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EZEKWO v. AMERICAN BD. OF INTERNAL MED.

May 11, 1998

IFEOMA EZEKWO, M.D., Plaintiff, against AMERICAN BOARD OF INTERNAL MEDICINE, MONTEFIORE MEDICAL CENTER, EMPIRE BLUE CROSS AND BLUE SHIELD, and THE BRONX HEALTH PLAN, Defendants.


The opinion of the court was delivered by: OWEN

OPINION AND ORDER

 OWEN, District Judge

 Plaintiff, Dr. Ifeoma Ezekwo, is a physician licensed in New York State to practice both internal medicine and opthamology. She maintains a practice at 2685 Grand Concourse in Bronx, New York, and had admitting privileges at various hospitals. *fn1" Regardless of these credentials, however, Dr. Ezekwo did not receive board certification in internal medicine until August 1997, after having failed the certifying exam in 1984, 1990, 1992, 1994, and 1995. Despite her practice, but flowing from her repeated exam failures, Dr. Ezekwo now asserts that the American Board of Internal Medicine, the certifying organization, along with various health care providers have conspired to boycott her from the practice of and restrained trade in internal medicine, and that they have monopolized, or attempted to monopolize, the market area being defined as roughly the North Central Bronx. All of these claims are asserted under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, with Dr. Ezekwo seeking treble damages and injunctive relief under Sections 4 and 16 of the Clayton Act respectively, 15 U.S.C. §§ 15, 26. *fn2"

 The defendants are the certifying organization, the said American Board, and Montefiore Medical Center, Empire Blue Cross/Blue Shield, and The Bronx Health Plan (BHP), an HMO regulated under New York law. In response to Dr. Ezekwo's claims, each, other than Empire, seeks judgment on the pleadings, Fed. R. Civ. P. 12(c). All seek dismissal of the complaint for failure to state a claim for which relief can be granted on the basis of Fed. R. Civ. P. 12(b)(6). The Board, Montefiore and BHP also move for conversion to summary judgment as allowed under Fed. R. Civ. P. 12(b), 56(c). Finally, Montefiore and BHP also assert immunity under The Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152, which grants limited immunity as to money damages for those participating in professional peer review processes. 42 U.S.C. §§ 11101(5), 11111(a).

 The Board administers the certifying exam that Dr. Ezekwo repeatedly failed. It is a private, non-membership organization that provides for the voluntary certification of internists, which the public and health care employers may, but are not required to, rely upon in making health care and employment choices. The Board is not a health care provider or employer and creates its certification criteria independent of the market, having no control over how the certification is used or perceived once it is granted. *fn3"

 Over the years, however, *fn4" the Board's certification has become an important credential for internists, with many (but not all) hospitals, insurance companies and HMOs relying on its certification of a doctor's knowledge and competence in the field of internal medicine. The other defendants, Montefiore, Empire, and BHP, each rely upon the Board's certification--among other things--to some extent in their employment choices. It is this reliance that Dr. Ezekwo equates with conspiracy.

 When Dr. Ezekwo first failed the Board's examination in 1992, she requested--under the Board's established review procedures--that her exam be rescored by hand. *fn5" When the hand-scoring revealed no errors, Dr. Ezekwo suggested that "foul play" had taken place. After asking for and not receiving substantiation for the claim, the Board offered Dr. Ezekwo the opportunity to review her examination along with the answer key, and to meet with the Board, along with her counsel, so the Board could explain its scoring procedure. Dr. Ezekwo did not accept the Board's offer.

 In the same year, Dr. Ezekwo applied to Montefiore for admitting privileges in its Departments of Medicine and Opthamology. The record substantiates that these applications were processed according to Montefiore's by-laws and established procedures. *fn6" Of particular note, Montefiore's by-laws set forth the general qualifications required of a doctor seeking admission to its medical staff: (1) the doctor must be licensed to practice in New York State, (2) must be able to document his or her background, experience, training, (3) must demonstrate competence, good reputation, character and ability to work with others, as well as physical and mental capacity to practice, and (4) must provide supporting letters of recommendation. The by-laws also require that the applicant demonstrate an ability and willingness to satisfy the teaching and research needs of the Hospital. *fn7" Finally, the Department of Medicine requires the Board's certification in internal medicine as part of the documentation supporting an applicant's knowledge and expertise in the field. *fn8"

