Contents    Prev    Next    Last

            Title Miller v. Indiana Hospital

 

            Date 1991

            By Alito

            Subject Misc

                

 Contents

 

 

Page 1

230 of 238 DOCUMENTS

RALPH J. MILLER, M.D., Appellant, v. INDIANA HOSPITAL, a corporation; HENRY F. HILD; DONALD F. SMITH; WILLIAM R. McMILLEN; JOHN S. SIMPSON; THOMAS S. BARBOR; SAMUEL W. JACK, JR.; MRS. C. FRED HILDEBRAND; MRS. WANDA M. WEYANDT; HARRY C. McCREARY; C. WILMER JOHNSTON;

GEORGE M. EVANS; DONALD S. BRODY; ROGER J. RESCHINI; JOSEPH KOVALCHICK; WILLIAM G. EVANS, M.D.; MELVIN C. WILLIAMS, M.D.; ROBERT G. GOLDSTROHM, M.D.; DAVID C. HUGHES, M.D.; RALPH F. WALDO, M.D.; HERBERT L. HANNA, M.D.; RICHARD N. FREDA, M.D.; FRANK WEINER, M.D.; HENRY MITCHELL, M.D.; RALPH R. BROWN, M.D.; COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HEALTH; H. ARNOLD MULLER, M.D., Appellees

No. 90-3331

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

930 F.2d 334; 1991 U.S. App. LEXIS 6725; 1991-1 Trade Cas. (CCH) P69,409

November 5, 1990, Argued

April 19, 1991, Filed

PRIOR  HISTORY:              **1        On  Appeal  from  the United States District Court for the Western District of Pennsylvania; D.C. Civil No. 81-01091.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant sought review of a decision of the United States District Court for the Western  District  of  Pennsylvania,  which  held  that  ap- pellee hospital's denial of physician staff privileges pur- suant to its peer review procedures was within the doctrine of state-action antitrust immunity.

OVERVIEW: Appellant challenged the trial court's de- cision  which  granted  summary  judgment  for  appellees based  on  state-action  antitrust  immunity,  in  appellant's suit charging that appellee hospital wrongly denied him staff privileges. The court articulated the two-prong test for determining whether anticompetitive conduct by pri- vate parties could be deemed state action. The court found that the "active supervision" requirement had not been sat- isfied, because it had not been established that any state governmental organ had exercised ultimate authority over the  private  privilege  determinations.  The  court  rejected appellee hospital's argument,  because it failed to estab- lish that the Pennsylvania Department of Health (DOH) had the authority to review the actual decisions made by hospital peer-review committees. Finally, the court dis- agreed with appellee hospital's assertion that the DOH's disposition of appellant's petition showed that it actively

supervised peer review decisions. Accordingly, the court reversed, and vacated the order of the trial court.

OUTCOME: The court reversed and vacated the order of the trial court. The court found that the Commonwealth of Pennsylvania did not actively supervise peer review de- terminations at the time relevant to this case, as required to fall within the scope of state-action antitrust immunity.

LexisNexis(R) Headnotes

Administrative  Law  >  Agency  Rulemaking  >  State

Proceedings

HN1  See 1 Pa. Code § 35.9.

Antitrust & Trade Law > Exemptions & Immunities > Parker State-Action Doctrine

HN2  The Supreme Court has established a rigorous two- part test for determining whether private anticompetitive conduct should be deemed "state action" for purposes of antitrust immunity. First, the challenged conduct must be undertaken pursuant to a clearly articulated state policy to displace free competition with regulation; second, the state itself must actively supervise the activity. Only when both of these requirements are met may private conduct be considered state action exempt from antitrust liability. Healthcare             Law         >              Business                 Organization        & Administration > Licensing

HN3  See 28 Pa. Code § 107.3.

930 F.2d 334, *; 1991 U.S. App. LEXIS 6725, **1;

1991-1 Trade Cas. (CCH) P69,409

Page 2

COUNSEL:

J.  Bradley  Kearns,   Esq.  (Argued),   Evans,   Ivory, Moses, Hollander & MacVay, Pittsburgh, Pennsylvania, Attorneys for Appellant.

