Ford v. Cascade Health Servs. (Full Text)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civil No. 03-6256-TC
ORDER
THEODORE R. FORD, M.D.,
Plaintiff,
CASCADE HEALTH SERVICES, an
Oregon corporation; BEND
ANESTHESIOLOGY GROUP, P.C., an
Oregon professional corporation; JAMES
A. DIEGEL; STEVEN W. CROSS, M.D.;
DANIEL J. MURPHY, M.D.; and
MICHAEL E. PRICE, M.D.,
Defendants.
COFFIN, Magistrate Judge.
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Presently before the court are defendant Bend Anesthesiology Group’s motion (#104) for
summary judgment, and defendants Cascade Health Services, Steven Cross, James Diegel, Daniel
Murphy, and Michael Price’s motion (#I051 for summary judgment.
1 – ORDER
BACKGROUND
Based on the amended complaint, as well as the affidavits, declarations, and exhibits on file,
and viewed in the light most favorable to the plaintiff, the following is a synopsis of the salient facts
underlying this case.
Dr. Ford, who is Asian and African-American, is a trained and licensed anesthesiologist who
was a member of the Redmond, Oregon Central Oregon District Hospital’s (“CODH”) medical staff
from 1995 to 2001 .’ In 2000, plaintiff was offered and accepted a position as Medical Director of
CODH’s Department of Anesthesia.
In 2000, following the announcement of a merger of the Redmond hospital and St. Charles
Medical Center, various meetings were held between defendant Bend Anesthesia Group ( ” B A G )
and representatives of the Redmond hospital’s medical staff regarding the benefits of Certified
Registered Nurse Anesthetists (“CRNAs”) versus MD anesthesiologists and the future of anesthesia
services at the Redmond hospital. BAG had for several years been the predominate – and essentially,
but not completely, exclusive – provider of anesthesiology services for St. Charles.’ Management
of what would become Cascade Health Services wanted BAG to extend those services to the
Redmond hospital. Records show that plaintiff attended several of these meetings, but others were
‘CODH subsequently became Central Oregon Community Hospital (“COCH”), which on
January 1, 2001 consolidated with St. Charles Medical Center, a hospital in Bend, Oregon. The
assets and liabilities were combined into an umbrella corporation, Cascade Health Services (“CHS”),
and CODH was renamed. Recently, Cascade Health Services has been renamed Cascade Healthcare
Community, and COCH is now referred to as the Redmond campus of St. Charles. In referring to
the Redmond hospital, the court will use the terms “CODH,” “COCH,” “Redmond hospital,” and
“Redmond campus” interchangeably.
‘Although it is clear that BAG provided the lion’s share of anesthesiology services to St.
Charles, plaintiff, as an M.D. anesthesiologist with active privileges at the Redmond hospital, also
had visiting privileges at St. Charles, and apparently provided services there at least occasionally.
2 – ORDER
held without his attendance. In some of those meetings, hospital management pushed for BAG to
agree to a contract or exclusive contract to provide such services to Redmond, alongside one or more
CNRAs, but an exclusive contract was never agreed upon. These meetings, and related
communications, continued for almost two years, and in late December, 2001, CHS and BAG signed
a Memorandum of Understanding for the provision of M.D. anesthesiology services at the Redmond
hospital.
On August 3 1, 2001, plaintiff met with COCH’s Senior Vice President of Operations,
defendant James Diegel, and COCH’s Vice-president of Patient Care Services, Pam Steinke, to
discuss the renewal of plaintiffs contract as Medical Director of the anesthesia department. During
that meeting, a discussion was held regarding whether the service of anesthesia at COCH would be
privatized and whether additional CRNAs or MD anesthesiologists were going to be hired.3
Subsequent to that meeting, plaintiff solicited and received applications from MD anesthesiologists
interested in forming an MD anesthesia group which would have competed with BAG. The plan to
form an MD anesthesia group was announced by plaintiff and the chair of COCH’s surgical services
committee in September, 2001.
In late October, 2001, some staff members voiced concerns to hospital management about
what they perceived as inappropriate comments and humor used by plaintiff. These concerns were
not fully investigated, nor was plaintiff ever given a letter of reprimand or a “follow-up note” as
required by hospital policy for action taken on the basis of a complaint against him. However, on
October 26, 2001, plaintiff was provided a letter from COCH which informed him that his staff
3Plaintiff had previously discussed with COCH administration whether an all-MD anesthesia
staff would be in the best interests of the hospital. He had begun setting the groundwork for the
formation of an MD anesthesia group at COCH.
3 – ORDER
privileges at COCH, which were set to expire on October 28 ,2001 , were not going to be renewed,
that his position as Medical Director was being terminated, and that “serious allegations have been
filed with this office concerning [his] conduct at the hospital.”
On October 27,2001, plaintiffmet with Diegel, and with defendant Steven Cross, M.D., who
was President of the COCH Medical Staff. Plaintiff was informed of the complaint against him, and
was re-informed of the expiration of his hospital privileges and of his termination as Medical
Director. Plaintiff inquired whether he would be able to have staff privileges at COCH, and Diegel
informed him that he if applied for temporary staff privileges, that application would be denied, and
the denial would be reported to the National Practitioner Data B a n k 4 However, Diegal told plaintiff
that he would expedite the process with the Credentials Committee and that as part of the
credentialing process the committee would be told of the investigation into the staff complaint(s).
Plaintiff was told that if he chose to resign and withdraw his application for reappointment to the
medical staff, the “problems” would go away and no adverse reporting would be made to the NPDB
or put in his official medical staff file. Under this pressure, plaintiff withdrew his application for
reappointment to the medical staff.
On November 19 ,200 1, however, plaintiff reopened his application for privileges at COCH.
The COCH Credentialing Committee consisted of Cross, Marius Koning, Pamela Jo Irby, defendant
Daniel Murphy, and Sheryl Non i s . The Medical Executive Committee, which considered the
renewal of plaintiffs privileges, consisted of Cross, H. Derek Palmer, and defendant Michael Price.
Diegel was presented at the meetings of both committees. Both committees, in considering
4The NPDB is a flagging system intended to facilitate a comprehensive review of health care
practitioners’ professional credentials. Adverse actions taken with respect to staff privileges are
reported by NPDB to state licensing boards and health care entities.
