Wicker v. Union County General Hosp., WC86-92-S-D.

• Decision Date: 09 November 1987
• Docket Number: No. WC86-92-S-D.,WC86-92-S-D.
• Citation: 673 F. Supp. 177
• Parties: Bettye WICKER, CRNA, Plaintiff, v. UNION COUNTY GENERAL HOSPITAL, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

673 F. Supp. 177

Bettye WICKER, CRNA, Plaintiff, v. UNION COUNTY GENERAL HOSPITAL, et al., Defendants.

No. WC86-92-S-D.

United States District Court, N.D. Mississippi, W.D.

November 9, 1987.

Susan M. Jenkins, Daniel S. Koch, Janet L. Pailet, Quinn, Racusin & Jenkins, Washington, D.C., Will R. Ford, Jr., New Albany, Miss., Gene A. Blumenreich, Fine & Ambrogne, Boston, Mass., for plaintiff.

Lester F. Sumners, Sumners, Carter, Trout & McMillin, P.A., New Albany, Miss., for defendants.

OPINION

SENTER, Chief Judge.

This cause comes before the court on motion for summary judgment by defendants. For the reasons set forth below, the court denies this motion as to the demand for injunctive relief under count 1 of the complaint. The court sustains the motion as to all other counts and demands.

FACTS

Plaintiff Bettye Wicker is a Certified Registered Nurse Anesthetist (CRNA) who has been engaged in the practice of nurse anesthesia at UCGH for over twenty years. (The term "Certified Registered Nurse Anesthetist" or "CRNA" refers to a registered nurse, duly licensed by the state, who is certified as a nurse anesthetist by the Council on Certification of the American Association of Nurse Anesthetists.)

Defendant Union County General Hospital (Hospital)¹ is a public hospital owned and operated by Union County, Mississippi. Defendants, the individual members of the Board of Trustees of Hospital, are appointed by the elected county supervisors of Union County, Mississippi.

Under Mississippi law, nurse anesthetists, physician anesthesiologists, and dental anesthetists may administer anesthesia. Nurse anesthetists compete with such other providers in the anesthesia service market. At UCGH, anesthesia is administered by both nurse anesthetists and dental anesthetists.

Plaintiff, Ms. Wicker, has provided anesthesia services at UCGH since 1965. For the first six years of her practice there, she was an employee of the hospital. Beginning in 1971, Ms. Wicker became an independent contractor and entered into various oral or written contracts with UCGH by the terms of which she agreed to provide anesthesia services at UCGH as requested by individual surgeons, obstetricians, and patients and to share anesthesia call and coverage with other anesthesia providers at UCGH. UCGH agreed to provide billing services for her.

Prior to January, 1980, third-party payors of health care services were not required to reimburse CRNAs directly, as now required under Mississippi law. Further, the federal Medicare program does not reimburse CRNAs directly, but will reimburse hospitals for the actual cost of anesthesia services provided by CRNAs.

Under Mississippi law, nurse anesthetists were not permitted to directly bill for their services until January of 1980. Therefore, one of the terms of Ms. Wicker's various contracts with UCGH was that the hospital would bill for her services. Under this arrangement, Ms. Wicker would submit a monthly statement of all anesthesia services rendered during that period. UCGH would then bill Ms. Wicker's patients and their third-party payors for the professional component of anesthesia services along with the hospital's own bills for the hospital component of anesthesia service. UCGH then remitted to Ms. Wicker sixty percent (60%) of the professional component charged by the hospital. Additionally, obstetrical and certain other anesthesia services provided by plaintiff to UCGH patients were reimbursed by UCGH in accordance with a fixed fee schedule.

Thurmond Beasley, D.D.S., a dental anesthetist at UCGH, also provides anesthesia services in competition with Ms. Wicker. Dr. Beasley is also an independent contractor with UCGH and utilizes a similar billing arrangement to that of Ms. Wicker. Ms. Wicker alleges that Dr. Beasley is not required to remit the same percentage of his billings to UCGH.

On or about August 18, 1985, Ms. Wicker was informed by the administration and Board of Trustees of UCGH that the hospital wished to reduce the amount of payment she was receiving for her services. The hospital administration provided her with a proposed price list and advised her that despite the reduction in payment to her represented by this list, it would continue to bill for her services at higher rates than those contained on the price list. In fact, the hospital administration would continue to bill at the previous price level. Ms. Wicker rejected the hospital's proposal. She informed the administration, and here contends, that federal Medicare regulations required that hospitals billing for the services of an independent contractor nurse anesthetist may bill only for the actual cost to the hospital for these services. She further informed the hospital and here contends that "percentage contracts" with providers of services other than physicians, under the terms of which the provider of services would receive less than 100 percent of the charges billed for his or her services, were prohibited under federal Medicare law and regulations.