Larry       A.            Silverman,                Esq.       (Argued),               Dickie, McCamey                               &                              Chilcote, Pittsburgh,             Pennsylvania, Attorneys for Appellees.

JUDGES:

Delores K. Sloviter, Chief Judge, * Scirica and Alito, Circuit Judges.

* The Honorable Dolores K. Sloviter became

Chief Judge on February 1, 1991.

OPINIONBY:

ALITO

OPINION:

*334   OPINION OF THE COURT ALITO, Circuit Judge

This case presents the question whether the doctrine of state-action antitrust immunity recognized in Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943), applies to a Pennsylvania hospital's denial of physician staff privileges pursuant to its peer review procedures. The district court held that the hospital's conduct was immune. Because  it  has  not  been  established  that  Pennsylvania actively supervises such peer review decisions,  we will reverse.

I.

Dr.  Ralph  J.  Miller,  a  licensed  physician  and  sur- geon,  established  a  practice  in  Indiana,  Pennsylvania, in  1959.  Dr.  Miller  subsequently  purchased  land  near Indiana  Hospital,  the  only  general  hospital     **2     in Indiana  County,  and  constructed  facilities  designed  to house  a  variety  of  medical  facilities.  According  to  Dr. Miller, the hospital administrators perceived his plans as a threat to the hospital.

In 1977, after a patient under Dr. Miller's care died at the hospital, Dr. Miller was reported to the president of the hospital's   *335   medical staff for allegedly ren- dering inadequate care to the deceased patient and others. Dr.  Miller  was  subsequently  notified  that  the  executive committee intended to recommend to the hospital's board of directors that his staff privileges be revoked. Dr. Miller demanded a hearing and was notified of the date of the hearing, the charges, and the witnesses against him. At the hearing,  Dr. Miller was represented by counsel and

was afforded an opportunity to present and cross-examine witnesses. After a three-day proceeding, the committee decided to revoke Dr. Miller's staff privileges, concluding, among other things, that Dr. Miller had acted improperly in the case of the deceased patient and that he had be- haved  inappropriately  towards  various  members  of  the staff.  The  hearing  committee's  report  and  decision  was approved and adopted by the executive committee.   **3  Dr. Miller appealed this decision to the hospital's board of directors, but the board, after another hearing, affirmed the decision. Dr. Miller's staff privileges were consequently revoked.

Dr. Miller then filed an action against the hospital in the Court of Common Pleas of Indiana County, seeking restoration of his staff privileges. Dr. Miller's complaint asserted  that  the  procedures  employed  by  the  hospital were  defective  and  violated  the  hospital  by-laws  and the Due Process Clause of the Fourteenth Amendment. Although the court initially granted Dr. Miller's ex parte application for a preliminary injunction,  the court later dissolved  the  preliminary  injunction  and  denied  per- manent  relief.  On  appeal,  the  Superior  Court  affirmed. The Superior Court found no breach of the by-laws or other procedural requirements and concluded that Indiana Hospital  was  not  a  state  actor  and  was  therefore  not subject to the Fourteenth Amendment. Miller v. Indiana Hospital, 277 Pa. Super. 370, 419 A.2d 1191 (1980). Dr. Miller's petition for allowance of appeal was denied by the Pennsylvania Supreme Court. See Miller v. Indiana Hospital, 562 F. Supp. 1259, 1269 (W.D. Pa. 1983). **4  In 1977 and 1978 Dr. Miller applied for and was de- nied staff privileges. In 1979, the hospital refused to con- sider his application, and in later years the hospital refused

even to give him an application.

