Todorov v. DCH Healthcare Authority

• Decision Date: 29 January 1991
• Docket Number: No. 89-7569,89-7569
• Parties: 1991-1 Trade Cases 69,317 Alexandre B. TODOROV, M.D., individually and Neurology Clinic P.C., an Alabama Professional Corporation, Plaintiffs-Appellants, v. DCH HEALTHCARE AUTHORITY; The Radiology Clinic; William A. Askew; William A. Askew, M.D., P.C.; William A. Bright; and John G. Kahler, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1438

921 F.2d 1438 1991-1 Trade Cases 69,317 Alexandre B. TODOROV, M.D., individually and Neurology
Clinic P.C., an Alabama Professional Corporation,
Plaintiffs-Appellants,
v.
DCH HEALTHCARE AUTHORITY; The Radiology Clinic; William A.
Askew; William A. Askew, M.D., P.C.; William A.
Bright; and John G. Kahler, Defendants-Appellees. No. 89-7569. United States Court of Appeals,
Eleventh Circuit. Jan. 29, 1991.

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J. Paul Whitehurst, Tuscaloosa, Ala., for plaintiffs-appellants.

Michael S. Burroughs, Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, Ala., for Radiology Clinic, Wm. A. Bright, John G. Kahler, Wm. A. Askew and Wm. A. Askew, M.D., PC.

William J. Donald, Donald, Randall, Donald & Hamner, William J. Donald, III, Tuscaloosa, Ala., for DCH Healthcare Authority.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and ESCHBACH ^*, Senior Circuit Judge.

TJOFLAT, Chief Judge:

This is an appeal from a grant of summary judgment. Two questions are presented: first, whether a hospital and the radiologists on its medical staff, for the purpose of preventing competition for the provision of radiological services at the hospital, denied a neurologist the privilege to perform a procedure in the hospital's radiology department in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1-2 (1988); and, second, whether, in refusing to grant the neurologist this privilege, the hospital denied him due process of law. We find no antitrust violations or denial of due process, and accordingly affirm.

I.

A.

DCH Regional Medical Center (DCH) is a general hospital in Tuscaloosa, Alabama; it is the largest hospital in the area. Dr. Alexandre Todorov is a member of DCH's medical staff, having been granted privileges to practice neurology. ¹ Soon after DCH granted him these privileges, Dr. Todorov applied for the privilege to perform a procedure in the hospital's radiology department: the administration and interpretation of CT scans of the head.

A CT scan is a diagnostic procedure used to produce a series of cross-section images of internal body parts. ² The key component of a CT scan machine is a computer that is able to manipulate data received from a rotating x-ray beam, reproduce an image onto a video display, and print the image onto film. DCH maintains the equipment for administering CT scans in its radiology department.

The decision to have a CT scan performed is made primarily by the patient's treating physician. The treating physician refers his patient to the radiology department where a radiology technician, who is an employee of the hospital, administers the procedure under the direction and supervision of a radiologist. Before a patient receives a CT scan at DCH, the radiologist overseeing the administration of the scan must make several decisions concerning the procedure. These decisions are made after consultation with the referring physician ³

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and the patient, and a review of the patient's medical records.

The radiologist must decide how large the x-ray sections (or "slices") will be, whether the sections will be overlapped, how many sections to scan, and whether to use contrast. Contrast is a liquid that is injected into the area to be scanned; CT scans performed with contrast are more sensitive, creating more detailed images. ⁴ In addition, the radiologist must decide how to position the patient for the CT scan; for CT scans of the head, the patient's head is angled in different manners to capture different parts of the brain.

The radiologists at DCH have developed several standardized approaches to administering CT scans known as "protocols"; these are directions that inform the radiology technicians how to position the patient, how many sections to scan, how large the sections should be, and whether to use contrast. The radiologists generally recommend one of their established protocols for a CT scan procedure instead of writing extensive instructions to the technician.

After the scan is administered, the radiologist examines the film produced to determine whether additional scans will be needed to capture more information. ⁵ Once the radiologist is satisfied that the film is adequate for its diagnostic purpose, he interprets the film for the patient's treating physician.

