Mercy-Peninsula Ambulance v. County of San Mateo

• Decision Date: 08 August 1984
• Docket Number: No. C-84-1184-WWS.,C-84-1184-WWS.
• Parties: MERCY-PENINSULA AMBULANCE, INC., Plaintiff, v. COUNTY OF SAN MATEO; Medevac, Inc.; 911 Emergency Services, a California corporation; Med 21 — Delaware Corp.; Mills Hospital; Peninsula Hospital and Sequoia Hospital, Defendants.
• Court: U.S. District Court — Northern District of California

592 F. Supp. 956

MERCY-PENINSULA AMBULANCE, INC., Plaintiff, v. COUNTY OF SAN MATEO; Medevac, Inc.; 911 Emergency Services, a California corporation; Med 21 — Delaware Corp.; Mills Hospital; Peninsula Hospital and Sequoia Hospital, Defendants.

No. C-84-1184-WWS.

United States District Court, N.D. California.

August 8, 1984.

Roderick G. Dorman, Barry P. Jablon, Jeffrey D. Masters, Cox, Castle & Nicholson, Los Angeles, Cal., for plaintiff.

Fredric C. Nelson, Wynne S. Carvill, Robert M. Halperin, John R. Foote, Thelen, Marrin, Johnson & Bridges, Michael Bradley, Murphy, Pearson, Bradley & Beattie, San Francisco, Cal., Barry C. Marsh, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Cal., William J. Meeske, Michael J. Shockro, Lathan & Watkins, Los Angeles, Cal., Russell B. Carpenter, Carpenter, Higgins & Simonds, Burlingame, Cal., Rochelle D. Alpert, Morrison & Foerster, John P. McGlynn, Daniel J. Meagher, Jr., McGlynn, McLorg & McDowell, San Francisco, Cal., Gerard Wagstaffe, Wagstaffe, Daba & Hulse, Redwood City, Cal., for defendants.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

This antitrust action concerns the provision by ambulance personnel of paramedic service, the highest level of pre-hospital emergency medical care, in the defendant County of San Mateo ("the County"). Defendants Medevac, Inc. ("Medevac") and 911 Emergency Services, Inc. ("911") provide primary emergency ambulance service for the County and defendant hospitals¹ through the County's public dispatch lines; plaintiff provides "back-up" service when the primary providers cannot respond to a call. The gravamen of plaintiff's complaint is that the County, in conspiracy with the other defendants, has refused to certify as paramedics any ambulance personnel other than that employed by the primary providers Medevac and 911. Plaintiff alleges that defendants' actions constitute a concerted refusal to deal in violation of § 1 of the Sherman Act and an exercise of monopoly power in violation of § 2; it seeks damages and injunctive relief.

Each of the defendants has moved to dismiss under Rule 12(b)(6). They contend that they are immune from antitrust liability under the "state action" doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), arguing that the actions challenged by plaintiff were taken by the County pursuant to an express state policy to displace competition with regulation of paramedic care. They also argue that they are immune under the Noerr-Pennington doctrine which shields from antitrust scrutiny attempts to influence government officials' decision-making. Finally, the County claims that it is protected by the Tenth Amendment from antitrust liability for the conduct alleged.

Plaintiff responds that defendants have failed to identify an express state policy to displace competition in the paramedic service market in the manner employed by the County. It also argues that Noerr-Pennington does not apply where government officials are alleged to have conspired with private defendants and that imposing liability on the County would not regulate the "state as state" in violation of the Tenth Amendment.

A. Statutory Background.

A complex web of statutory provisions governs emergency medical and paramedic services in California since 1980, the period in which plaintiff alleges the anticompetitive acts to have taken place.

The earliest act is the Wedworth-Townsend Paramedic Act ("WTPA"), Cal.Health & Saf.Code §§ 1480-1485, enacted in 1970, which authorized counties to "conduct a pilot program" for use of mobile intensive care paramedics to deliver pre-hospital emergency care, id. § 1480. The Act provided for county training and certification of paramedics, id. §§ 1481(a), 1481.3, as well as county establishment of recertification criteria, id. § 1484.2, and enumerated minimum training standards for paramedics, § 1482. It also authorized counties to "contract with a general acute care hospital which has the approval of the county health officer to participate in the pilot program," id. § 1482. Although the WTPA was originally to expire by its terms in 1979, id. § 1484, it was extended by amendment until 1982, Cal.Stats.1979, C. 555, p. 1764, § 1.

