many of the patients Dr. Levine treated in the ER would continue to see him as their internist after leaving the hospital. In addition, these patients would often refer Dr. Levine new patients. Dr. Levine's strategy proved lucrative; in 1990, his first full year of private practice, Dr. Levine's pre-tax net earnings were $553,176--more than twice the average earnings of Florida internists in private practice that year, according to studies conducted by the American Medical Association.
In addition to being on the ER call list, another method of building his practice that Dr. Levine explored was the possibility of becoming a physician provider of Healthchoice 3 and CFMA. 4 Healthchoice is a PPO, which is a form of managed health care coverage in which physicians agree to accept no more than a maximum allowable fee for services rendered to plan enrollees in exchange for a potentially higher volume of patients. CFMA is a physicians' advocacy group that was organized to supply the Healthchoice PPO with a panel of physician providers. Dr. Levine had heard that Healthchoice was one of the largest PPOs in the Orlando area, and he believed that Healthchoice patients accounted for approximately twenty percent of some member physicians' practices. Dr. Levine had also heard that Healthchoice physicians were, in his words, "very pleased with what they're getting as reimbursement."
Dr. Levine sought physician provider membership with Healthchoice several times between 1989 and 1990, but Healthchoice denied his request for membership each time, explaining that it did not need any more internists in his geographical area. Believing (incorrectly) that in order to be a member of Healthchoice, one had to be a member of CFMA, Dr. Levine also inquired about membership in CFMA. However, Dr. Levine's telephone call to CFMA was answered by a Healthchoice employee, and Dr. Levine was again told that it did not need any more internists in his area.
During his first few years of practice, Dr. Levine pursued provider memberships in three other Orlando area PPOs--Health Advantage, Alta, and Aetna. He joined the Health Advantage PPO because it was part of the group health coverage he had purchased for himself and his office staff. When his own health coverage administrators switched to the Alta PPO, Dr. Levine then joined Alta as well. Dr. Levine also applied to become a physician provider of Aetna at the request of a patient, but Aetna denied his application for the same reason that Healthchoice had--Aetna already had enough internists in Dr. Levine's area. Although Dr. Levine received numerous solicitations from other area PPOs inviting him to become a physician provider, he turned down each of those offers.
In January of 1991, Dr. Levine's practice was so busy that he placed an advertisement in a medical journal to hire a physician as a salaried employee. However, because of events that transpired at Sand Lake Hospital that same month, Dr. Levine decided not to hire another physician for his practice.
In January of 1991, Cathy Canniff-Gilliam, the Executive Director of Sand Lake Hospital, removed Dr. Levine from the ER call list. A few days later, the executive committee of Sand Lake Hospital voted to suspend Dr. Levine's remaining staff privileges pending investigation of various patient care concerns. 5 The executive committee reported these concerns to the ORHS credentials committee, which then assembled an investigative committee to review the incidents giving rise to those concerns. After interviewing Dr. Levine and reviewing his patients' charts, the investigative committee reported its findings to the credentials committee. The credentials committee reviewed the report and recommended to the Sand Lake Hospital executive committee that it place Dr. Levine on probation for six months and that it proctor his performance of certain procedures several times each. The executive committee decided to increase the probationary period to one year, but other than that, it adopted the credentials committee's recommendations. Dr. Levine appealed the executive committee's decision, and in June of 1991, ORHS appointed a hearing panel to review the executive committee's decision. The panel affirmed the executive committee's decision to impose probationary conditions upon Dr. Levine.
Subject to his new probationary status, Dr. Levine regained admitting privileges in May of 1991, and ER call privileges in the fall of 1991, although he chose to wait until mid-December to resume being on ER call. Dr. Levine still has not met the procedure proctoring requirements necessary to regain full staff privileges, because he has chosen to admit his patients to Florida Hospital, which is the largest hospital system in Orlando, and as a result he has not performed the procedures that were to be proctored at Sand Lake Hospital.
During the time that his staff privileges were suspended at Sand Lake Hospital, 6 Dr. Levine maintained staff privileges at Glenbeigh Hospital, Charter Hospital, Health Central Hospital, and Florida Hospital (which includes five campuses). However, he has chosen not to exercise his staff privileges at Glenbeigh and Charter, purportedly due to the time he has spent pursuing this lawsuit.
The suspension of Dr. Levine's staff privileges began in the third week of January in 1991. Notwithstanding his suspension, in 1991 Dr. Levine earned $724,722, which is $171,546 (or thirty-one percent) more than he had earned the previous year when his Sand Lake Hospital staff privileges were not suspended.
In March...
To continue reading
Request your trial
-
Lockheed Martin Corp. v. Boeing Co.
...by Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1555-56 (11th Cir.1996). Lockheed alleges that Boeing, Erskine, Satchell, and Branch, "acting in concert and on behalf of Boeing," i......
-
Pierson v. Orlando Regional Healthcare Systems
...Broad. Sys. of Fla., Inc. v. Clear Channel Comm'ns, Inc., 376 F.3d 1065, 1071 (11th Cir.2004) (quoting Levine v. Cent. Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1551 (11th Cir.1996)) (footnote omitted). "In alleging `the anticompetitive effect of the defendant's conduct,' an antitrust plain......
-
City of Tuscaloosa v. Harcros Chemicals, Inc.
...of a defendant firm (or firms) with alternative sources for the defendant's product or services." Levine v. Central Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1552 (11th Cir.), cert. denied, 519 U.S. 820, 117 S.Ct. 75, 136 L.Ed.2d 34 (1996) (quoting IIA Phillip E. Areeda et al., Antitrust La......
-
Continental Airlines, Inc. v. United Air Lines
...when the conduct involved always or almost always tend[s] to restrict competition and decrease output." Levine v. Central Fla. Med. Affiliates, Inc., 72 F.3d 1538, 1549 (11th Cir.1996) (citations omitted). Conversely, therefore, where "the economic impact of certain practices is not immedia......
-
Missouri. Practice Text
...Therapists, Inc., 980 S.W.2d 130, 134 (Mo. Ct. App. 1998). 37. Id. 38. Id. 39. Id. at 133 (citing Levine v. Cen. Fl. Med. Affiliates, 72 F.3d 1538 (11th Cir. 1996)). Missouri 28-7 5. Resale Price Maintenance 5.a. Generally No reported opinions under the Missouri Antitrust Law analyze a resa......
-
Basic Antitrust Concepts and Principles
...to control prices or exclude competition only makes sense with reference to a particular market”); Levine v. Cent. Fla. Med. Affiliates, 72 F.3d 1538, 1356 (11th Cir. 1996); M & M Med. Supplies & Serv. v. Pleasant Hosp., 981 F.2d 160, 164 (4th Cir. 1992). 13. See, e.g., United States v. Mar......
-
Section 1 of The Sherman Act
...threshold matter, defendant’s substantial market power in a relevant market. See, e.g. , Levine v. Central Florida Med. Affiliates, Inc., 72 F.3d 1538, 1551 (11th Cir. 1996); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1995); SCFC ILC, Inc. v. Visa U.S.A.,......
-
Section 2 of The Sherman Act
...F.3d 1145, 1158 (9th Cir. 2003); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1028 (10th Cir. 2002); Levine v. Cent. Fla. Med. Affiliates, 72 F.3d 1538, 1556 (11th Cir. 1996); Salco Corp. v. Gen’l Motors Corp., 517 F.2d 567, 576 (10th Cir. 1975). The Fifth and Eleventh Circuits have incorpo......