The radiologist also makes a report for the hospital; DCH is required by the Alabama State Board of Health to maintain complete and accurate medical records for every patient at the hospital. Ala.Admin.Code r. 420-5-7.07(3) (1988) (Rules of Alabama State Board of Health). ⁶ The radiologist's report describes the CT scan that was administered and includes the radiologist's interpretation of the CT scan film--the "official" interpretation.

The radiologist charges his patient one fee for his role in administering the CT scan and making the official interpretation; if the patient is insured, the radiologist usually collects his fee from the patient's insurance company. The radiologist's charge is separate from the hospital's charge.

As a practicing neurologist, Dr. Todorov frequently relies on CT scans of the head to diagnose his patients' ailments; he refers many of his patients to DCH for the procedure. After a patient's head has been scanned and the film has been produced and officially interpreted, Todorov usually examines the film himself. He has difficulty, however, collecting a fee from his patients' insurance companies for the examination; most insurance companies will pay but one fee for a CT scan interpretation and that fee goes to the radiologist who makes the official interpretation. Thus, in practice, Todorov bills his patients only for his neurological services. If he were privileged to administer and officially interpret CT scans in DCH's radiology department, though, he might be able to collect the fees that otherwise would go to the radiologists. To solve his problem, Dr. Todorov applied for such privileges at DCH. DCH, however, denied his application. This denial is the subject of the dispute in this case.

B.

According to the bylaws of DCH's medical staff (as promulgated by the hospital's

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board of directors), when a physician seeks privileges, including additional privileges, at DCH, he fills out an application and submits it to the hospital's administrator. The administrator, in turn, refers the application to the credentials committee, which is composed of members of the hospital's medical staff. The credentials committee then asks the chairman of the hospital's department in which the applicant wishes to practice medicine for a recommendation. The credentials committee also contacts the applicant's references, if any, for their views on the applicant's suitability for the privileges in question.

After considering the opinions of these references and the department chairman, the credentials committee makes a recommendation and submits it to the hospital's administrator and to the executive committee of the medical staff. If both committees recommend that the requested privileges be granted, the administrator forwards their recommendations to the hospital's board of directors. If either committee recommends that the requested privileges be denied, the administrator notifies the applicant and the applicant can appeal to the Hearing Panel, which is composed of members of the medical staff, and request a hearing. At the hearing, the applicant may present the testimony of witnesses and exhibits. The Hearing Panel, after considering all of the evidence in the case, then recommends that the requested privileges be granted or denied and forwards its decision to the credentials committee for further consideration by that committee.

The credentials committee, in turn, reconsiders the application and issues a new recommendation, which it sends, as before, to the hospital's administrator and the medical staff's executive committee. If both committees recommend that privileges be granted, the administrator forwards their recommendations to the hospital's board of directors. If, once again, either committee recommends that privileges be denied, the administrator notifies the applicant and the applicant can appeal to the Appellate Review Panel, which is composed of "reputable persons" selected by the chairman of the hospital's board of directors. To support his appeal, the applicant may submit a written statement and, at the panel's discretion, present additional evidence on his suitability for the requested privileges. The panel then decides whether to recommend that such privileges be granted and forwards its decision to the board of directors. The board may "affirm, modify or reverse the recommendation of the [Appellate] Review Panel or, in its discretion, refer the matter for further review and recommendation." ⁷

C.

In this case, Dr. Todorov filed the proper application and the hospital administrator referred his application to the credentials committee, pursuant to the medical staff bylaws. This committee sought recommendations from the two physicians Dr. Todorov had named as references. Both are radiologists who practice at DCH: Dr. John G. Kahler, a member of the credentials committee and one of the appellees, and Dr. Ronald Phelps. In a letter accompanying his application, Dr. Todorov stated that these physicians would attest to his competence to read CT scans of the head. They did not, however, recommend Dr. Todorov for privileges; instead, they stated that they had not worked with him in interpreting CT scans and they questioned his ability to administer CT scans. The credentials committee also sought the advice of the chairman of DCH's radiology department, Dr. William A. Bright, also an appellee. Bright recommended that Dr. Todorov's application for additional privileges be denied. Given these responses--from Dr. Todorov's references and the department chairman--the...