As happened in Balaklaw, 14 F.3d 793, Korshin's "claimed
injury came as a result of his losing out in the competition for
an exclusive anesthesiology contract . . . and nothing more."
Id. at 798. Looking specifically at the relevant markets, it is
clear that the Complaint fails to state a claim. "From the
consumers' point of view, nothing about the market has changed .
. . `it is clear that what occurred after the implementation of
the exclusive contract . . . was only a reshuffling of
competitors.'" Id. (quoting Coffey v. Healthtrust, Inc.,
955 F.2d 1388, 1393 (10th Cir. 1992)).*fn5 Thus, there was no change
in the exclusivity policy, only the provider changed. Balaklaw,
With respect to providers of anesthesiology services, "the
market remains similarly unaltered." Id. Again, there has
simply been a reshuffling of competitors. "The relevant market
here is the market in which anesthesiologists compete for jobs."
Id. Aside from the allegations that Korshin himself is
precluded from competing with CRA, the Complaint is devoid of
allegations that market-wide competition has been hampered by
virtue of the exclusive agreements. Furthermore, as previously
noted, there are no allegations that anesthesiologists are
precluded from joining CRA. In fact, the exhibits annexed to the
Complaint demonstrate that Benedictine urged CRA to discuss
employment opportunities with the members of its Department.
Thus, there are no indications that Korshin and other
anesthesiologists are excluded, or substantially limited, in the
broader market for employment, and, accordingly, no antitrust
injury is presented. Id.
Korshin asserts that the present matter is distinguishable from
Balaklaw and its progeny because the three defendant Hospitals
together agreed to utilize CRA exclusively or, in other words,
that the present matter involves a group boycott. Pl. Memo. of
Law, at 6-7. While under certain circumstances a group boycott
constitutes a per se violation of the antitrust laws, Balaklaw,
14 F.3d at 800, the existence of a violation of the Sherman Act
is irrelevant for purposes of standing. Id. "Regardless of any
substantive violation of the Sherman Act, . . . plaintiffs [are
still required] to establish that the defendants engaged in
anticompetitive conduct that caused them an antitrust injury."
Id.; see Levine v. Central Florida Medical Affiliates, Inc.,
864 F. Supp. 1175 (M.D.Fla. 1994), aff'd, 72 F.3d 1538 (11th
Cir. 1996), cert. denied, 519 U.S. 820, 117 S.Ct. 75, 136
L.Ed.2d 34 (1996). As previously noted, Korshin has failed to
demonstrate any such conduct or injury.
A similar situation was presented in Angelico v. Lehigh Valley
Hosp., Inc., 984 F. Supp. 308 (E.D.Pa. 1997); see also Levine,
864 F. Supp. 1175. In Angelico, the plaintiff alleged that
certain hospitals engaged in a group boycott that precluded him
from securing privileges at any hospital within the relevant
market area. As here, the plaintiff in Angelico claimed that he
had standing a fortiori because a group boycott is a per se
violation. The court rejected plaintiff's argument noting that
"[t]he question of whether a plaintiff has standing to raise
antitrust claims under any theory is a threshold issue . . .
[and][w]hether there was or was not a per se violation . . . is
irrelevant." Id. at 312 (citing Balaklaw, 14 F.3d at 800;
Baglio v. Baska, 940 F. Supp. 819, 828 (W.D.Pa. 1996), aff'd,
116 F.3d 467 (3d Cir. 1997)). The court then found that although
"it is clear that [p]laintiff was unable to obtain privileges at
any of the hospitals in this market . . . an injury to
[plaintiff] personally does not confer standing upon him without
a showing that his absence from the relevant product and
geographical markets injured competition and/or the consumers of
 surgical services in these markets. Stated otherwise, there
must be evidence of a negative impact on prices, quantity or
quality of  surgical services in the [relevant] market to show
antitrust injury and not just injury to one competitor." Id.
(citing Mathews v. Lancaster General Hosp., 87 F.3d 624, 641
(3d Cir. 1996); Tunis Bros. Co., Inc. v. Ford Motor Co.,
952 F.2d 715, 728 (3d Cir. 1991), cert. denied, 505 U.S. 1221, 112
S.Ct. 3034, 120 L.Ed.2d 903 (1992)). As noted, Korshin's
Complaint does not allege any such negative impact in prices,
quantity or quality resulting from Korshin's absence as an
available provider at the Hospitals.
Korshin next claims that the facts set forth in the Complaint
demonstrate that there will be an adverse effect on the market
and that consumer choice will be adversely affected. In support
of this contention, Korshin cites to paragraph 31 of the
Complaint wherein he states that 76.4% and 65% of the inpatient
surgical and selected obstetrical discharges for Kingston
residents and Rhinbeck and Rhinecliff residents respectively were
from the Hospitals. Contrary to Korshin's contention, however,
the Complaint does not allege a detrimental impact upon
consumers, but only upon his personal interests. In fact, the
Complaint specifically states that "[a]s a result of defendants'
exclusive dealing agreement and the elimination to the exception
to the Exclusivity Policy . . . Dr. Korshin is unable to
practice his specialty. . . . within [20 minutes] from his
residence. . . .", and that "[a]s a direct result of defendants'
exclusive dealing agreement and the elimination of the exception
to the Exclusivity Policy . . . patients and their physicians . .