4 – ORDER
plaintiffs application, relied on a summary prepared by Diegel. Both committees recommended
denying plaintiffs request for hospital staff privileges at COCH. Plaintiff appealed the committees’
recommendations under COCH’s Fair Hearing Plan, and a hearing before a three-member physician
panel was held on May 30,2002. That panel heard testimony from plaintiff as well as staff members
who alleged that plaintiff had acted inappropriately.
On August 1 ,2002 , the hearing panel recommended to the CHS Board of Directors that it
reconsider plaintiffs request for reappointment to the medical staff of COCH subject to plaintiffs
agreement to certain conditions. Plaintiff accepted the panel’s recommendation. However, on
November 13, 2002, the CHS Board of Directors announced that, based on an independent
recommendation by an ad-hoc committee consisting of board members and physicians, it was
rejecting the hearing panel’s decision and denyingplaintiff s application for privileges at COCH. The
five member ad-hoc committee included Diegel, Cross, and Price.
One week after the Board of Directors issued its announcement, plaintiff was informed that
COCH had reported the denial of his application to the Oregon Board of Medical Examiners
(“OBME”). Plaintiff believes COCH also reported the denial to NPDB.
Following the Board of Director’s decision to deny his application, plaintiff made a request
for active medical staff membership at CHS’ Bend hospital, St. Charles Medical Center. On June
13,2003, plaintiff received a letter from St. Charles Medical Center stating that plaintiffwould have
to f i l l out an application and provide it with a letter authorizing the credentials committee and
executive committee to review all the information concerning the circumstances of the non-renewal
of his membership to the active staff and privileges at COCH. Plaintiff did not respond to that letter.
To date, plaintiff has not obtained staff privileges at St.Charles.
5 – ORDER
Following an investigation, on July 11, 2003, OBME announced that it had found no
evidence to establish that plaintiff had violated the Medical Practices Act. Plaintiff filed the action
presently before the court on September 5 ,2003 .
In his amended complaint, plaintiff brings the following claims: (1) a claim for violation of
the Sherman Antitrust Act and Oregon’s antitrust act, against all defendants; (2) a claim for violation
of 42 U.S.C. 5 198 1 (race discrimination) against CHS, Diegel, Cross, Murphy and Price; (3) a claim
for violation of 42 U.S.C. $ 1985 (race discrimination) against CHS, Diegel, Cross, Murphy and
Price; (4) a claim for violation of Title VI (race discrimination) against CHS; (5) a claim for breach
of contract against CHS; (6) a claim for negligence against CHS; and (7) a claim for intentional
interference with economic relations and prospective economic relations against all defendants
except CHS. Defendants now seek summary judgment on all claims.
STANDARD OF REVIEW
A party is entitled to summary judgment as a matter of law if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); Bahn v. NME Hosv’s. Inc., 929 F.2d
1404, 1409 (9th Cir. 1991). The moving party must carry the initial burden of proof. This burden
is met through identifying those portions of the record which demonstrate the absence of any genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial
burden is satisfied, the burden shifts to the opponent to demonstrate through the production of
probative evidence that there remains an issue of fact to be tried. Id. The facts on which the
opponent relies must be admissible at trial, although they need not be presented in admissible form
for the purposes of opposing the summary judgment motion. Id.
6 – ORDER
The court must view the evidence in the light most favorable to the nonmoving party. j3eJ
v. Cameron Meadows Land Co., 669 F.2d 1278,1284 (9th Cir. 1982). All reasonable doubt as to the
existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens,
533 F.2d 429 ,432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed
in the light most favorable to the party opposing the motion. V a l a d i n~ h am v. Boiorsuez, 866 F.2d
1135, 1 137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment
is inappropriate. Sankovich v. Insurance Co. OfNor th America, 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party “must set
forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e) (emphasis
added). Where “the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no genuine issue for trial.” Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio Corporation, 475 U.S. 574, 587 (1986). The “mere existenc,e of a scintilla of evidence in
support of the p la in t iffs position would be insufficient.” Anderson v. Liberty Lobby Inc., 477 U.S.
242, 252 (1986). If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted. Id. at 248. However, trial courts should act with caution in granting
summaryjudgment, and may deny summaryjudgment “in a case where there is reason to believe that
the better course would be to proceed to a full trial.” Anderson, 477 U.S. at 255.
I .
Plaintiff’s antitrust claims
DISCUSSION
Plaintiffs federal antitrust claims are based on Section 1 and Section 2 of the Sherman Act,
7 – ORDER
15 U.S.C. $ 5 l -2 .5 Those sections provide, in relevant part, that:
Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy,
in restraint of trade or commerce among the several States, or with foreign nations,
is hereby declared to be illegal . . . .
Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine
or conspire with any other person or persons, to monopolize any part of the trade or
commerce among the several States, or with foreign nations, shall be deemed guilty
of a fe lony . . . .
The court will consider each section in turn.
A.
Section 1 of the Sherman Antitrust Act
Section 1 of the Sherman Act prohibits contracts and conspiracies “in restraint of trade.” To
establish a violation of Section 1, “a plaintiff must demonstrate three elements: (1) an agreement,
conspiracy, or combination among two or more persons or distinct business entities; (2) which is
intended to harm or unreasonably restrain competition; and (3) which actually causes injury to
competition, beyond the impact on the claimant, within a field of commerce in which the claimant
is engaged (i.e., an ‘antitrust injury’).” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 81 1 (9th Cir.
1 988).6 Because the court concludes that there is inadequate evidence supporting plaintiffs claim
‘For purposes of this motion, the Oregon antitrust statutes, ORS 646.725 and ORS 646.730,
overlap the Sherman Act entirely, and the disposition of the state claims will be identical to that of
the federal claims. See Oregon Laborers-Emplovers Health and Welfare Trust Fund v. Phillip
Morris. Inc., 185 F.3d 957, 963 at n.4 (91h Cir. 1999).
60rdinarily, whether alleged concerted action is such an unlawful restraint is analyzed under
the “rule ofreason.” ContinentaI T.V.. Inc. v. GTE Svlvania, Inc., 433 U.S. 36 ,49 (1997). However,
in some cases, the alleged restraint, if proven, is so manifestly anti-competitive in nature and lacking
in any redeeming value that they are declared illegal per se, with no need to apply the rule of reason
balancing factors. Id. at 50. Here, the court cannot say that the alleged conduct of the parties would,
if proven, be so anti-competitive as to warrant a finding of per se illegality. See, e.g., Oltz v. St.
