Wolf v. Jane Phillips Episcopal-Memorial Medical Center, EPISCOPAL-MEMORIAL

• Citation: 513 F.2d 684
• Decision Date: 07 April 1975
• Docket Number: EPISCOPAL-MEMORIAL,No. 74-1496,C-380,74-1496
• Parties: 1975-1 Trade Cases 60,251 Rudolph J. WOLF, Plaintiff-Appellant, v. JANE PHILLIPSMEDICAL CENTER et al., Defendants-Appellees. (73-).
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 684

513 F.2d 684

1975-1 Trade Cases 60,251

Rudolph J. WOLF, Plaintiff-Appellant, v. JANE PHILLIPS EPISCOPAL-MEMORIAL MEDICAL CENTER et al.,

Defendants-Appellees.

No. 74-1496 (73-C-380).

United States Court of Appeals, Tenth Circuit.

April 7, 1975.

Gerald E. Kamins, Tulsa, Okl., for plaintiff-appellant.

John R. Richards, Grigg & Richards, Alfred B. Knight, Knight, Wilburn & Wagner, Joseph A. Sharp, Best, Sharp, Thomas & Glass, and Dan A. Rogers, Rogers, Rogers & Jones, Tulsa, Okl., for defendants-appellees.

Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.

LEWIS, Chief Judge.

The sole question presented here is whether the plaintiff's complaint stated facts sufficient to constitute a claim for relief under section 1 of the Sherman Act, 15 U.S.C. § 1. The United States District Court for the Northern District of Oklahoma alternatively concluded that the acts complained of by the plaintiff did not affect the interstate commerce of a business engaged in interstate commerce and, citing Page v. Work, 9 Cir., 290 F.2d 323, cert. denied, 368 U.S. 875, 82 S.Ct. 121, 7 L.Ed.2d 76, granted the defendants' motion to dismiss for lack of subject matter jurisdiction. On the plaintiff's appeal from that ruling, we must accept as true the facts contained in the complaint. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 15 L.Ed.2d 247; United States v. New Wrinkle, Inc., 342 U.S. 371, 373, 376, 72 S.Ct. 350, 96 L.Ed. 417.

I.

The plaintiff is an osteopathic physician and surgeon licensed by the state of Oklahoma and certified in General Practice by the American Osteopathic Board of General Practitioners. He practices in Bartlesville, Oklahoma. There are two hospitals in Bartlesville, the Memorial Hospital and the Jane Phillips Episcopal Hospital. Each is controlled and managed by the Jane Phillips Episcopal-Memorial Medical Center. Before a physician may admit patients to either hospital, he must have been accepted as a member of the medical staff of the hospitals. The requirements for such membership are set by the Medical Center's bylaws, which generally govern the medical staff and which reflect the medical staff's recommendations that have been approved by the Medical Center's board of trustees. Since 1966 the plaintiff has made repeated requests for membership on the medical staff, but none of his requests has been successful. Neither has any other osteopathic physician been accepted as a member; the medical staff is composed solely of medical doctors.

In his complaint the plaintifff alleged that the chairman and members of the board of trustees of the Medical Center and the members of the medical staff of the hospitals "have agreed, reached some understanding or conspired among themselves" to restrict the membership of the medical staff to medical doctors, thereby excluding the plaintiff and preventing his treating patients in either of the Bartlesville hospitals. The plaintiff claimed that this "concerted exclusionary action or group boycott" was illegal per se under section 1 of the Sherman Act. He claimed also that the medical practice of both the defendants and himself "involves directly (or) affects interstate commerce" and that the defendants' conspiracy to exclude the plaintiff from their medical staff "seriously and unreasonably restrains competition" in such commerce. More particularly, he claimed that the defendants' conduct affected his practice in the following ways: potential patients failed to seek the plaintiff's services because he was unable to provide local hospital care if needed; plaintiff's patients who required hospitalization could only be treated at a hospital that was 35 miles away; and industrial-accident patients were not referred to the plaintiff because he was unable to provide local hospital care. Finally, plaintiff claimed that he had suffered a loss of gross income of $1 million, that he is entitled to treble damages, and that the defendants should be enjoined from engaging further in their conspiracy to exclude the plaintiff from their medical staff.

II.

Plaintiff first contends on appeal that the practice of medicine is "trade or commerce" within the Sherman Act and that the medical profession cannot therefore be exempted from the application of the antitrust laws as a "learned profession." Although the district court, in its memorandum opinion, stated that "doctors are exempt from the federal antitrust laws since they are members of a 'learned profession,' " the court also indicated that the plaintiff's complaint was jurisdictionally deficient on another, independently sufficient ground namely, that the facts alleged would not support the proposition that the defendants' conduct substantially affected interstate commerce. Thus, we need not decide whether the practice of medicine generally is exempt from the antitrust laws as a "learned profession." Whatever be the proper answer to that question, we believe that the district court's alternative rationale is reason enough for the dismissal of plaintiff's action, and, accordingly, we affirm the judgment of the district court.

The effect of the alleged conspiracy is clearly to restrain the plaintiff from practicing medicine and furnishing medical services as a member of the defendants' medical staff. The question arises, then, whether the defendants' conduct has substantially affected interstate commerce. If so, the district court had jurisdiction. Burke v. Ford, 389 U.S. 320, 321, 88 S.Ct. 443, 19 L.Ed.2d 554, citing United States v. Employing Plasterers Ass'n, 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328. If not, the district court had no jurisdiction. United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279; United States v. Employing Plasterers Ass'n, supra. The same question has arisen in other cases in similar contexts. A review of those cases indicates that the question here must be answered negatively.

In United States v. Oregon State Medical Society, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978 the Court reviewed a lower court ruling dismissing an action brought to enjoin the Oregon State Medical Society, eight county medical societies, an Oregon corporation engaged in the sale of prepaid medical care, and eight doctors from monopolizing the business of furnishing prepaid medical care on a contract basis. The lower court had found that the defendants' conduct did not constitute interstate commerce under either the Sherman Act or the Constitution's commerce clause. The Supreme Court affirmed, conceding that across-state-line activities of the doctors' associations had been shown but noting that the necessary nexus between the restraint itself the allocation of territories within the state by the doctor-sponsored plans and those activities had not been shown. 343 U.S. at 338, 72 S.Ct. 690. Thus, despite the Court's concession that "(t)he Government did show that Oregon Physicians Service made a number of payments to out-of-state doctors and hospitals" for services rendered out-of-state, such payments were capable of being characterized as "few, sporadic and incidental," and the defendants' business was wholly intrastate. 343 U.S. at 338-39, 72 S.Ct. 690, at 698.

In Spears Free Clinic & Hospital v. Cleere, 10 Cir., 197 F.2d 125, a chiropractic hospital sought damages for injuries that allegedly resulted from the conspiracy of the defendants, members of a Colorado medical...