Patrick v. Burget
| Decision Date | 30 September 1986 |
| Docket Number | 85-4071,Nos. 85-3759,s. 85-3759 |
| Citation | 800 F.2d 1498 |
| Parties | 1986-2 Trade Cases 67,299 Timothy A. PATRICK, M.D., Plaintiff-Appellee, v. William M. BURGET, M.D., Jorma M. Leinassar, M.D., R.G. Kettlekamp, M.D., Patrick Meyer, M.D., Gary Boelling, M.D., Robert D. Neikes, M.D., Franklin D. Russell, M.D., Leigh C. Dolin, M.D., Richard C. Harris, M.D., Daniel M. Rappaport, M.D., and Tzu Sung Chiang, M.D. doing business as Astoria Clinic, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Don H. Marmaduke, Barbee B. Lyon, Tonkon, Torp, Galen, Marmaduke & Booth, Portland, Or., John A. Reuling, Jr., Asst. Atty. Gen., Salem, Or., for plaintiff-appellee.
Thomas M. Triplett, Schwabe, Williamson, Wyatt, Moore & Roberts, Rick T. Haselton, Lindsay, Hart, Neil & Weigler, Portland, Or., for defendants-appellants.
Herbert H. Anderson, Theodore C. Falk, Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland, Or., for amicus curiae Oregon Ass'n of Hospitals.
Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., John A. Reuling, Jr., Asst. Atty. Gen., Salem, Or., for amicus curiae State of Or.
Douglas R. Carlson, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for amicus curiae Joint Commission on Accreditation of Hospitals, The American Medical Ass'n and The Oregon Medical Ass'n.
Appeal from the United States District Court for the District of Oregon.
Before FLETCHER, ALARCON and WIGGINS, Circuit Judges.
Appellants, partners in the Astoria Clinic, a medical clinic, appeal from a jury verdict in favor of Dr. Timothy Patrick, a surgeon in Astoria, for violations of Sherman Act sections 1 and 2 and for interference with prospective economic advantage under Oregon law. Because the conduct at the heart of the antitrust claims is exempt from liability under the state action doctrine, we reverse the judgment on the Sherman Act claims. Because the trial court failed to instruct the jury properly as to applicable statutory immunities, we reverse the judgment on the state law claims as well. We remand to the district court for determination of whether Patrick has antitrust claims that survive and for a new trial on the state law claim.
Astoria is a city of 10,000 people located in the northwest corner of Oregon. The only hospital in Astoria is Columbia Memorial. Columbia Memorial is a secondary hospital capable of handling some, but not all, forms of complex surgery. 2 The nearest hospital, Ocean Beach Hospital in Ilwaco, Washington, is a primary care hospital. During the relevant time frame, a majority of the Columbia Memorial medical staff were employees or partners of the Astoria Clinic.
Appellee Timothy Patrick is trained in general and vascular (blood vessel) surgery. In 1972, he joined the Astoria Clinic. After his initial one-year contract expired, he was asked to become a partner. Because he felt he had not been paid in proportion to the income he had produced for the Clinic, he chose to open an independent practice in Astoria. James Weber is a general surgeon who came to Astoria as an employee of Patrick in 1979. Patrick fired him in 1981 and Weber, in turn, set up an independent practice in Astoria.
Appellants William Burget, Jorma Leinasser, Richard Kettlekamp, Patrick Meyer, Gary Boelling, Robert Niekes, Franklin Russell, Leigh Dolin, Richard Harris and Daniel Rappaport were all partners in the Astoria Clinic when this suit was filed in 1981. Appellant Tzu Sung Chiang was added to the suit when he became a partner in 1982. 3
From the outset the doctors in the Clinic reacted negatively to Patrick's establishment of an independent practice. Patrick received virtually no surgical referrals from the Clinic. During a period when there was no general surgeon at the Clinic, patients were referred to hospitals 50 or more miles away for surgery. If Patrick (or Weber, when he was associated with Patrick) treated a "Clinic patient," the Clinic doctors would react angrily. The record contains several examples of confrontations resulting from the perceived theft of patients. Some of these took place in front of the patients themselves. The Clinic doctors also were not interested in helping Patrick with his own patients. Clinic surgeons consistently refused to enter into cross-coverage agreements with Patrick that would provide care for each other's patients if one of them needed to be out of town. Clinic doctors also were reluctant to give consultations. At the same time, the Clinic doctors repeatedly criticized Patrick for failure to get outside consultations and adequate back-up coverage.