In   1980,   Dr.   Miller   filed   a   petition   with   the Pennsylvania Department of Health ("DOH") contending that the hospital's refusal to furnish him with an appli- cation and to process his application violated state and federal regulations and the hospital by-laws. Dr. Miller's petition requested that the DOH order the hospital to sup- ply him with an application and process his application. The DOH treated Miller's petition as a formal complaint submitted under HN1  1 Pa. Code § 35.9, a provision of general application which states:

Any person complaining of anything done or omitted to be done by any person subject to the jurisdiction of any agency, in violation of a statute or regulation administered or issued by the agency may file a complaint with the agency.

930 F.2d 334, *335; 1991 U.S. App. LEXIS 6725, **4;

1991-1 Trade Cas. (CCH) P69,409

Page 3

Section 35.9 also provides:

the agency may  . . . take . . . action which in the judgment of the agency is appropriate.

The DOH sent a copy of the petition to the hospital and instructed the hospital to submit a response. The   **5  hospital president responded with a letter stating that his letter to Dr. Miller dated December 9, 1980 provided the hospital's response to the petition. That brief letter to Dr. Miller stated that the litigation in the state courts had es- tablished that Dr. Miller "had been afforded due process in accordance with the law and the By-laws" and that the hospital therefore considered the matter closed. A short time later, the hospital's attorney sent the DOH a copy of the by-laws and contended the by-laws did not require an application to be provided to Dr. Miller because Dr. Miller was not an "initial applicant" for staff privileges. After receipt of these submissions, the DOH wrote to inform Dr. Miller that no action would be taken on his petition. The DOH letter explained that "neither the Pennsylvania Department of Health hospital regulations nor the bylaws of  Indiana  Hospital  require  that  Indiana  Hospital  pro- vide you with an application for medical staff privileges."

*336   The letter further explained that the federal regu- lations were not enforceable by the DOH. After additional correspondence from Dr. Miller, the DOH reaffirmed its decision.

Dr.   Miller   then   filed   an   action   in   the   United

**6    States  District  Court  for  the  Western  District  of Pennsylvania  against  the  hospital  and  certain  adminis- trators and physicians. Dr. Miller asserted claims under federal civil rights and antitrust statutes, as well as pen- dent state claims. Dr. Miller's civil rights claims were dis- missed in 1983, n1 and in 1987 the district court granted summary judgment for the defendants on the remaining antitrust claims. In doing so,  the district court found it unnecessary to reach the defendants' contention that they were immune from federal antitrust liability under Parker v. Brown, supra. Miller v. Indiana Hospital, 660 F. Supp.

250 (W.D. Pa. 1987).

n1 Miller v. Indiana Hospital, 562 F. Supp. 1259

(W.D. Pa. 1983).

On appeal, this court reversed and remanded, finding that genuine issues of material fact precluded summary judgment on the ground upon which the district court had relied.  Miller v. Indiana Hospital, 843 F.2d 139 (3d Cir.), cert. denied, **7   488 U.S. 870, 102 L. Ed. 2d 147, 109

S. Ct. 178 (1988). This court also noted, however, that the issue of antitrust immunity had not been decided by the

district court and should be addressed in the first instance by the district court.  843 F.2d at 145 n.9.

On remand, the district court again granted summary judgment for the defendants, this time based on immu- nity. Applying the two-prong test set out in California Retail  Liquor  Dealers  Ass'n  v.  Midcal  Aluminum,  Inc.,

445 U.S. 97, 63 L. Ed. 2d 233, 100 S. Ct. 937 (1980), for determining whether anticompetitive conduct by private parties should be deemed state action under the Parker doctrine, the district court held that Pennsylvania's regu- lations governing staff privileges and peer review activ- ities satisfied the "clear articulation" prong and that the DOH's authority and willingness to entertain petitions by aggrieved physicians under 1 Pa. Code § 35.9 satisfied the

"active supervision" prong. This appeal followed. n2

n2  The  events  at  issue  here  occurred  prior to  the  effective  date  of  the  Health  Care  Quality Improvement  Act  of  1986,  42  U.S.C.  §§  11101-

11152 (Supp. 1987).