. are unable to select Dr. Korshin to provide anesthesiology
services in competition with defendants [CRA]." Compl, ¶¶ 35-36
(emphasis supplied). There is no indication that consumers cannot
go to a hospital that would provide them with the
anesthesiologist of their choice, including Dr. Korshin. See
Jefferson Parish, 104 S.Ct. at 1567. Furthermore, the Complaint
itself reveals that at least one quarter of the relevant
populations have, indeed, gone to other hospitals which are only
31 miles away.
In this regard, the case of BCB Anesthesia Care, Ltd. v.
Passavant Memorial Area Hosp. Ass'n., 36 F.3d 664 (7th Cir.
1994), is instructive. In BCB, plaintiff argued that he was
precluded from practicing in the only hospital in the
Jacksonville, Illinois area. The court noted, however, that
Springfield, which contained other hospitals, "is only
twenty-five miles or so from [Jacksonville] . . . Nothing in the
Complaint suggests that patients are foreclosed from going
elsewhere in the unlikely event that they are involved in pricing
decisions. . . . Third party payers can set their own price
limits if they choose, or encourage surgery elsewhere by
preferred provider arrangements or the like. [P]laintiff can
practice . . . elsewhere — [he is] not disabled from practicing
wherever [he] choose[s]. The hospital can continue with its
present arrangement or choose another, including a return to the
arrangement with plaintiff." Id. at 668.
Similar circumstances are presented here. Korshin is not
precluded from practicing at other hospitals which are, at most,
only 31 miles away, patients are not foreclosed from going to
hospitals at which Korshin could conceivably obtain privileges,
and the Hospitals can each opt to discontinue their exclusive
arrangements with CRA and even award an exclusive agreement to
2. Efficient Enforcer
Assuming, arguendo, that Korshin did suffer an antitrust
injury, he is not an efficient enforcer of the antitrust laws.
Numerous courts have held that a physician is not the most
appropriate person to enforce potential antitrust violations in
circumstances similar to those presented here. Rather, consumers
of anesthesiology services, including patients, referring
physicians, and third-party payers, and the government would be
more "efficient enforcers" of the antitrust laws because they
have stronger interests in ensuring that prices, services,
quantity and quality remain at competitive levels. See e.g.
Addis v. Holy Cross Health System Corp., 1995 WL 914278, at * 8
(N.D.Ind. Jul.6, 1995); Rooney v. Medical Center Hosp. of
Chillicothe, 1994 WL 854372, *6 (S.D.Ohio); Leak v. Grant
Medical Center, 893 F. Supp. 757 (S.D.Ohio 1995), aff'd,
103 F.3d 129 (6th Cir. 1996), cert. denied, 520 U.S. 1251, 117
S.Ct. 2408, 138 L.Ed.2d 175 (1997).
A review of the factors identified in Associated Gen.
Contractors of California, Inc. v.
California State Council of Carpenters, 459 U.S. 519, 103 S.Ct.
897, 907 n. 31, 74 L.Ed.2d 723 (1983), support the conclusion
that Korshin is not an "efficient enforcer" of the antitrust
laws. Any alleged harm claimed by Korshin is not of the type that
Congress sought to redress with the antitrust laws. At most,
plaintiff is precluded from exercising hospital privileges at
only those hospitals that are within a twenty minute drive of his
home. He is not foreclosed from practicing elsewhere in New York
or other states. Further, the Complaint does not allege an
improper motive on the part of defendants; that is, there are no
allegations that defendants intended to control price or the
quality or quantity of available anesthesia services. Rather, the
Complaint merely alleges that defendants restrained competition
and trade by entering into an exclusive dealing agreement for
anesthesia services in the Kingston-northern Dutchess area to the
damage of Plaintiff. The materials annexed to the Complaint,
however, demonstrate that Benedictine had legitimate reasons
relating to quality of care that prompted its decision to enter
into an exclusive arrangement for the provision of anesthesiology
For the foregoing reasons, Korshin does not have antitrust
standing and, therefore, the First Cause of Action must be
dismissed. Having dismissed the federal claim, there remains no
independent basis for federal jurisdiction and, thus, the
exercise of supplemental jurisdiction is not appropriate and the
Second Cause of Action asserting state law claims must also be
dismissed. See 28 U.S.C. § 1367(c)(3); Buckley v. Consolidated
Edison of New York, Inc., 155 F.3d 150, 157 (2d Cir. 1998);
Castellano v. Board of Trustees of Police Officers' Variable
Supplements Fund, 937 F.2d 752, 758 (2d Cir. 1991), cert.
denied, 502 U.S. 941, 112 S.Ct. 378, 116 L.Ed.2d 329 (1991).
IT IS SO ORDERED.