 Dr. Ezekwo was first interviewed by Montefiore in July 1992, by the Chair and Vice-Chair of the Department of Medicine. She was later interviewed by the Credential Committee in June 1993, which unanimously recommended her application be denied in July 1993. Shortly thereafter, both the Committee on Promotions & Appointments and the Divisional Credentials Committee recommended the same. Finally, in accordance with the by-laws, Dr. Ezekwo was informed that the Medical Staff Executive Committee (Executive Committee) had prepared an adverse recommendation for the Board of Trustees, on September 24, 1993. *fn9" The stated rationale for the adverse recommendation was (1) an evident limited fund of medical knowledge based on Dr. Ezekwo's two previous failures on the certification examination, (2) lack of ongoing involvement in house staff teaching programs and an ambivalent attitude regarding participation in the Medical Department's educational programs, and (3) failure to obtain adequate letters of recommendation from Chiefs of Medical Services at other institutions regarding Dr. Ezekwo's current hospital practice. Upon receiving notice of the adverse recommendation, Dr. Ezekwo exercised her right of appeal, requesting a hearing before the Ad Hoc Hearing Committee in October 1993.

 Dr. Ezekwo's request for a hearing triggered the extensive appellate procedures established under Montefiore's Medical Staff By-Laws. *fn10" The first hearing was held on November 30, 1993, with six subsequent evidentiary sessions being held, involving over twenty hours of review, ending February 7, 1995. While aware of her right to counsel, Dr. Ezekwo appeared on her own behalf. *fn11" Dr. Ezekwo presented documentary evidence in large volume and testimony is support of her applications. *fn12" At the close of the hearings, the Hearing Committee requested a written report marshalling the evidence from both the Executive Committee and Dr. Ezekwo. Dr. Ezekwo refused, however, to provide her report.

 After two meetings to review the record in February and May of 1994, the Hearing Committee issued a 45-page report and recommendation to the Executive Committee, noting that Dr. Ezekwo had failed the certification examination three times and--while this was not the sole basis for the denial of privileges--it did evince "a lack of fundamental medical knowledge". It also found that Dr. Ezekwo had failed to secure acceptable letters of recommendation; those provided did not address Dr. Ezekwo's teaching ability and working relationships, nor did they include the evaluation of her clinical practice by the Chiefs of Service of those hospitals where Dr. Ezekwo already had privileges. Finally, the Hearing Committee noted that Dr. Ezekwo had refused to confirm in writing that she would satisfy the Medical Department's teaching requirements despite the fact that such written confirmation was required of all applicants. *fn13" On these bases, the Hearing Committee recommended denial of Dr. Ezekwo's applications. A copy of the Committee's report was provided to Dr. Ezekwo. The Executive Committee's unanimous confirmation of its original denial of Dr. Ezekwo's applications, based on the Hearing Committee's findings, followed on June 12, 1995.

 Again, under Montefiore's Medical Staff By-Laws, Dr. Ezekwo received notice of both the Executive Committee's adverse recommendation and her right to further appellate review. Dr. Ezekwo requested that review, which was provided on August 9, 1995. *fn14" Dr. Ezekwo was then informed, on August 17, 1995, that the Medical Committee of the Board of Trustees had upheld the denial of privileges. Its recommendation was reported to the full Board of Trustees in October of 1995, and the full Board's final denial was reported to Dr. Ezekwo on October 12, 1995. *fn15"

 Earlier, in April 1993, Dr. Ezekwo first accused defendant The Bronx Health Plan (BHP) and Montefiore of collusion. *fn16" She first approached BHP for participation in its network in January 1993, and the exchange of communications that followed quickly led to threats of litigation on Dr. Ezekwo's part. *fn17" BHP chose not to put Dr. Ezekwo into its application process, stating: (1) it did not need additional opthamologist for efficiency reasons; (2) Dr. Ezekwo was not affiliated with any of the hospitals with which BHP contracted; and (3) of particular relevance to participation as an internist, BHP did not use seek solo practitioners for participation in its Plan. As BHP explained, because its network is structured such that its "primary care services are presently provided in comprehensive settings such as community health centers, where the entire family can receive a broad array of services under one roof, Dr. Ezekwo could not--as a solo practitioner--"provide the comprehensive services that [BHP's] members demand." Later, in response to Dr. Ezekwo's accusation of collusion, BHP responded as before but further emphasized that (1) even if Dr. Ezekwo were affiliated with one of its contracted hospitals, it had the right to not retain her services, and (2) BHP is an independent HMO, "not an operational unit" of Montefiore. At no point in its communications with the Dr. Ezekwo did BHP mention board certification, although it is clearly a requirement under its participation criteria.

 Finally, at some point during this chronology, Dr. Ezekwo apparently approached defendant Empire for participation within its HMO or PPO structure, but was evidently rejected. ...


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