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EZEKWO v. AMERICAN BD. OF INTERNAL MED.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


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. *fn18"

 In the first instance, I address Montefiore's and BHP's claims to immunity from money damages under Health Care Quality Immunity Act of 1986, 42 U.S.C. §§ 11101-11152 (the Act). The Act provides for such immunity where a peer review process meets certain criteria and is undertaken to achieve certain statutorily permissible ends. *fn19" The Act establishes a rebuttable presumption of the peer review's propriety that must be overcome by a preponderance of the evidence. *fn20" As such, although addressed on summary judgement, "[Dr. Ezekwo bore] the burden of proving that the peer review process was not reasonable." Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 630 (3rd Cir. 1996). At issue is whether Dr. Ezekwo submitted sufficient evidence to allow a jury-finding that, objectively, a health-care employer had unreasonably believed that it had met the standards set by the Act. See Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1333 (11th Cir. 1994); Austin v. McNamara, 979 F.2d 728, 734-35 (9th Cir. 1992). There is not enough on the record before me to determine the contours of BHP's peer review procedures, or even if it was applied in this instance. Therefore, even with the statutory presumption of propriety where a peer review process is used, BHP's claim to immunity cannot be upheld. See, e.g., Matthews, 87 F.3d at 634 (letter communication between individual doctor and hospital did not equate with a "professional review activity" such that the Act's immunity was triggered). But, Montefiore, on the other hand, has clearly established that a full and fair peer review process was used in this case, *fn21" and that it should properly receive immunity under the Act as to Dr. Ezekwo's monetary claims. Although the Act does not extend to decisions based solely on "the physician's association, or lack of association, with a professional society or association", it is clear on the record that Montefiore's rejection of Dr. Ezekwo is based on considerations relating to competence, and not just Dr. Ezekwo's non-certification. *fn22" This leaves, however, her ongoing claims for injunctive relief against Montefiore, the monetary claims against the Board, and both types of claims as pursued against Empire and BHP.

 As stated at the outset, all defendants have sought dismissal for failure to state a claim, with the Board, Montefiore and BHP seeking summary judgment. See Fed. R. Civ. P. 12(b)(6), 56(c).

 Empire is the only defendant that moved to dismiss with no motion for summary judgment. Accordingly, I first address Empire's motion to dismiss. At the threshold, I observe that "even under the liberal Federal Rules of Civil Procedure, there is a limit to how much a court may be called upon to divine in assessing the sufficiency of the complaint before it, particularly when the plaintiff is represented by counsel." Heart Disease Research Found. v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972). Conclusory allegations of antitrust violations are simply not enough. See Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 893 F. Supp. 1207, 1211 (S.D.N.Y. 1994), aff'd 62 F.3d 69 (2d Cir. 1995). Dr. Ezekwo needed to "'adequately . . . define the relevant product market, . . . allege antitrust injury, [and] . . . allege conduct in violation of antitrust laws.'" Id. (citation omitted). Thus, viewing Dr. Ezekwo's pleading as favorably as possible, Empire's motion is granted, as not a single fact is alleged to support the claim that Empire properly operates in Dr. Ezekwo's market, and allegations of conspiracy are limited to the statutory conclusion. *fn23"

 As to the remaining defense motions, I need to and do reach only those for summary judgment, which are granted. The Second Circuit has recognized that, while summary disposition is difficult as to antitrust claims, it is not improper. Capital Imaging Assocs. v. Mohawk Valley Med. Assoc., Inc., 996 F.2d 537, 541 (2d Cir. 1993). Although the defendants have the initial burden to show that no genuine issue of material fact exists as to Dr. Ezekwo's claims, once met, Dr. Ezekwo is required to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Fed. R. Civ. P. 56(e). As such, she needed to point to "genuine issue[s] of material fact that (1) defendants violated the antitrust laws and (2) the violation caused her actual injury." Maric v. St. Agnes Hosp. Corp., 65 F.3d 310, 313 (2d Cir. 1995). More than "a metaphysical-doubt" had to be shown, and Dr. Ezekwo needed to "set forth facts [] tending to preclude inference[s] of permissible conduct". Capital Imaging Assocs., 996 F.2d at 542. Summary judgment is granted not only because the defendants meet their initial burden, but because Dr. Ezekwo has utterly failed to counter with any specific facts undercutting the independence and legitimacy of the defendants' actions. *fn24"