In 1980, the Emergency Medical Services and Emergency Medical Care Personnel Act ("EMS Act"), id. §§ 1797 et seq., was adopted to replace the repealed Emergency Medical Care Services Act, id. 1750 et seq. The EMS Act, which took effect in 1981, seeks to "provide the state with a state-wide system for emergency medical services by establishing within the Health and Welfare Agency the Emergency Medical Authority which is responsible for the coordination and integration of all state activities concerning emergency medical services," id. § 1797.1. That state Authority is empowered to, among other things, review the emergency requirements of local "EMS areas," id. § 1797.102, and to establish standards for paramedics (EMT-P's) and lower level emergency personnel (EMT-I's and EMT-II's), id. §§ 1797.80-84, 1797.170-172, 1797.176.

The Act also envisions local regulation. It authorizes counties to designate a local "EMS agency" which may "plan, implement and evaluate an emergency medical services system in accordance with the provisions of this part, consisting of an organized pattern of readiness and response services based on public and private agreements and operational procedures," id. § 1797.204. With regard to the certification of paramedical and other personnel in counties which create such systems, the Act provided until 1983:²

1797.206. The county is responsible for implementation of advanced life support systems and limited advanced life support systems and for the monitoring of training programs.

1797.208. The county shall be responsible for determining that the operation of training programs at the EMT-I, EMT-II, and EMT-P levels are in compliance with this part, and shall approve the training programs if they are found to be in compliance with this part. The training program at the California Highway Patrol Academy shall be exempt from the provisions of this section.

1797.210. The county health officer or county designated physician shall issue a certificate to an individual upon proof of satisfactory completion of an approved training program and passage of the examination for competence. The certificate shall be proof of the individual's initial competence to perform at the designated level. The county health officer or county designated physician shall recertify EMT-I's, EMT-II's, and EMT-P's through passage of an examination for competency at least every two years.

1797.212. The county may establish a schedule of fees for certification in an amount sufficient to cover the reasonable cost of administering the certification provisions of this part.

The Act also provides that:

No person or organization shall provide advanced life support or limited advanced life support unless that person or organization is an authorized part of the emergency medical services system of the local EMS agency or of a pilot program operated pursuant to the Wedworth-Townsend Paramedic Act.

Id. § 1797.178 (citation omitted).

Finally, § 1797.250 authorizes local EMS agencies to develop an emergency medical services plan which must be submitted for approval by the state Authority:

After July 1, 1982, a local EMS agency may implement a local plan developed pursuant to Section 1797.250 unless the authority determines such plan does not effectively meet the needs of residents and is not consistent with coordinating activities in the geographical area served.

Id. § 1797.105(b).

In 1982, the WTPA, parts of which had been incorporated in the EMS Act, see, e.g., §§ 1797.172, 1797.178, was amended for purposes of coordination with the EMS Act. "Paramedic" was redefined in § 1480 in accordance with the minimum standards for EMT-P's, and the EMS Act's provisions for paramedic training and certification maintenance were adopted, § 1484.2.

Although it is difficult to decipher the interrelationship of the two acts, the EMS Act apparently regulated paramedic certification by counties which had adopted an emergency medical services system, while the WTPA continued to regulate certification elsewhere; both acts employed virtually identical standards, and the WTPA was repealed in its entirety in 1984.

B. Factual Allegations.

On defendants' motion to dismiss, plaintiff's allegations are taken as true, Mark v. Groff, 521 F.2d 1376, 1377 (9th Cir.1975).

Since at least 1976, defendant County has received calls for emergency ambulance assistance through its public dispatch and telephone system and has contracted with private ambulance companies to respond to those calls. Alternatively, ambulance service may be arranged for directly between private companies and individual hospitals, physicians, or patients.

Some time before 1980, the County also began to conduct a "pilot program" for mobile intensive care paramedics under the WTPA. Pursuant to that program, the County established procedures to certify qualified ambulance personnel to perform paramedic services under the supervision of an "acute care hospital" within the meaning of Cal.Health & Saf.Code § 1480.

Following a competitive bidding process, the County contracted with defendant Medevac in 1976 to provide primary emergency ambulance service and with plaintiff to provide "back-up" service whenever Medevac could not respond to a call. In 1980, the County and Medevac negotiated a new agreement which continued Medevac's role as primary provider of emergency ambulance service and required that all Medevac personnel be county-certified paramedics as part of the WTPA program. In addition, the contract provided for the County to pay Medevac a set fee for the contract period and for Medevac to collect directly from private patients specified fees which would be shared in part with the County.

Plaintiff alleges...