The  defendants  have  not  raised  the  question, which is now before the Supreme Court, whether a physician who claims that the denial of staff priv- ileges violated Section 1 of the Sherman Act,  15

U.S.C. § 1, must allege a connection between the alleged anticompetitive activity and interstate com- merce. See Pinhas v. Summit Health, Ltd., 894 F.2d

1024 (9th Cir. 1989), cert. granted, 496 U.S. 935,

110 S. Ct. 3212, 110 L. Ed. 2d 660 (1990).

**8  II.

A.   HN2  The Supreme Court has established a rig- orous two-part test for determining whether private anti- competitive conduct should be deemed "state action" for purposes of antitrust immunity. First, the challenged con- duct must be undertaken pursuant to a clearly articulated state policy to displace free competition with regulation; second, the state itself must actively supervise the activ- ity.  Patrick v. Burget, 486 U.S. 94, 100, 100 L. Ed. 2d 83,

108 S. Ct. 1658 (1988); Southern Motor Carriers Rate

Conference,  Inc.  v.  United  States,  471  U.S.  48,  57,  85

L. Ed. 2d 36, 105 S. Ct. 1721 (1985): California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. at  105;  see  also  Ticor  Title  Ins.  Co.  v.  Federal  Trade Commission, 922 F.2d 1122 (3d Cir. 1991); Bolt v. Halifax Hospital Medical Center, 891 F.2d 810 (11th Cir. 1990). Only when both of these requirements are met may private conduct be considered state action exempt from antitrust liability.  Patrick v. Burget, 486 U.S. at 100.

Applying this test, the Supreme Court held in Patrick

930 F.2d 334, *336; 1991 U.S. App. LEXIS 6725, **8;

1991-1 Trade Cas. (CCH) P69,409

Page 4

v. Burget, supra, that hospital peer review determinations in Oregon   **9    were not immune from attack under the federal antitrust laws because the "active supervision" prong was not satisfied. The Court first rejected the ar- gument that the supervisory authority possessed by the Oregon Health Division met the active supervision *337  requirement.  Although  the  Health  Division  had  limited authority to review a hospital's peer review procedures, the Health Division lacked the authority to review "the ac- tual decisions made by hospital peer review committees."

486 U.S. at 102. The Court observed that a state "does not actively supervise the termination of privileges  unless a state official has and exercises ultimate authority over private privilege determinations." Id.

The Court likewise concluded that the Oregon State Board of Medical Examiners ("BOME") did not satisfy the  "active  supervision"  standard.  The  Court  found  no indication that "the BOME has the power to disapprove private privilege decisions." The Court added: "Certainly,

the defendants  have not shown that the BOME in prac- tice reviews privilege decisions or that it ever has asserted the authority to reverse them." Id.

Finally, the Court rejected the argument that review by the **10    Oregon courts satisfied the active super- vision requirement. Without deciding "whether judicial review of private conduct ever can constitute active su- pervision," the Court held that any review available in the Oregon courts fell "far short" of what would be needed to  establish  active  supervision.  Id.  at  104.  At  best,  the Supreme Court observed (id.), the Oregon courts would provide review "of a very limited nature." This review, the Court noted, would do no more than ensure that "some sort of reasonable procedure was afforded and that there was evidence from which it could be found that plain- tiff's conduct posed a threat to patient care.'" Id. at 105, quoting Straube v. Emanuel Lutheran Charity Board, 287

Ore. 375,  384,  600 P.2d 381 (1979). Such "constricted review," the Court stated, (id.)  would not constitute "ac- tive supervision" because it would not reach "the merits of a privilege termination decision to determine whether it accorded with state regulatory policy."

B. In light of the teaching of Patrick, the Pennsylvania peer review scheme at issue in this case is not immune from  antitrust   **11    challenge.  n3  We  need  not  con- sider whether the "clear articulation" standard has been met because it is apparent that the "active supervision" requirement has not been satisfied. Here,  as in Patrick, it has not been established that any state governmental organ "has and exercises ultimate authority over private privilege determinations." 486 U.S. at 102.

n3 Whether given conduct qualifies as state ac-

tion for purposes of antitrust immunity is a question of law, and our review is plenary.  Ticor Title Ins. Co. v. Federal Trade Commission, 922 F.2d at 1123.

