(1984); VII PHILLIP E. AREEDA, ANTITRUST LAW PP 1462-74 (1986)("AREEDA").
Efforts to import this principle to Section 1985(3) have met with varying results. Some circuits have rejected it outright or confined it to the narrowest of circumstances.
Others, however, have restricted Section 1985(3) on the basis of the antitrust analogy.
The Second Circuit falls into this group, although the extent of its restriction of Section 1985(3) claims is yet to be fully defined.
In Girard v. 94th Street and Fifth Avenue Corp., 530 F.2d 66 (2d Cir.), cert. denied, 425 U.S. 974, 48 L. Ed. 2d 798, 96 S. Ct. 2173 (1976), the plaintiff charged a cooperative apartment corporation and its directors with having declined to approve the assignment of a lease to her on the ground of her gender. A divided panel of the Second Circuit affirmed dismissal of the Section 1985(3) claim, essentially on the view that the corporation and its directors, who it viewed as having been sued only for actions taken in their capacities as such, were incapable as a matter of law of forming a Section 1985(3) conspiracy. Id. at 71-72. In doing so, however, it noted that the action complained was that of a single policy making body -- the board of directors -- and laid considerable emphasis on the fact that none of the individual defendants was alleged to have been "motivated by any independent personal stake in achieving the corporation's objective." Id. See also Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.), cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 679 (1978) (law school faculty and trustees incapable of conspiring to discharge professor).
Plaintiff seizes on this latter comment to argue that his claim comes within Girard because the requisite independent personal motive is supplied by personal racial bias. (Pl. Mem. 15-16) The argument, however, is without merit. In Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), the Supreme Court held that "racial, or perhaps otherwise class-based, invidiously discriminatory animus" must motivate the defendants in order to give rise to Section 1985(3) liability. Id. at 102. If personal racial bias were sufficient to defeat the intraenterprise conspiracy doctrine, the exception would swallow the rule, and Girard and Herrmann would be meaningless.
Accordingly, this Court holds that personal bias is not the sort of individual interest that takes a defendant out of the intraenterprise conspiracy doctrine where, as here, the action complained of arguably served a legitimate interest of Nyack Hospital. Accord, Hartman, 4 F.3d at 470; Robins v. Max Mara U.S.A., Inc., 914 F. Supp. 1006, 1010 (S.D.N.Y. 1996).
Plaintiff next argues that the intraenterprise conspiracy doctrine should be limited in the Section 1985(3) context to circumstances in which the alleged conspiracy encompassed no more than a single act of discrimination.
There are, to be sure, such suggestions in the cases.
As Judge Easterbrook and others have pointed out, however, "such a line responds neither to the text nor to the objectives of Section § 1985. Section 1985 depends on multiple actors, not on multiple acts of discrimination or retaliation." Travis, 921 F.2d at 111.
Finally, plaintiff argues that hospitals and their medical staffs are capable of conspiring in violation of Section 1 of the Sherman Act and, in consequence, that his Section 1985(3) claim therefore would be sufficient even if the intraenterprise conspiracy doctrine were imported wholesale from the law of antitrust. (Pl. Mem. 19-20) Although not phrased as such, the argument is a variation on the personal interest exception to the intraenterprise conspiracy doctrine alluded to in Girard.
In dealing with alleged antitrust conspiracies involving hospital medical staffs and hospitals, it is important to bear in mind that some physicians are hospital employees while others have independent practices. In the ordinary peer review or staff privileges dispute, physicians who are hospital employees rarely if ever will have interests separate from those of the hospitals that employ them and therefore rarely will be capable of conspiring with the hospitals or, for that matter, among themselves when they play their roles in the review or privileging process. Their interests and those of their hospitals and colleagues all will be congruent. Physicians with independent practices, on the other hand, present a more nuanced situation. Rarely will such physicians be in competition with the hospitals at which they practice. Some, however, will be competitors among themselves (e.g., two orthopedists) while others will not (e.g., an obstetrician and a radiologist). The degree to which private practitioners functioning in a peer review or staff privileges context may be capable of conspiring depends upon whether their private interests diverge from those of the hospital or the physician who is the focus of attention. VII AREEDA P 1471e & P 1471'b (1996 Supp.)
This view is borne out by the cases. The Second, Fourth and Eleventh Circuits, for example, have held that members of hospital medical staffs are capable of conspiring with one another in view of their separate and possibly competitive private economic interests.
Here, none of the individual defendants save Dr. Steinglass is alleged to have been a competitor of Dr. Johnson. Thus, none had any economic interest in whether his vascular/thoracic surgery privileges were revoked in 1987. Their participation in the process was solely in their capacities as members of the hospital medical staff or hospital officials. They and the hospital therefore are indistinguishable for purposes of conspiracy analysis.
Dr. Steinglass presents a different problem. He headed Rockland Thoracic Associates, P.C., a group practice engaged in vascular and thoracic surgery which competed with Dr. Johnson. Dr. Steinglass and Dr. Johnson allegedly were two of the three vascular/thoracic surgeons with the relevant operating privileges at Nyack Hospital. He therefore had a personal interest sufficient to take him out of the intraenterprise conspiracy doctrine. The question therefore becomes whether his personal interest permits the conclusion that he conspired with Nyack Hospital, which for purposes of this analysis includes the other individuals acting on its behalf.
The cases are divided on the question whether a hospital is capable of conspiring with members of its medical staff.
The Second Circuit has not yet ruled on the point. The answer, however, should depend upon straightforward application of the law of conspiracy to the specific facts of each case.
Dr. Steinglass' alleged personal interest in depriving Dr. Johnson of vascular/thoracic surgery privileges destroys his unity of interest with Nyack Hospital and thus renders him capable of conspiring with it. In order to make out a conspiracy case against these two defendants, however, Dr. Johnson must show that they entered into an agreement to achieve an illicit objective, here the depriviation on the basis of race of rights guaranteed by law. In other words, the plaintiff will have to demonstrate that Dr. Steinglass and one or more agents of the hospital, acting within the scope of their employment, agreed to revoke Dr. Johnson's privileges on the basis of his race.
As defendants have argued only that Dr. Steinglass and Nyack are incapable of conspiring as a matter of law, a proposition which this Court rejects, the question whether the evidence would permit such a conclusion as a matter of fact has not been addressed. Accordingly, the motion for summary judgment dismissing the Section 1985(3) claim as to Dr. Steinglass and Nyack Hospital must be denied.
For the foregoing reasons, defendants' motion for partial summary judgment is granted to the extent that (1) Count III is dismissed as against Drs. Berson, Steinglass and Winikoff and Mr. Dawson except insofar as plaintiff seeks recovery for emotional distress in connection with the 1994 reinstatement denial, and (2) Count IV is dismissed as against all defendants except Dr. Steinglass and Nyack Hospital. The motion is denied in all other respects. Plaintiff's motion for leave to file the second amended complaint is granted. The pleading is deemed served and filed as of this date.
Dated: February 11, 1997
Lewis A. Kaplan
United States District Court