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JOHNSON v. NYACK HOSP.

June 27, 1995

FLETCHER JOHNSON, et ano., Plaintiffs, against NYACK HOSPITAL, et al., Defendants.


The opinion of the court was delivered by: LEWIS A. KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Hospital staff privileges are essential to the practice of most, perhaps all, medical specialties. Those responsible for extending or revoking staff privileges thus stand at a critical point in the provision of medical care. They bear a weighty responsibility for protecting the public against incompetent and negligent practitioners. At the same time, the power they wield may be abused for any of a panoply of reasons that may imbue human relationships, not least of them racial, religious and ethnic bias, anticompetitive motives, and personal animus.

 On February 10, 1987, defendant Nyack Hospital revoked the thoracic and vascular surgery privileges of plaintiff Fletcher Johnson, M.D. Dr. Johnson, an African-American, claims that the decision was the product of anticompetitive motives and racial bias. The defendants contend that Dr. Johnson's privileges were terminated properly on the basis of professional incompetence and negligence and denies Dr. Johnson's charges.

 Dr. Johnson, who has continued to enjoy general surgical privileges at Nyack, and his wholly-owned real estate company here seek damages under the federal antitrust and civil rights laws and on State law theories. Defendants move for summary judgment. They contend, in the main, that they are immune from the antitrust claims under the Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11111 et seq. (1988), and that all of plaintiffs' claims are barred by the statute of limitations.

 Facts

 This is the third lawsuit, and the second in this Court, in which Dr. Johnson has sought judicial relief with respect to the 1987 revocation of his vascular and thoracic surgery privileges. His 1987 Article 78 proceeding in the New York Supreme Court was dismissed for failure to exhaust administrative remedies. On February 7, 1990, after further proceedings at Nyack Hospital, Dr. Johnson sued the same defendants in this Court, claiming that the defendants' actions violated the antitrust laws. No civil rights claims were asserted. Judge Sweet granted defendants' motion for summary judgment dismissing the complaint without prejudice for failure to exhaust administrative remedies, and his decision was affirmed by the Second Circuit on the basis that Dr. Johnson's complaint was within the primary jurisdiction of the New York State Public Health Council ("PHC"). Johnson v. Nyack Hospital, 773 F. Supp. 625 (S.D.N.Y. 1991), aff'd on other grounds, 964 F.2d 116 (2d Cir. 1992) ("Johnson I"). Inasmuch as the details of the proceedings that preceded the filing of Johnson I are described in Judge Sweet's opinion, familiarity with which is assumed, there is no need to repeat them here. The Court therefore picks up the thread following Judge Sweet's decision in September 1990.

 On January 14, 1992, the New York State Office of Professional Medical Conduct ("OPMC"), a body that is distinct from the PHC and that is responsible for bringing charges against physicians and considering revocation or limitation of their licenses, *fn1" preferred charges against Dr. Johnson and gave notice of a hearing that could have resulted in revocation of his license to practice medicine. The hearing commenced on February 10, 1992 and continued through November 17, 1992, ultimately covering a total of twenty one hearing days. The OPMC hearings thus were well under weigh when the Second Circuit affirmed Judge Sweet's decision on May 11, 1992.

 Notwithstanding the Second Circuit's holding that Dr. Johnson's claim was within the primary jurisdiction of the PHC and that the claim was not cognizable in federal court absent prior resort to that body, Dr. Johnson did not proceed promptly to the PHC. Although his brief in this Court suggested other reasons, *fn2" Dr. Johnson's counsel frankly acknowledged at oral argument that plaintiff made a tactical judgment that recourse to the PHC was unlikely to be successful as long as the charges pending against him in the OPMC remained unresolved. He therefore delayed. (May 30, 1995 Tr. at 51)

 The OPMC rendered its decision on May 6, 1993. Each side claims the decision as a victory, as the OPMC rejected most of the charges against Dr. Johnson but found that he had been guilty of negligence on two occasions and incompetence on one. *fn3" Moreover, Dr. Johnson places great weight on a letter from the hearing panel to the OPMC that was highly critical of the Nyack Hospital peer review proceedings. For purposes of this motion, however, it is immaterial who "won." The fundamental point is that Dr. Johnson did not even file a complaint with the PHC -- which the Second Circuit had held on May 11, 1992 had to be his initial step on the road to a federal forum -- until August 9, 1993. Thus, Dr. Johnson waited approximately fifteen months after the Second Circuit decision and three months after the OPMC decision before resorting to the PHC.

 After proceedings the details of which are not material here, the PHC finally ruled on September 7, 1994. While it appears that some members of the Council were concerned about one aspect of the 1987 proceedings at Nyack Hospital, there were not sufficient votes for the Council either to credit or reject Dr. Johnson's complaint. Accordingly, the PHC took no action whatever.

 In February 1994, following the OPMC decision but before the PHC ruling, Dr. Johnson applied for reinstatement of his vascular and thoracic surgery privileges. The application was reviewed by Nyack's Director of Surgery, Dr. Simon, who determined that Dr. Johnson had not demonstrated current clinical competence in the field and that the application should be denied. Three hospital committees reviewed Dr. Simon's recommendation and agreed that the application should be denied, and the Board of Trustees so concluded.

 The Hospital contended before Judge Conboy that the hearing officer's function was only to determine whether the Hospital had acted properly given the record before it, while Dr. Johnson argued that he was entitled to a de novo review. Judge Conboy indicated agreement with the Hospital, stating that the time for Dr. Johnson to have submitted evidence of his clinical competence "was at the application stage." (Id. at 75) He nevertheless afforded Dr. Johnson the opportunity to submit affidavits from those doctors so that he could rule as to whether he would permit them to testify. (Id. at 77-78) At the subsequent hearing, Johnson offered letters, rather than affidavits, from five physicians. Judge Conboy ruled that they were inadmissible and, in any case, not probative of Dr. Johnson's current competence. (Tr. Dec. 19, 1994, Docket Item No. 28, at 59-60, 78) Dr. Johnson's counsel then stated that:

 
"Given the state of the record, given the rulings, I don't think I can get the decision of the hospital changed at this point in time . . .
 
"For that reason, it is my intention to withdraw the appeal at this point, to reapply, I'm assuming the hospital will act in an expeditious fashion, and if we need to do anything after that, we will do what we [have] to do after that. (Id. at 80-81)

 Dr. Johnson has not reapplied.

 This action was filed on October 14, 1994, which was after the PHC had declined to act and during the pendency of the proceedings with respect to Dr. Johnson's application for reinstatement of his privileges. The amended complaint contains five causes of action. Counts I and II charge that the 1987 revocation of privileges violated Sections 1 and 2 of the Sherman Act, respectively. Counts III and IV allege that the revocation of Dr. Johnson's privileges and the 1994 denial of reinstatement violated 42 U.S.C. §§ 1981 and 1985(3). Count V seeks recovery for the same conduct on the ...


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