The   defendants   maintain   that   the   Pennsylvania scheme  is  critically  different  from  the  Oregon  scheme reviewed in Patrick. Defending the rationale of the dis- trict  court,  the  defendants  contend  that  an  aggrieved Pennsylvania physician may obtain administrative review of an adverse peer review determination by filing a formal complaint with the Pennsylvania Department of Health under 1 Pa. Code § 35.9. The defendants argue that **12

1 Pa. Code § 35.9 authorizes DOH to review whether a hospital has complied with the state regulations regarding staff privileges and peer review, particularly 28 Pa. Code

§ 107.3, which provides that hospitals may not deny staff privileges on the basis of criteria unrelated to professional or ethical competence. n4 If DOH finds that these regu- lations   *338   have been violated, the defendants main- tain, DOH can disapprove a peer review decision. Indeed, the defendants assert that DOH "actually exercised these powers" in this case. Appellees' Br. at 28 (emphasis in original).

n4   HN3   28  Pa.  Code  §  107.3  provides  as follows:

(a) In order to receive favorable  rec- ommendation for appointment or reap- pointment  members  of  the  medical staff must always act in a manner con- sistent  with  the  highest  ethical  stan- dards and levels of professional com- petence.

(b)  Privileges  granted  shall  be  com- mensurate with an individual's qualifi- cations, experience, and present capa- bilities.

(c) No applicant shall be denied medi- cal staff privileges on the basis of sex, race,  creed,  color,  or  national  origin or on the basis of any other criterion lacking  professional  or  ethical  justi- fication,  including association with a prepaid group practice.

It appears that 28 Pa. Code § 107.3 and many of the other regulations upon which the defendants rely were not in effect during the period from 1977 to 1980 when Dr. Miller's privileges were revoked and his subsequent applications for privileges were submitted  and  denied.  In  1972,  the  Pennsylvania Department of Public Welfare promulgated regu-

930 F.2d 334, *338; 1991 U.S. App. LEXIS 6725, **12;

1991-1 Trade Cas. (CCH) P69,409

Page 5

lations governing the staffs of general and special hospitals. Pa. Bulletin, Vol. 2, No. 27, §§ 2.1.3.2,

4-4.10.3 (June 24, 1972). In 1977, a more detailed set of regulations, including those cited by the de- fendants, was promulgated. See 28 Pa. Code § 101 et seq. It appears, however, that these regulations did  not  become  effective  until  February  1,  1980, when the Pennsylvania Supreme Court vacated a stay it had placed on the regulations pending the appeal of an unsuccessful challenge to their valid- ity. See Hospital Ass'n of Pennsylvania v. MacLeod,

487 Pa. 516, 410 A.2d 731, 733 n.4-5 (1980). As discussed  below,  however,  the  active  supervision test has not been met even after the more detailed regulations took effect.

**13

While      the           defendants'            interpretation         of             the Pennsylvania  regulations  may  ultimately  prove  correct, we cannot conclude that the "active supervision" require- ment has been met without much clearer proof than we have  at  present  that  the  Pennsylvania  authorities  share that interpretation and have begun to act accordingly. On its face,  the centerpiece of the defendants' argument,  1

Pa. Code § 35.9, does not establish that the DOH has the authority  to  review  "the  actual  decisions  made  by  hos- pital peer-review committees." Patrick, 486 U.S. at 102. This provision states in extraordinarily broad and general terms that a formal complaint alleging a violation of an applicable statute or regulation may be filed by any per- son aggrieved by "anything done or omitted to be done by any person subject to the jurisdiction of any agency." This provision does not specifically refer to peer review pro- ceedings, and it does not reveal the nature of any review available when a peer review determination is challenged. Consequently, this provision by itself does not show that the DOH would review peer review decisions in the man- ner and to the degree demanded by Patrick.