 First, in order to bring a private action under the Sherman Act, an antitrust injury must be proven. The Sherman Act protects competition, not competitors. Balaklaw v. Lovell, 14 F.3d 793, 797 (2d Cir. 1994) (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977)). Thus, vital to any antitrust claim is the allegation that the defendants' conspiracy or illegal contract has caused injury to competition. See, e.g., Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 734 (9th Cir. 1987). "'Plaintiffs must prove antitrust injury. . . [that] reflect[s] the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation." Balaklaw, 14 F.3d at 797 (quoting Brunswick Corp., 429 U.S. 477 at 489). In turn, in order to find market injury, the impact within Dr. Ezekwo's market must be assessed, requiring some factual submission as to that market's structure and the services offered therein. Balaklaw, 14 F.3d at 800. While Dr. Ezekwo has submitted North Central Bronx--however that is defined--as the geographical market, she submits no other evidence regarding its contours. She makes only the bare allegation that her clients have less market choice due to her lack of association with defendants, providing no substantial evidence that shows the number of internists offering services in that area or that the options available to the public have been limited by the defendants' actions. As such, no alleged facts suggest market injury, and accordingly antitrust standing has not been established.

 Second, even if Dr. Ezekwo could show antitrust injury, her claim under Section 1 would fail on the merits. *fn25" She does not allege facts supporting an inference that "(1) a contract, combination or conspiracy; (2) in restraint of trade; (3) affecting interstate commerce" existed between the defendants. Maric, 65 F.3d at 313. Indeed, only if the collusion necessary for the first element was evident could I consider whether issues of fact exist as to whether an antitrust violation, per se or otherwise, has been committed. *fn26"

 Dr. Ezekwo has alleged no factual support for her claim of conspiracy, asserting only a theoretical construct. *fn27" The inference of "opportunity to conspire" is insufficient; a triable issue must exist as to whether an illegal contract between or "concerted action" by the defendants exists. See Maric, 65 F.3d at 313 (citing Capital Imaging Assocs., 996 F.2d at 545). See also Fort Wayne Telsat v. Entertainment and Sports Programming Network, 753 F. Supp. 109, 115 (S.D.N.Y. 1990) (factual basis for allegation of conspiracy under Sherman Act, Section 1, is required). Moreover, Dr. Ezekwo was required to negate any reasonable inference that the defendants acted independently and/or properly by showing they had made "a conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1984) (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (CA3 1980), cert. denied, 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981 (1981)); Capital Imaging Assocs., 996 F.2d at 545. The ordinary prospect of competition from any defendant is not enough on which to base her claim, Maric, 65 F.3d at 314, and any consequent commercial injury to her as an individual is irrelevant. See, e.g., Balaklaw, 14 F.3d at 797; Rutman Wine Co., 829 F.2d at 735. Thus, the essence of Dr. Ezekwo's complaint is that the Board, alone, developed arbitrary certification criteria that set her up for failure, and the other three defendants then relied thereon to her commercial detriment. There is only the unsubstantiated claim that defendants acted within the market for "internal medicine", and no showing that defendants agreed to or colluded in conduct injurious to that market. *fn28" Accordingly, the factual allegations not supporting a showing of concerted action, Dr. Ezekwo's Section 1 claim is dismissed on summary judgment as to defendants so moving.

 Dr. Ezekwo has also asserted a claim under Sherman Act, Section 2, 15 U.S.C. § 2, alleging that the defendants have monopolized, or attempted to monopolize, the market for internal medicine. Dr. Ezekwo's Section 2 claim falls on said defendants' motions for summary judgment for much the same reasons as do her Section 1 claims.

 First, the Act's Section 2 requires injury to the market, as opposed to individual impact, which--again--is not established on this record. See, e.g., Volmar Distrib., Inc. v. New York Post Co., 825 F. Supp. 1153, 1159-60 (S.D.N.Y. 1993). Additionally, at trial Dr. Ezekwo would have to prove that the defendants both "possess[] monopoly power in the relevant market, and . . . [that they have willfully acquired or maintained] that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992). See also, Irvin Indus. v. Goodyear Aerospace Corp., 974 F.2d 241, 244 (2d Cir. 1992) (requiring monopoly power in the relevant market, anticompetitive conduct by the defendant, and injury in fact caused by that conduct). There are simply no facts alleged supporting this. *fn29" Dr. Ezekwo has not even addressed how exactly the Board operates in the market, and has alleged no facts supporting the conclusion that Montefiore and BHP have or are seeking monopoly power, much less that such power has been wrongfully acquired or maintained, or caused subsequent market injury. Dr. Ezekwo's Section 2 claim under the Sherman Act is likewise dismissed on summary judgment.

 In sum, all of defendants' motions are granted as specified above, except for BHP's claims for immunity, which however is hereby rendered moot.

 Submit orders on notice.

 Dated: New York, New York

 May 11, 1998

 Richard Owen

 United States District Judge


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