Peters Communitv Hospital, 86 1 F.2d 1440 (91h Cir. 1988) (appropriate analysis was rule of reason).
As such, the rule of reason analysis applies here.
8 – ORDER
of a conspiracy, only that element is analyzed.
a.
Applicable law on antitrust conspiracv
A “contract, combination, or conspiracy” under the antitrust laws may be defined as concerted
action intended to achieve a common goal. T.W. Elec. Service, Inc. v. Pacific Elec. Contractors
Ass’n, 809 F.2d 626, 632-33 (9th Cir. 1987). To establish a conspiracy, a plaintiff must present
“direct or circumstantial evidence that reasonably tends to prove that the [defendants] ‘had a
conscious commitment to a common scheme designed to achieve an unlawful objective.”‘ Wilcox
v. First Interstate Bank, 815 F.2d 522, 525 (9th Cir. 1987) (quoting Monsanto Co. v. Spray-Rite
Service Corp., 465 U.S. 752, 764 (1984)). A conspiracy cannot be inferred from parallel conduct
absent an inquiry into the motivation of the alleged conspirators, although proof of motivation is not
required if there exists direct evidence of collaboration or other probative circumstantial evidence
(beyond evidence of mere parallel conduct) from which to infer an agreement. See Wilson
Industries, Inc. v. Chronicle Broadcasting Co., 794 F.2d 1359, 1365 (9th Cir. 1986). Unilateral
conduct by a single entity does not implicate Section 1 of the Sherman Act regardless of the
magnitude of the restraint on competition. The Jeanerv, Inc. v. James Jeans. Inc., 849 F.2d 1148,
1152 (9th Cir. 1988).
There is also a special consideration regarding the summary judgment analysis of the
conspiracy element of a Section 1 claim. As noted by the United States Supreme Court, “antitrust
law limits the range of permissible inferences from ambiguous evidence.” Matsushita, supra. In
particular, evidence of conduct that is “as consistent with permissible competition as with illegal
conspiracy does not, standing alone, support an inference of antitrust conspiracy.” Monsanto, 465
U.S. at 764. In such cases, the Court has required that “[tlo survive a motion for summaryjudgment
9 – ORDER
. . ., a plaintiff seeking damages for a violation of f j 1 must present evidence ‘that tends to exclude
the possibility’ that the alleged conspirators acted independently.” Matsushita, supra (quoting
Monsanto).
Therefore, a defendant moving for summary judgment in an antitrust case under f j 1 has the
initial burden of identifying the portions of the materials on file that it believes show an absence of
a genuine issue of material fact with respect to the conspiracy. Where there is no direct evidence of
a conspiracy, the defendant may discharge its summaryjudgrnent burden by proffering a “plausible
and reasonable” alternative interpretation of its conduct that rebuts the p la in t iffs allegation of
conspiracy. See O.S.C. Corn. v. Apple Computer, Inc., 792 F.2d 1464, 1467-68 (9th Cir. 1986);
Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680 (9Ih Cir. 1985). The plaintiff must then come
forward with direct or circumstantial evidence – &, “specific facts” – capable of sustaining arational
inference of conspiracy and tending to exclude the possibility that the defendant acted independently
of the alleged co-conspirators, and thus lawfully. & Monsanto, 465 U.S. at 764; Barnes, 759 F.2d
at 680.
In summary, although the Supreme Court has not abandoned the presumption that summary
judgment is disfavored in complex antitrust cases that involve issues ofmotive and intent, see Poller
v. Columbia Broadcasting Svs., 368 U.S. 464, 473 (1962), the Court has imposed an additional
requirement in certain cases. Where an antitrust plaintiffs allegation of a conspiracy is based solely
on indirect evidence that is capable of inferences ofbo th lawful and unlawful behavior, the plaintiff
must produce some evidence tending to exclude the possibility that the defendant acted
independently. If the plaintiff cannot produce such evidence, a grant of summary judgment in favor
of the defendant is appropriate.
Matsushita, supra; Souza v. Estate of Bishop, 799 F.2d 1327,
10 – ORDER
1329-30 (9th Cir. 1986); Wilson Industries, 794 F.2d at 1362, 1365-66.
b.
Analysis in this case
A threshold matter in considering allegations of conspiracy is to determine the identity of the
alleged conspirators and the content of the alleged conspiracy. T.W. Elec. Service, 809 F.2d at 633.
The court looks to the complaint to make such determinations. Id.
In plaintiffs amended complaint, paragraph 109 sets forth the necessary information: plaintiff
alleges that “[dlefendants, and each of them, entered into a conspiracy to effectively boycott Dr.
Ford’s practice as a M.D. anesthesiologist, solo practitioner, fee for service and preclude him from
continued competition in the Central Oregon marketplace.” While this statement is capable of
differing interpretations, when combined with plaintiffs arguments in responding to the motions for
summary judgment it is clear that the alleged conspiracy is one between CHS (and the individual
CHS defendants) and BAG, and that the conspiracy was to eliminate plaintiff as a competitor to
BAG.’
As noted above, a conspiracy can be shown through direct or circumstantial evidence. Here,
however, plaintiffs Section 1 claim cannot survive summary j u d m e n t because he has presented
7 Thus, it does not appear that plaintiff is alleging a conspiracy amongst the CHS defendants.
In any event, such an allegation would fail, because the CHS defendants – CHS, Diegel, and Drs.
Cross, Price and Murphy – do not have any independent interests vis a vis Dr. Ford’s continued
practice at the Redmond hospital. None of the medical staff were in competition with Dr. Ford for
provision of anesthesiology services. Compare Oltz v. St. Peter’s Community Hosp., 86 1 F.2d 1440,
1450 (9th Cir. 1988) (finding of conspiracy permissible upon evidence of direct competition on the
part of the hospital staff who allegedly conspired with the hospital); see also Oksanen v. Pane
Memorial Hosp., 945 F.2d 696, 702 (4th Cir. 1991), cert. denied, 502 U.S. 1074 (1992); Pate1 v.
