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September 10, 1991


The opinion of the court was delivered by: Sweet, District Judge.


Defendants Nyack Hospital ("Nyack"), Daniel Berson, M.D. ("Berson"), James Dawson ("Dawson"), Kenneth Steinglass, M.D. ("Steinglass"), and Rockland Thoracic Associates, P.C. ("Rockland") have moved pursuant to Rule 56, Fed.R.Civ.P. for summary judgment dismissing the complaint of plaintiffs Fletcher J. Johnson, M.D. ("Johnson"), and Benjay Realty Corporation ("Benjay"), as well as for attorneys' fees and costs. For the reasons set forth below, the summary judgment motions are granted. The motions for attorneys' fees are denied, but the motions for costs are granted.

The Parties

Johnson, a New York resident, is a physician licensed to practice in the states of New York and New Jersey. In 1972, Johnson was granted privileges to perform vascular and thoracic surgery at Nyack, a voluntary not-for profit hospital located in Nyack, Rockland County, New York.

Benjay is a New York corporation with its principal place of business in Upper Nyack, New York. At all relevant times, Benjay was owned and controlled by Johnson.

Steinglass, a New York resident, is chief of thoracic and vascular surgery at Nyack. Berson was the director of the Department of Surgery during the period relevant to the complaint. Dawson served as Nyack's administrator during the relevant period.

Rockland is a New York professional corporation owned by Steinglass and Alfred Moscarella, M.D.

Prior Proceedings

On February 8, 1990, Johnson and Ben-jay filed their complaint alleging violations of the federal antitrust laws and tortious interference with economic advantage. The complaint alleged that Steinglass and Dawson conspired to revoke Johnson's privileges to perform thoracic and vascular surgery at Nyack in order to eliminate Johnson as a competitor in the market for thoracic and vascular surgery services.

The complaint alleged Johnson competed in the relevant market with other doctors at Nyack and had privileges to perform this type of surgery at other hospitals in Rockland County as well as plans to establish a "medical mall" in the area. According to the complaint, Johnson in 1984 announced plans for the "medical mall" — a treatment center that was to provide in a single location services from various specialists.

On August 30, 1990, Steinglass and Rockland filed their summary judgment motions. On October 18, 1990, Nyack, Berson and Dawson filed their summary judgment motions. A series of adjournments agreed to by the parties postponed the return date of the motion until May 30, 1991, as of which date the motion was considered fully submitted.

The Facts

The Steinglass Review

On January 1, 1985, Steinglass began his first three year term of service as chief of the Section of Thoracic and Vascular Surgery at Nyack (the "Section").

Under Nyack's by-laws (the "By-Laws"), a section chief is "accountable for all professional . . . activities within his department." By-Laws Art. V, § 3(1). Shortly after being named section chief, Steinglass met with Berson and Dawson to discuss quality of care in the Section and agreed to conduct a review of all cases performed by Section members. The review consisted of an examination of all 222 cases performed by the nine Section members over the period from December, 1984 through June 1985. The review analyzed each surgeon's technique, judgment and documentation skills.

Steinglass concluded from the review that Johnson's performance fell below minimally acceptable standards. Steinglass recommended to Berson the revocation of Johnson's medical staff privileges to perform thoracic and vascular surgery.

The Experts' Review

Before taking any further action, Nyack retained two independent experts in thoracic and vascular surgery — Dr. E.F. Conklin ("Conklin") and Dr. Graham W. Knox ("Knox") — to review Johnson's thoracic and vascular cases. The experts, in separate and independent reports, also found that Johnson provided substandard care.

Nyack's Revocation Decision

On January 28, 1987, Berson informed Nyack's Credentials Committee that the Department of Surgery recommended that Johnson's thoracic and vascular surgery privileges not be renewed.

On February 10, 1987, Nyack's Credentials Committee held a special meeting to consider Berson's recommendation. At this meeting, Steinglass presented the conclusion reached in his report. The Steinglass, Knox, and Conklin reports were made available for the Credentials Committee members' review. The Credentials Committee recommended the revocation of Johnson's thoracic and vascular surgery privileges, based on the Surgery Department's recommendations, the reports of Steinglass and the two experts, and its own review.

In accordance with procedures required under the By-Laws, Nyack's Medical Executive Committee met on February 10, 1987 to consider the matter. Under the By Laws, the Medical Executive Committee consists of the directors of each department; the President, past President, and Secretary-Treasurer of the medical staff; and three active members of the medical staff elected by the medical staff. Twenty-four members of the Nyack medical staff attended this meeting as members of the Medical Executive Committee. Of that group — which represented ...

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