Mulligan v. ALTA ANESTHESIA ASSOCIATES, A02A1992.

• Decision Date: 04 April 2003
• Docket Number: No. A02A1992.,A02A1992.
• Citation: 260 Ga. App. 727,580 S.E.2d 678
• Parties: MULLIGAN et al. v. ALTA ANESTHESIA ASSOCIATES OF GEORGIA, P.C. et al.
• Court: Georgia Court of Appeals

580 S.E.2d 678

260 Ga. App. 727

MULLIGAN et al. v. ALTA ANESTHESIA ASSOCIATES OF GEORGIA, P.C. et al.

No. A02A1992.

Court of Appeals of Georgia.

Reconsideration Denied April 4, 2003.

March 19, 2003.

Rogers & Hardin, Tony G. Powers, Atlanta, John C. Butters, Kevin Gough, Brunswick, for appellants.

Whelchel, Brown, Reddick & Bumgartner, John E. Bumgartner, Bradley J. Watkins, Gilbert, Harrell, Gilbert, Sumeford & Martin, Wallace E. Harrell, Brunswick, for appellees.

ADAMS, Judge.

This is the fifth appeal docketed in this Court¹ precipitated by the following events: In 1995, the Glynn-Brunswick Memorial Hospital Authority (Authority), which operated Southeast Georgia Regional Medical Center in Brunswick, became concerned about problems with the anesthesiology services provided by the hospital's anesthesiology department. At that time the anesthesiology department comprised nine independent anesthesiologists each holding privileges to practice at the hospital. The Authority decided that anesthesiology coverage at the hospital could best be provided by an organized group of anesthesiologists, and notified the anesthesiology department of its decision. Six of the anesthesiologists formed Alta Anesthesia Associates of Georgia, P.C. and procured a contract, which became effective around July 1996, to provide anesthesiology services to the hospital. At the Authority's insistence, the contract expressly allowed the three doctors who did not join Alta to continue to provide anesthesiology services at the hospital and expressly provided that they would be incorporated into the anesthesiology schedule "as requested by surgeons and others." However, new anesthesiologists would have to join Alta before they could practice at the hospital.

One of the three doctors who did not join Alta was Dr. Carol Mulligan, who had held privileges to provide anesthesiology services at the hospital since 1991. On September 29, 1999, Mulligan and her professional corporation Carol Mulligan, M.D., P.C. (referred to collectively as Mulligan) filed a multi-count complaint against Alta, the Authority, and Lynne Imhoff, M.D., asserting claims for conspiracy in restraint of trade, tortious interference with business relations, breach of duty to follow existing bylaws, defamation, and intentional infliction of emotional distress. The trial court granted Alta and Imhoff summary judgment, and Mulligan filed this appeal challenging the grant of summary judgment on her conspiracy to restrain trade and tortious interference claims. 1. On appeal of a grant of summary judgment, we determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and was entitled to judgment as a matter of law. OCGA § 9-11-56(c). "A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).

Mulligan argues, in essence, that summary judgment was improperly granted in her case because her claims and the evidence supporting her claims are similar or identical to those asserted by another independent anesthesiologist, Dr. Jacquelyn Gibbons, in Alta Anesthesia Assocs. of Ga. v. Gibbons, 245 Ga.App. 79, 537 S.E.2d 388 (2000), in which this Court upheld a jury award for the plaintiff.² Mulligan also argues that the trial court erred by refusing to find that her conspiracy to restrain trade claim is a separate and cognizable claim apart from her tortious interference claim. We agree with Mulligan that summary judgment was improperly granted, but disagree that a separate cause of action for restraint of trade exists under the facts of this case.

In both Gibbons and the case at hand, plaintiffs asserted that after Alta was awarded the contract to provide anesthesiology services to the hospital, it manipulated the operating room schedule and first call assignments³ so that the independent anesthesiologists were assigned fewer cases or were assigned fewer of the higher paying cases, and further that through intimidation and the refusal to assist the independent anesthesiologists, it sought to have the doctors and the staff at the hospital use and prefer the services of Alta and its members over those of the independent anesthesiologists. Id. at 81, 537 S.E.2d 388. And in both Gibbons and the case at hand, the plaintiffs asserted that these actions constituted, inter alia, a conspiracy to restrain trade. Id. at 82-83, 537 S.E.2d 388.

On appeal in Gibbons, Alta asserted that it was entitled to a directed verdict "because Georgia law does not recognize a tort for restraint of trade." Id. at 82-83(2), 537 S.E.2d 388. Without expressly addressing this issue, we upheld the denial of the motion for directed verdict, noting that the focus of our review is upon "substance and not merely nomenclature" and that a judgment which is right for any reason will be affirmed. Id. at 83(2), 537 S.E.2d 388. We then went on to find that the trial court had charged on what was "essentially the tort of interference with business relations," id. at 84(2), 537 S.E.2d 388, elaborating on the nature of the claim as follows:

Such a claim may be stated by showing a general malicious intention to harm the plaintiff's business, or to drive the plaintiff out of business. The principle is generally recognized that a person's business is property in the pursuit of which he is entitled to protection from tortious interferences by [another] person who in interfering therewith, is not acting in the exercise of some right to compete for business. Every individual has a natural right to pursue a lawful occupation and to conduct his business according to his own plans and policies, where he does not offend the law or unlawfully infringe upon the rights of others.

(Citation, punctuation and footnote omitted.) Id. at 84(2), 537 S.E.2d 388.

In this case, unlike the plaintiff in Gibbons, Mulligan did assert a separate cause of action for tortious interference with business relations, but urges that the elements of the two causes of action are different, and that we should consider the claims separately. Mulligan contends that to maintain her restraint of trade claim she must show: (i) Alta engaged in an unfair method of competition, (ii) with the intent to restrain trade (iii) which proximately caused her harm. To establish a cause of action for tortious interference with business relations, Mulligan must demonstrate that Alta "(i) acted improperly and without privilege, (ii) purposely and with malice with the intent to injure, (iii) induced a third party or parties not to enter into or continue a business relationship with [her], and (iv) for which [she] suffered some financial injury." Perimeter Realty v. GAPI, Inc., 243 Ga.App. 584, 592(5)(b), 533 S.E.2d 136 (2000). Thus, under Mulligan's theory of the case, she does not have to show that Alta induced third parties not to do business with her to maintain her restraint of trade claim.

We are unpersuaded that we should treat Mulligan's restraint of trade claim as a separate cause of action. Mulligan points to no cases, and we have found none, where our state appellate courts have recognized a cause of action for restraint of trade in which an agreement, conspiracy or combination was not involved.⁴ And...