ScotlandMemorial Hosp., 1995 WL 3 19213 (M.D.N.C. 1995) at “4 (:no conspiracypossible between
hospital staff and hospital absent personal financial motive on the part of the staff). On the record
before it, the court finds that there is not a genuine issue of material fact on whether the medical
staff and the hospital could enter into a conspiracy against plaintiff, and would grant summary
judgment in favor of the CHS defendants if plaintiff intended to alleged such a conspiracy.
11 – ORDER
neither kind of evidence sufficiently tending to prove that the CHS defendants and BAG “had a
conscious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto,
465 U.S. at 764.
First, the court notes that plaintiff has not produced any direct evidence in support of his
conspiracy theory. As noted by the Ninth Circuit, “[dlirect evidence in a Section 1 conspiracy must
be evidence that is explicit and requires no inferences to establish the proposition or conclusion
being asserted.” 7-Up Bottling; Co. v. Archer Daniels Midland Co., 19 1 F.3d 1090,1093-94 (9th Cir.
1999) (quote marks and citation omitted). None of plaintiffs CHS-BAG conspiracy evidence
satisfies that test. Rather, plaintiffs evidence consists of a series of meetings and communications
between CHS or one or more individual CHS defendants and BAG, none of which even directly
refers to plaintiff or his position at the hospital in any meaningful way. Plaintiff also relies on
internal communications within BAG, and communications between BAG and prospective BAG
employees; again, none of these provide direct evidence of a plot between BAG and CHS to exclude
plaintiff from the anesthesiology market in Central Oregon. Although the meetings and
communications show that BAG was at the table with CHS in discussing the possibility of BAG
serving the Redmond hospital, a factfinder would have to make over-reaching inferences from the
fact that those meetings took place to conclude that BAG was conspiring with CHS to eliminate
competition from plaintiff.
Similarly, based on the standard set forth in Matsushita, the court finds that although plaintiff
does present circumstantial evidence in support of his claim, such evidence is insufficient to survive
summary judgement.
All defendants have shown “plausible and reasonable” reasons for the conduct complained
12 – ORDER
of by plaintiff. CHS and the CHS defendants’ actions in meeting with BAG are reasonable and
consistent with a health care provider expecting growth and wanting to bring in an expanded
anesthesiology service to meet expected needs. BAG’S actions in meeting with CHS – an entity
which consists in part of the hospital that BAG had been serving for many years – to discuss the
possibility of serving additional CHS hospitals was not unreasonable; indeed, it should be expected
that a for-profit professional corporation would examine whether expanding its service area would
be sensible. As such, the burden shifts to plaintiff to “provide specific evidence tending to show that
the [defendants were] not engaging in permissible competitive behavior. . . [and] tending to exclude
the possibility that defendants acted independently.” 7-Up Bottling Co., 191 F.3d at 1094; see also
Matsushita, supra. Even viewed in the light most favorable to plaintiff, none of the evidence
provided makes such a showing. Rather, the evidence shows that CHS wanted BAG to service the
Redmond hospital, that BAG was willing to consider servicing the Redmond hospital, and that CHS
terminated andlor failed to renew plaintiffs hospital privileges, without any specific evidence linking
the events. Assuming, arnuendo, that there was something indicating that BAG had participated in
the termination or failure to renew plaintiffs privileges, or affirmatively influenced CHS to do so,
such could be actionable under Section 1 of the Sherman Act, because of the clear inference of
intent. However, there is simply no evidence here that BAG did so. ‘To the contrary, all the evidence
supports the conclusion that CHS made that decision without input by BAG. Speculation or
conjecture, which is the only way a factfinder could make such a link, is not a substitute for
evidence.
In the absence of direct or adequate circumstantial evidence of a conspiracy, summary
judgment on plaintiffs Section 1 claim, and the corollary state law claim, must be granted.
13 – ORDER
B.
Section 2 of the Sherman Antitrust Act
Section 2 of the Sherman Act prohibits monopolies, as well as attempts to monopolize and
conspiracies towards monopolization.
1 .
Am l icab le law
To make out a claim of monopolization, plaintiff must show: (1) defendant’s possession of
“monopoly power” in the relevant market; (2) defendant’s willful acquisition or maintenance of that
power through exclusionary conduct; and (3) causal antitrust injury. American Prof 1 Testinn Sew.,
Inc. v. Harcourt Brace Jovanovich Legal and Prof1 Publications. Inc., 108 F.3d 1147, 115 1 (9th Cir.
1997); see also United States v. Grinnell Corp., 384 U.S. 563 570-71 (1966). Any person “injured
in his business or property” by such monopolization may bring suit for treble damages under Section
4 of the Clayton Act, 15 U.S.C. $ 15(a).
To make out a claim for attempted monopolization, plaintiff must show: “(1) that the
defendant has engaged in predatory or anti-competitive conduct with (2) a specific intent to
monopolize and (3) a dangerous probability of achieving monopoly power.” Spectrum Sports. Inc.
v. McQuillan, 506 U.S. 447 ,456 (1993); cf Hunt Wesson Foods. Inc. v. Ragu Foods. Inc., 627 F.2d
919, 926 (9th Cir. 1980) (conspiracy to monopolize similar to attempt to monopolize).
Monopoly power, commonly referred to as market power, is defined as “the power to control
prices or exclude competition.” Grinnell Corp., 384 U.S. at 571. Because direct evidence of the
power to control prices or exclude competitors is rarely available, courts generally rely on
circumstantial evidence of market power. United States v. Microsoft Corp., 253 F.3d 3 4 , 5 1 (D.C.
Cir. 2001).
In order to establish a defendant’s market power by circumstantial evidence, a plaintiff must
14 – ORDER
“(1) define the relevant market, (2) show that the defendant owns a dominant share of that market,
and (3) show that there are significant barriers to entry and . . . that existing competitors lack the
capacity to increase their output in the short run.” Rebel Oil, Inc. v. Atl. Richfield Co., 51 F.3d
142 1, 1434 (9th Cir. 1995); see also Western Parcel Exp. v. United States Parcel Service of America,
Lnc., 190 F.3d 974, 975 (9th Cir. 1999).
Neither monopoly power nor a dangerous probability of achieving monopoly power can exist
absent barriers to new entry or expansion. America1 Prof 1 Testing, 108 F.3d at 1 154; Rebel Oil, 5 1
F.3d at 1439. The main sources of entry barriers are: (1) legal license requirements; (2) control of
an essential or superior resource; (3) entrenched buyer preference for established brands; (4) capital
market evaluations imposing higher capital costs on new entrants; and, in some situations, (5)
economies of scale. American Prof 1 Testing, 108 F.3d at 1 154.