The pattern of treatment of emergency room patients suggested that the Clinic doctors were attempting to make Patrick's patients their own and to prevent new ones from seeing him. Witnesses testified that they had come to the emergency room, asked for Dr. Patrick, and were told he was not available. Later, they discovered that Patrick was available and that no attempt had been made to contact him. Emergency room patients without a regular doctor tended to be treated by Astoria Clinic doctors rather than Patrick or Weber. During the period when the Clinic had no general surgeon, surgical emergencies were often sent to out of town hospitals rather than to Patrick.
The Clinic doctors explained that their reluctance to deal with Patrick was due to his contentiousness and lack of skill. However, there was uncontroverted testimony that Patrick never had any trouble getting along with the doctors at Ocean Beach and that he had been offered a partnership in the Astoria Clinic. There also was a great deal of testimony that Patrick was quite a good surgeon.
In the fall of 1979, after Weber had joined Patrick, the difficult relations between Patrick and the Clinic doctors erupted into more serious confrontations. The Clinic doctors attacked Weber in various ways soon after his arrival, and they increased their hostility toward Patrick. However, as soon as Weber left Patrick's employ, he was invited to join the Clinic.
An incident that triggered disciplinary action against Patrick occurred shortly after Weber's arrival. Patrick operated on a Mr. Willie to repair injuries suffered in an accident. Patrick almost immediately left town for the weekend. He left Weber in charge, even though Weber was scheduled to leave for Chicago Sunday morning. Patrick told Weber to check in on Willie early Sunday and, if he looked fine, to ask Dr. Linehan, a general practitioner, to cover until Patrick's anticipated return Sunday afternoon. Weber checked on Willie at 5:00 a.m., and, finding him stable, left for Chicago.
Before Patrick returned, Willie's condition worsened. The nurses called Dr. Linehan, who did not feel competent to handle the problems that had arisen. Without calling Patrick, who was only 90 minutes away by car, Linehan asked Dr. Boelling for help. Boelling refused, saying that he had bailed Patrick out enough. The hospital chief of staff then assigned Dr. Harris, a Clinic surgeon, to the case. Patrick would have returned immediately had he been called.
Boelling wrote a letter complaining about Weber's handling of the case. The hospital staff executive committee decided to refer the Willie matter to the Oregon Board of Medical Examiners (BOME) along with charts from 14 other cases ostensibly handled by Patrick. At the time the executive committee sent the charts, the three-member investigative committee of the BOME was chaired by Dr. Russell of the Astoria Clinic. Drs. Boelling and Harris testified at the request of the investigative committee.
When Patrick and Weber met with the investigative committee, they were assured that the Willie case was the only case of Patrick's under review. Russell told them he would not participate in discussion of the case because of a "conflict" between them and his "group." However, the chairman of the BOME, Dr. Tanaka, was never informed of the conflict of interest, and Russell proceeded to brief the whole Board on Patrick's cases. Patrick and Weber then spoke with the full Board; again, only the Willie case was discussed.
The BOME voted to issue a reprimand letter. Russell was asked to draft it. The Board issued Russell's draft, with some changes made by the BOME administrator. The letter stated that it was based on the evaluation of fifteen charts; it criticized Patrick's handling of the Willie case, and noted that Patrick was careless in his medical practices generally. After receiving the letter, Patrick wrote to the BOME requesting a review of the proceedings. Over Russell's objection, the BOME sent Patrick a list of the 14 other charts that had been reviewed. Patrick had not been the treating doctor in some of the cases. He again wrote to the BOME, threatening legal action unless a new hearing was granted or the letter withdrawn. Again over Russell's objection, Tanaka agreed to meet with Patrick.
At the meeting, Patrick acknowledged that the BOME's criticism of the Willie matter was justified. After discussion of the other charts, Tanaka agreed the letter overstated matters. However, the BOME did not retract or amend the letter after Russell indicated that he knew of other cases of Patrick's that would justify the criticism. After Patrick filed a petition for judicial review, the BOME retracted the letter entirely.
In the peer review proceedings within the hospital, Patrick's cases were reviewed by Clinic doctors, were discussed more often and criticized more thoroughly than those of other surgeons. For a period of several months, while Dr. Harris was Chief of Surgery, Patrick was given no cases of other doctors to review at all. He threatened to withdraw from the peer review process completely unless it was administered fairly. A rotating system of review was established and, subsequently, there were fewer problems. However, Patrick put forth numerous examples at trial...
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