Nor  have  we  been   **14                 directed  to  any  other authority  showing  that  1  Pa.  Code  §  35.9  confers  the power  that  the  defendants  claim.  The  defendants  have not  cited  any  official  DOH  pronouncements  substanti- ating  their  interpretation  of  this  provision.  The  defen- dants have cited two reported Pennsylvania court deci- sions in an effort to prove that DOH possesses the au- thority  to  review  staff  privilege  decisions.  These  deci- sions, however, concern review of agency conduct, rather than  review  of  the  conduct  of  a  regulated  private  en- tity, and deal with subjects bearing little if any similar- ity to peer review proceedings. See Canonsburg General Hospital v. Commonwealth Department of Health, 51 Pa. Commw. 156, 413 A.2d 1185 (1980) (DOH determination on  hospital's  application  for  federal  capital  reimburse-

ment); Powers v. Commonwealth Department of Health,

121  Pa.  Commw.  321,  550  A.2d  857  (1988)  (DOH  de- termination regarding out-patient therapy program). See also Apple v. Commonwealth Department of Insurance,

60 Pa. Commw. 492,  431 A.2d 1183 (1981) (Insurance Commission had power to review dentists' challenge to dental service plan). We cannot conclude based on these authorities that DOH **15   substantively reviews hospi- tals' decisions regarding staff privileges under 1 Pa. Code

§ 35.9. In addition, to paraphrase Patrick, 486 U.S. at 103, these authorities "certainly, do not show  that the DOH  in practice reviews privilege decisions or that it ever has asserted the authority to reverse them."

Finally,  we  disagree  with  the  defendants'  assertion that the DOH's disposition of Dr. Miller's petition showed that it actively supervises peer review decisions. On the contrary,  it  does  not  appear  that  the  DOH,  in  review- ing Dr. Miller's petition, considered anything other than the narrow procedural question whether the hospital was required  to  provide  Dr.  Miller  with  a  new  application for  staff  privileges.  Dr.  Miller's  petition  requested  that the  DOH  direct  the  hospital  to  furnish  him  with  such an application and to process his completed application; his petition did not request that DOH review the hospi- tal's  past  decision  revoking  his  privileges.  The  hospital

*339   opposed the petition on procedural grounds, i.e., that the hospital by-laws did not require that an applica- tion be provided to a physician who was not an "initial applicant"; and the DOH rejected the petition **16   in conclusory terms, stating only that the DOH regulations and hospital by-laws did not require that an application be provided. There is no indication that the DOH received or  examined  the  record  of  the  peer  review  proceeding. Thus, DOH's disposition of Dr. Miller's petition does not show that DOH reviews peer review determinations in the manner required for antitrust immunity under Patrick. n5

n5  On  appeal,  the  defendants  have  not  re- newed  their  argument,   which  was  rejected  by the  district  court  based  on  Rosenberg  v.  Holy Redeemer Hospital, 351 Pa. Super. 399, 407, 506

A.2d  408,  412  (1986),  appeal  denied,  514  Pa.

643, 523 A.2d 1132 (1986), that the Pennsylvania courts  actively  supervise  peer  review  determina- tions.  Consequently,   we  need  not  and  do  not reach this contention. Cf.  Bolt v. Halifax Hospital Medical  Center,  891  F.2d  810  (11th  Cir.  1990)

(panel found Florida's regulatory scheme provided sufficiently probing judicial review to satisfy active supervision under Patrick, but decision vacated en banc and hospital defendants subsequently waived the state action immunity defense).

930 F.2d 334, *339; 1991 U.S. App. LEXIS 6725, **17;

1991-1 Trade Cas. (CCH) P69,409

Page 6

**17  III.

Because the Commonwealth did not actively super-

vise  peer  review  determinations  at  the  time  relevant  to this case, we will vacate the order of the district court and remand for further proceedings.

	Contents    Prev    Next    Last