2.
Analvsis in this case
As a threshold matter, the court notes that plaintiff relies on the same set of facts, and same
allegations, in his Section 2 claim as he does in his Section 1 claim. Thus, the claim is listed against
all defendants, although the complained of monopoly appears to be the exclusive provision of
anesthesia services in the Central Oregon area by BAG.
However, even assuming, armendo, that plaintiffs allegation would state a claim upon which
relief could be granted, the court notes that BAG is
the exclusive provider of anesthesia services
for Central Oregon. It is undisputed that the Redmond hospital, for example, uses CRNAs for a
significant proportion of its anesthesia services, and has done so both during and after plaintiffs
practice there. As plaintiff himself notes in his complaint, the Oregon Association of Nurse
Anesthetists reports that CRNAs provide over 80% of the anesthesia in Oregon’s rural communities,
15 – ORDER
including Central Oregon.’
Although plaintiff attempts to describe the relevant market as consisting of M.D.
anaesthesiology services for Central Oregon, the court is not convinced that such a narrow market
definition is warranted. Although it is suggested that there are some particularly complex situations
that would require an M.D. anesthesiologist’s services, it is not seriously contended that CRNAs
cannot or do not competently provide anesthesia services in the majority of situations. The court
finds that on the record before it, it cannot reasonably be said that CRNAs do not compete with M.D.
anesthesiologists for the provision of anesthesia services in Central Oregon. See, e.a., Oltz, 19 F.3d
at 1314.
With that finding, it is readily apparent that BAG does not have, and is not close to having,
monopoly power over the provision of anesthesia services in Central Oregon. As noted above, there
are multiple hospitals in Central Oregon, most of which use CRNAs for most or all of their
anesthesia needs. The Redmond hospital itself has had between one and three CRNAs on staff
during all times relevant to this complaint. And although in Bend there may be little or no reliance
on CNRAs for anesthesia services, Bend alone is not the relevant markete9
‘It appears from the record that St. Charles Medical Center, in Bend, does not rely to the same
extent on CNRAs as do the rural hospitals, and that there may be less – or no – competition from
them for the BAG anesthesiologists who practice there. However, to the limited extent that plaintiff
defined the relevant market at all, it was defined as “Central Oregon,” not Bend, and the court notes
that there are multiple other hospitals in the Central Oregon marketplace that use CNRAs, including
the Redmond, Prineville and Madras hospitals.
9 The court also notes that even if Bend alone was the relevant market, and even if St. Charles
does not use CRNAs, it would still be far from certain that BAG has an illegal monopoly there.
Plaintiff himself enjoyed visiting privileges at St. Charles during the time that BAG is alleged to
have had an exclusive arrangement with the hospital, and did occasionally practice there, and at oral
argument BAG commented that no non-BAG M.D. anesthesiologist that has applied has ever been
denied privileges there.
16 – ORDER
Because no reasonable factfinder could find that BAG possesses, or is close to possessing,
monopoly power over the provision of anesthesia services in Central Oregon, plaintiffs Section 2
claim cannot stand. Summary judgment on that claim, and the corollary state law claim, is granted
in favor of defendants.
11.
Plaintiff’s racial discrimination c la ims
Plaintiff also brings claims that the CHS defendants unlawfully deprived him of his rights
and privileges under law through 42 U.S.C. $ 9 198 1 and 1985(3), and 42 U.S.C. $ 2000(d) by
discriminating against him because of his race.
A.
App l icab le law
42 U.S.C. § 198 1 provides, in relevant part:
All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make an enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the security
persons and property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and no
more.
The Ninth Circuit has held that a claim under § 198 1 is governed by the same substantive standards
applicable to race-based challenges brought pursuant to Title VII of the Civil Rights Act of 1964,
and is subject to the same burden-shifting analysis. Doe v. Kamehameha Schools/Bernice Pauahi
Bishop Estate, 416 F.3d 1025, 1039-39 (9th Cir. 2005); see also Patterson v. McLean Credit Union,
491 U.S. 164, 186 (1989), reversed on other m-ounds bv the Civil Rights Act of 1991, Pub.L.No.
102-166, 5 101 (1 991). Plaintiff must present facts from which a jury could conclude that he was
intentionally discriminated against. Gavv . Waiters’ and Da iw Lunchmen’s Union. LocalNo. 30 ,694
F.2d 53 1, 537 (9th Cir. 1982).
17 – ORDER
To establish a prima facie case of discrimination, a plaintiff must offer proof: (1) that the
plaintiff belongs to a protected class; (2) that the plaintiff performed his job satisfactorily; (3) that
the plaintiff suffered an adverse employment action; and (4) that the plaintiffs employer treated the
plaintiff differently than a similarly situated employee who does not belong to plaintiffs protected
class. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9″ Cir. 1998); see also McDonnell
Douglas C o r n v. Green, 41 1 U.S. 792, 802 (1973). The requisite degree of proof necessary to
establish a prima facie case is generally minimal, and does not even need to rise to the level of a
preponderance of the evidence.
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (gth Cir. 1994).
“The plaintiff need only offer evidence which ‘gives rise to an inference o f unlawful discrimination.’
. . . Establishment of a prima facie case in effect creates a presumption that the employer unlawfully
discriminated against the employee.” Id. (citations omitted). To rebut this presumption, the
defendant must produce admissible evidence showing that the defendant undertook the challenged
employment action for a “legitimate, nondiscriminatory reason.” McDonnell Douglas, 41 1 U.S. at
802. If the defendant does so, then “the presumption of discrimination ‘drops out of the picture”‘ and
the plaintiff may defeat summary judgment by satisfying the usual standard of proof required in civil
cases under Fed.R.Civ.P. 56(c).
Reeves v. Sanderson Plumbing Prods.. Inc., 530 U.S. 133, 143
(2000) (quoting St. Maw’s Honor Ctr. v. Hicks, 509 U.S. 502, 5 11 (1993)). Summary judgment is
not appropriate if, based on the evidence in the record, a reasonable jury could conclude by a
preponderance of the evidence that the defendant undertook the challenged employment action
because of intentional discrimination based on the plaintiffs race. See Wallis, suvra, 26 F.3d at 889.