By letter dated October 1, 1985, UCGH terminated its contract with Ms. Wicker effective January 1, 1986, and offered to negotiate a new contract. After receipt of this termination notice, Ms. Wicker entered into a contract with E.E. Bramlitt, M.D., Bruce Bullwinkel, M.D., and New Albany Surgical Group (NASG) to provide anesthesia services as an independent contractor for all of their surgical patients at UCGH except those who are recipients of Medicare. Under the terms of this contract, either Ms. Wicker or NASG would directly bill patients or their third-party payors for her services.

On November 27, 1985, Ms. Wicker informed the members of the medical staff of UCGH that beginning January 1, 1986, she would be working as an independent contractor with NASG and would also be available to provide anesthesia services to the patients of other surgeons and obstetricians at UCGH upon their request. On that same date, Ms. Wicker's attorney informed the board that she did not wish to renegotiate the contract, but would work as an independent contractor directly with physicians.

Since January 1, 1986, UCGH has submitted several proposed contracts to Ms. Wicker. Ms. Wicker has rejected all of these since each draft contains a provision which would require Ms. Wicker to remit to UCGH a portion of her anesthesia service billings or would allow UCGH to retain a percentage of such fees. UCGH has refused to consider any contract with Ms. Wicker which does not include a provision permitting UCGH to receive some share of Ms. Wicker's fees, despite the fact that UCGH itself legitimately bills for the hospital component of anesthesia which typically includes charges for equipment, drugs, and supplies utilized in providing anesthesia services.

In January, 1986, Ms. Wicker learned that, contrary to prior representations made to her by UCGH, Dr. Beasley is paid the full amount of the professional component with respect to his anesthesia services and is not required to remit any portion of his billings or fees to UCGH.

UCGH has since employed another CRNA, Philip Thompson, who functions as a hospital employee. Ms. Wicker has expressed her willingness to rotate with the other anesthesia providers in taking calls for emergency anesthesia services. However, she is unwilling to provide, entirely on her own, 24-hour-a-day, 7-day-a-week coverage for all emergency anesthesia services.

On February 27, 1986, UCGH filed an action for declaratory judgment in Union County Chancery Court. The complaint asked the court to declare:

a) Whether Hospital has the right to prohibit the private practice of anesthesia by C.R.N.A.'s.

b) Whether Bettye Wicker and other C.R.N.A.'s, otherwise qualified but not employees of Hospital, are entitled to staff privileges and the right to render anesthesia services at the request of patients or physicians.

c) Whether staff physicians, surgeons, and dentists are entitled to employ and bring into the hospital Wicker and other C.R.N.A.'s who are otherwise qualified but not employed by Hospital.

d) If the court should find that Wicker and other C.R.N.A.'s have the right to practice independently or that physicians may employ private duty C.R.N.A.'s, the court should declare:

i) Whether Hospital can charge the physician or patient for what Hospital has lost by the non-use of its own anesthesia personnel;

ii) Whether Hospital can require an independent C.R.N.A. to provide standby coverage;

iii) Whether Hospital can require a physician using an independent or private duty C.R.N.A. to indemnify Hospital against any losses, expenses, or damages in any way attributable to the C.R. N.A.

On July 1, 1986, Wicker filed a complaint against Hospital and its trustees (both individually and in their official capacities) with this court. The complaint contained six counts: Count 1 alleges that the acts of UCGH constitute an attempt to monopolize the market for anesthesia services under 15 U.S.C. § 2 and demands injunctive relief or a declaratory judgment against termination of privileges, monetary damages (including treble damages under 15 U.S.C. § 16), and costs and attorney's fees. Count 2 alleges that UCGH has threatened to deprive Wicker of a property or liberty interest under color of state law without due process and demands injunctive relief, costs, and attorney's fees under 42 U.S.C. § 1983. Count 3 alleges that UCGH has remitted only a portion of anesthesia charges billed to Medicare and other third party payors and demands a declaratory judgment that such practice violates the Medicare fraud provisions (42 U.S.C. §§ 1395nn, 1395xx) and seeks injunctive relief against continuation of that policy. Count 4 alleges that UCGH and its board of trustees constitute a trust and combine under Mississippi Code Annotated § 75-21-1 and that their acts constitute an attempt to monopolize under § 75-21-3 and demands injunctive relief, damages, plus costs and attorney's fees. Count 5 alleges...