42 U.S.C. 5 1985(3) prohibits two or more persons from conspiring to deprive any person
or a class of persons of the equal protection of the law. A plaintiff alleging a conspiracy under §
18 – ORDER
1985(3) must establish: (1) the existence of a conspiracy to deprive the plaintiff of the equal
protection of the laws; (2) an act in furtherance of the conspiracy; and (3) a resulting injury. Scott
v. Ross, 140 F.3d 1275, 1284 (9th Cir. 1998); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1539 (9th
Cir. 1992).
Finally, Title VI of the Civil Rights Act of 1964 ,42 U.S.C. f j 2000d, provides in pertinent
part that “[nlo person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial aid.” To prevail on a claim for damages under f j
2000d, plaintiff must prove that: (1) the entity involved is engaging in racial discrimination; and (2)
the entity involved received federal financial assistance. Fobbs v. Holy Cross Health System Corp.,
29 F.3d 1439, 1447 (9th Cir. 1994), overruled on other mounds. Plaintiff must present facts from
which a reasonable jury could conclude that the discrimination was intentional. Id. Additionally,
although the Ninth Circuit does not appear to have squarely addressed the issue in an employment
context, relevant cases considering similar issues strongly suggest that a Title VI plaintiff with
employment-based claims must show that the primary purpose of the federal financial assistance is
to provide employment.
Maldonado v. City of Altus, 433 F.3d 1 294, 1302-03 (1 oth Cir. 2006);
see also Remo lds v. School Dist. 1 ., 69 F.3d 1523,153 1 ( l o t h Cir. 19%) (citing supporting language
—
from the Supreme Court and similar caselaw from the Second, Fourth, Seventh, Eighth and Ninth
Circuits); 42 U.S.C. tj 2000d-3.
B.
Analvsis in this case
Plaintiff has demonstrated sufficient facts to allow his 5 1981 claim to go forward.
It is not disputed that plaintiff is a member of a protected class. Further, he has provided
19 – ORDER
evidence from which a factfinder could reasonably find that he was competent to provide the services
expected of a licensed anesthesiologist, and that the actions of the hospital in refusing to continue
to extend him staff privileges constituted an adverse employment action. Finally, plaintiff has
provided evidence that other, Caucasian physicians – who had likewise been the subject of various
complaints or concerns – were not subject to the same adverse employment action, but instead have
been allowed to maintain their staff credentials.” Plaintiff has therefore met his burden of
establishing a prima facie case of discrimination, with the resulting presumption of discrimination.
For their part, the CHS defendants have also met their burden of reing that presumption.
Defendants have pointed to a series of complaints against plaintiff brought by several staff members
alleging sexually harassing conduct, and have provided evidence that plaintiff had previously been
verbally chastised for making similar inappropriate remarks. In the face of the immediate rash of
complaints and the history of prior conduct, refusing to re-credential plaintiff could reasonably said
to be a legitimate, non-discriminatory decision.
With the the presumption of discrimination thus “dropp[ing] out” of the equation, the
question becomes whether plaintiff has provided evidence from w h k h a reasonable factfinder could
conclude that the stated non-discriminatory reason is merely a pretext for discrimination, and that
the real reason for the employment decision was intentional discrimination on the basis of plaintiffs
race. Plaintiff has met his burden of providing such evidence.
“Although the CHS defendants argue that the Caucasian doctors are not fair comparisons
because they were not identically situated with plaintiff, the court finds that their situations – which
involve such things as verbal threats to other staff and alleged drinking on the job – are close enough
to the harassment and inappropriate behavior allegations brought against plaintiff to use them for
comparison, especially when one considers the hospital’s rationale in refusing plaintiffprivileges was
largely patient and staff safety.
20 – ORDER
As mentioned above, there is evidence in the record that although plaintiff was not allowed
to continue practicing at the Redmond hospital, several Caucasian physicians who had complaints
or concerns lodged against them were not similarly barred.” Additionally, there is evidence in the
record that at least one other non-Caucasian physician, a surgeon (Dr. Daryl Choo), who had enjoyed
privileges at the Redmond hospital as part of a three-doctor practice had been, in essence, uninvited,
while his colleagues were not similarly treated.I2 A reasonable jury could conclude from the whole
of the record that the CHS defendants violated the plaintiffs rights under 5 1981 by intentionally
discriminating against him on the basis of his race.
Similarly, a genuine issue of material fact exists as to whether some of all of the CHS
defendants were engaged in a conspiracy to deprive plaintiff of his rights. Although for purposes
of the Sherman Act claims the CHS defendants would be incapable of conspiring together because
their interests were essentially wed, such is not necessarily the case regarding plaintiffs civil rights
claims. Some or all of the individual CHS defendants could have harbored a racially-discriminatory
animus against plaintiff and conspired with each other to deprive him of his rights outside the
boundaries of their responsibility to the hospital. Given that the only body without the individual
CHS defendants as members – the Hearing Panel – recommended granting plaintiff privileges, that
1 1 To the extent that the CHS defendants argue that claims against the Caucasian doctors were
investigated and found to lack merit or to be insufficient to warrant termination of privileges, the
court notes that a jury could conclude from the record that prior to informing plaintiff that his
application for renewal of privileges would be denied the hospital did not provide him the benefit
of such an investigation. Further, the one body that clearly took significant evidence regarding the
complaints against plaintiff – the Hearing Panel – was the one body that recommended reinstating
plaintiff with certain conditions. Its recommendation was then rejected by the ad hoc committee.
”Dr. Price allegedly told Dr. Choo’s colleagues that if Dr. Choo continued to be with their
practice, Dr. Price and his medical group would cease referring patients to their practice.
2 1 – ORDER
every committee with some or all of the individual defendants recommended denying plaintiff
privileges, and that, as described above, a reasonable jury could conclude that the denial of privileges
was motivated by racial discrimination, plaintiff has provided sufficient evidence to allow a
reasonable jury to find that some or all of the individual defendants were engaged in a conspiracy
to achieve that end.
However, plaintiff has not provided any evidence from which a reasonable jury could
conclude that any federal funds received by CHS were intended to provide employment. This claim
was not heavily briefed or fully discussed at oral argument; however, in reviewing the record, the
court has not found any material indicating in what way the hospital receives federal funding or
whether some or all of that funding is intended to provide employment. Certainly the court has not
found a nexus between that funding and the discriminatory practices alleged by plaintiff. As such,
summary judgment on plaintiffs fj 2000d claim is granted in favor of CHS.
111.
P la int iffs breach of contract claim
As his fifth claim for relief, plaintiff alleges that the hospital bylaws are a contract between
plaintiff and the hospital, and that by failing to follow certain policies within the bylaws – to wit, the
sexual harassment policy, the disruptive conduct policy, and the fair hearing plan – the hospital
breached the contract. CHS seeks summary judgment on this claim on the basis that the bylaws are
not an enforceable contract between plaintiff and the hospital.
CHS bases its argument on the fact that under ORS 441.055(3) and (4) and OAR 333-505-
0020, the hospital is charged with selecting a medical staff and the medical staff is required to
propose bylaws for their governance, that as such the hospital was under a pre-existing duty to create
bylaws benefitting the medical staff, and that therefore there was no independent consideration given
22 – ORDER
by plaintiff to create an enforceable contract. No Oregon cases are on point, but there are at least
some cases that have held as defendants suggest. See, e . g , O’Bvme v. Santa Monica-UCLA Medical
However, the better reasoned cases have found to the contrary. For example, in Virmani v.
Presbyterian Health Services Corn., 127 N.C.App. 71 ,488 S.E.2d 284 (1997), the court stated that:
We acknowledge the general rule that the promise to p e r f om an act which the
promisor is already bound to perform cannot constitute consideration to support an
enforceable contract. Thus the mere enactment of a set of bylaws pursuant to the
statute is a preexisting duty and cannot itself constitute consideration for the
formation of a contract. When, however, a hospital offers to extend a particular
physician the privilege to practice medicine in that hospital it goes beyond its
statutory obligation. If the offer is accepted by the physician, the physician receives
the benefit ofbe ing able to treat his patients in the hospital and the hospital receives
the benefit ofproviding care to the physician’s patients. If the privilege is offered and
accepted, each confers a benefit on the other and these benefits constitute sufficient
and legal consideration for the performance of the contract. If the offer includes a
condition that the physician be bound by certain bylaws promulgated by the hospital
and the physician accepts the offer, those bylaws become a part of the contract, as
there is mutual assent to be bound by the bylaws.
Id., S.E.2d at 288 (citations omitted). Here, plaintiffs appointment was subject to the terms and
–
conditions of the bylaws he now seeks to enforce. Upon his acceptance of the hospital’s offer of staff
privileges, the bylaws became part of plaintiffs employment agreement with the hospital supported
by the consideration o fh i s agreement to practice there, and that agreement is an enforceable contract.
Although there is no Oregon case on point dealing with Oregon’s statutory scheme, most
jurisdictions that have considered the question have reached a similar conclusion. See, e.g., Janda
v. Madera C omm u n i t ~ Hosp., 16 F.Supp.2d 1 18 1, 1 184 (E.D.Ca1. 1998) (recognizing a split of
authority but noting that “the majority ofjurisdictions have held that hospital bylaws, when approved
and adopted by the governing board, are a binding and enforceable contract between the hospital and
23 – ORDER
physicians.”). CHS’ motion for summaryjudgment on plaintiff s breach of contract claim is denied.I3
IV.
Plaintiff’s neplipence claim
As his sixth claim for relief, plaintiff alleges that the hospital was negligent in failing to
adequately process his June 2001 application for staff privileges, and in failing to enforce its Sexual
Harassment and Disruptive Conduct policies, resulting in the cascade of events occurring in October
2001 leading to the termination of his privileges. CHS seeks summary judgment on this claim on
the bases that there was no special relationship between the parties and that plaintiff was at greater
fault than the hospital, precluding his claim against it.
On the failure to enforce policies allegation, the court finds that plaintiffs negligence claim
must fail for want of a “special relationship” between the parties. Although Oregon law recognizes
that in some circumstances a breach of contract can give rise to tort liability, “[tlhe modem cases
carry forward and refine the basic idea that a tort action between parties to a contract can arise when
the plaintiffs damages result from breach of an obligation that is independent of the terms of the
contract, that is, an obligation that the law imposes on the defendant because of his or her
relationship to the plaintiff, regardless of the contract between them.” Jones v. Emerald Pacific
Homes, Inc., 188 0r .App . 471 ,476 (2003) (citing Conway v. Pacific University, 324 Or. 23 1 , 2 3 7
(1 996); Georgetown Realtvv. The Home Ins. Co., 3 13 Or. 97 ,106 (1992); Securities-Intermountain
13 CHS’ argument in the alternative that plaintiffbreached the contract first and therefore CHS
cannot be in breach is not well taken. Plaintiff alleges that CHS did not provide him the process
required by the bylaws as a result of the accusations leveled against him; the hospital cannot relieve
itself of that obligation by conclusory statements that because those charges were made the plaintiff
breached the agreement and the process was therefore not required. Regardless, the better course
for purposes of evaluating what actually occurred – both in terms of plaintiffs conduct and CHS’
response – it to allow a jury to hear the evidence and make its own determination.
24 – ORDER
v. Sunset Fuel, 289 Or. 243 ,259 (1980); Kisle v. St. Paul Fire &Mar ine Ins., 262 Or. l , 6 – 7 (1972)).
The Jones court summarized the state of the law, noting that “parties to a contract are in a ‘special
relationship’ imposing a heightened duty of care and thereby creating potential tort liability when one
party delegates to the other the authority to make important decisions with the understanding that
the authority is to be exercised on behalf of and for the benefit of the authorizer.” Id. at 478.
As the basis for plaintiffs “failure to enforce” negligence claim stems solely from the
existence of the contract between the parties, plaintiff must demonstrate the existence of such a
“special relationship” to maintain those claims. This he has not done. Nothing in the record suggests
that plaintiff authorized the hospital to exercise authority on his behalf; he did not entrust his
personal or financial health to the hospital, for example. The hospital did not take on the role of a
professional advisor or fiduciary. The bylaws at issue are standard employment fare, designed to
ensure that employees are treated fairly and equitably when allegations are brought against them
while setting out procedures to investigate the complaints. No duty, beyond the contract itself, was
created. As such, this portion of plaintiffs negligence claim fails.
However, the allegation that the hospital was negligent in processing plaintiffs application
for privileges necessitates something of a different analysis. Although also a topic of hospital
bylaws, the procedures for processing an application for privileges are applicable to candidates
regardless of whether they are in a contractual relationship with the hospital; in other words,
plaintiff, even in the absence of a contract with the hospital, would still be entitled to the benefit of
the statutorily-mandated policies for granting privileges.14 A plaintiffs tort claim may exist “even
if it is based on an obligation that the defendant assumes as an express or implied term of the
14&
ORS 441 .O55(3)(c).
25 – ORDER
contract, so long as the obligation would exist even if it were not in the contract.” Georgetown
Realty, supra, 3 13 Or. at 106. Because plaintiff was owed the benefit of the hospital’s policies and
procedures for timely consideration of an application for staff privileges irrespective of his contract
with the hospital, his negligence claim on that basis can proceed.15
V.
Plaintiff’s intentional interference with economic relations claim
As his seventh claim for relief, plaintiff alleges that all defendants except CHS unlawfully
interfered with his economic relations – i.e.,
his ability to practice medicine at the Redmond hospital.
Defendants seek summary judgment on this claim, arguing that there was no such interference, and
that plaintiff cannot show an improper means or an improper purpose.
To state a claim for tortious interference with economic relations, a plaintiff must
demonstrate: (1) the existence of a professional or business relationship; (2) intentional interference
with that relationship; (3) by a third party; (4) accomplished through improper means or for an
improper purpose; (5) a causal relationship between the interference and damage to the economic
relations; and (6) damages. Volm v. Leaacv Health Svs., 237 F.Supp.2d 1166, 1176 (D.Or. 2002)
(citing McGanty v. Staudenraus, 321 Or. 532 (1995)).
It is apparent, based on the above determination on plaintiffs antitrust claim, that BAG
cannot be said to have tortiously interfered with plaintiffs practice. As previously mentioned, no
reasonable factfinder could conclude that BAG was at all involved in the decision to terminate, or
fail to renew, plaintiffs staff privileges. Because there is no evidence of interference, plaintiffs
15 CHS’ argument that plaintiff was at fault at a greater percentage than the hospital, and that
he therefore cannot maintain a negligence claim against it, is better considered by a jury who can
consider all the evidence surrounding the hospital’s policy regarding applications for privileges and
what plaintiff and CHS did, and did not do, in processing plaintiffs application.
26 – ORDER
claim against BAG must fail.
However, there is evidence in the record from which a factfinder could conclude that the
events culminating in the revocation ofplaintiff s privileges occurred because of racial discrimination
on the part of some or all of the CHS defendants. If a jury found that the CHS defendants caused
the revocation of his privileges, and did so out of a racial animus, such would constitute interference
and an unlawful purpose. See, e.g., E n ~ q u i s t v. Oregon Dept. of Agriculture, 2004 WL 792790 at
“16 (D.Or. 2004) (“[Tlhe court finds that plaintiff has offered evidence sufficient to raise questions
of fact as to whether Szczepanski and Hyatt developed and implemented ap lan to terminate plaintiff
because o fhe r race, gender, andlor national origin. Accordingly, it is for a finder of fact to determine
whether Szczepanski and Hyatt . . . interfered intentionally with plaintiffs contractual relationship.”).
As such, the claim can proceed against the individual CHS defendants.
V l . Defendan ts’ immunitv defenses
The Health Care Quality Immunity Act of 1986 (“HCQIA”) was promulgated to provide
limited immunity for hospitals and health care practitioners for their participation in professional
peer review proceedings. 42 U.S.C. 9 1 1 101 et. seq. To qualify for immunity, the proceeding must
have been a review based on the competence or professional conduct of an individual physician that
affected, or may affect, the clinical privileges of the physician. 42 U.S.C. fj 1 1 15 l(9) . However, the
immunity does not apply in cases where the damages suffered by the physician stem from violations
of the physician’s civil rights. 42 U.S.C. fj 11 11 l ( a ) ( l ) ; see also Mever v. Sunrise Hosp., 117 Nev.
3 13 ,325 n.5 (2001) (“We recognize that there will be instances where the subjective motives of the
peer review committee will be relevant in determining HCQIA immunity. For example, when a
doctor alleges that she was disciplined because of her race, religion, or sex[.]”). Further, the
27 – ORDER
immunity does not apply if the action taken by the peer reviewers was primarily based on ” a n y . . .
matter that does not relate to the competence or professional conduct of a physician.” 42 U.S.C. 5
11151(9).
The remaining issues in this case involve a breach of contract separate from the peer review
process; a claim for negligence separate from the actual review conducted during peer review;
conduct that tortiously interfered with plaintiffs economic relations, based on an alleged violation
of plaintiffs civil rights; and plaintiffs direct claims for violations of his civil rights. In none of
these claims is application of the HCQIA immunity appropriate. As such, defendants’ request for
dismissal of all claims against them, and for their attorney fees, is denied.
Similarly, defendants argue that ORS 41.675 provides immunity for their good faith actions
in peer review proceedings. Even assuming, armendo , that ORS 41.675 would apply in this action,
the remaining claims involving peer review relate to plaintiffs allegations that he was unlawfully
discriminated against. If a jury so found, the defendants’ participation would not be in good faith,
and immunity would not attach. See, =, Virmani v. Novant Health, 259 F.3d 284, 293 (4th Cir.
2001). As such, application of the protection of ORS 41.675 is inappropriate.
CONCLUSION
For the above stated reasons, defendants’ motions (## 104, 105) for summary judgment are
granted in part and denied in part. The motions are granted as to p la in t iffs anti-trust claims,
plaintiffs Title VI claim, plaintiffs negligence claim based on the hospital’s failure to enforce bylaw
policies, and plaintiffs tortious interference claim against BAG. The motions are denied as to
plaintiffs 5 5 198 1 and l985(3) claims, plaintiffs breach of contract claim, plaintiffs negligence
claim regarding the processing of his application for privileges, and plaintiffs tortious interference
28 – ORDER
claim against the individual CHS defendants. Because no claims remain against it, defendant BAG
is dismissed as a party to this lawsuit. Defendants are not entitled to the immunity provisions of the
HCQIA or ORS 41.675 on the remaining claims against the CHS defendants.
DATED this& day of June, 2006.
United s t a t e s h a g i s t r a t e Judge
29 – ORDER