The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
This is an antitrust case brought by an anesthesiologist
against various hospitals and a group of anesthesiologists.
Plaintiff Jonathan Korshin, M.D. ("Korshin") claims violations of
section 1 of the Sherman Act, 15 U.S.C. § 1 and section 4 of the
Clayton Act, 15 U.S.C. § 15.*fn1 Korshin alleges that
Benedictine Hospital ("Benedictine"), Kingston Hospital, and
Northern Dutchess Hospital ("Northen Dutchess") (collectively the
"Hospitals"), in anticipation of a merger, entered into exclusive
agreements with Defendant Cross River Anesthesiologists, P.C.
("CRA") of which he was not a member and, therefore, he is unable
to practice medicine in the regional market. Korshin alleges that
the exclusive agreements with CRA constitute a group boycott and
unreasonable restraint of trade that prevents him from rendering
anesthesiology services in the relevant market area. The
defendants now move to dismiss the Complaint pursuant to
FED.R.CIV.P. 12(b)(6) on the grounds that: (1) Korshin has failed
to adequately allege antitrust injury, and (2) Korshin violated
the doctrine of primary jurisdiction.
The following facts are taken from the Complaint which, for
purposes of a motion pursuant to Rule 12(b)(6), must be accepted
as true. See Bernheim v. Litt, 79 F.3d 318, 321 (1996).
Effective January 1, 1995, Korshin was appointed as a member of
the courtesy medical staff in the Department of Anesthesia at
Benedictine (the "Department"). Korshin was reappointed as a
member of the active medical staff with privileges for
anesthesiology and pain management as of April 1, 1996.
On August 16, 1996, the Benedictine Board of Directors (the
"Board") adopted an exclusivity policy (the "Policy") which
provided that all anesthesiology services be provided by
anesthesiologists and certified registered nurse anesthetists
("CRNA") employed or engaged by Benedictine. The Policy contained
a "grandfather clause" that permitted physicians, such as
Korshin, who had staff privileges at Benedictine prior to the
adoption of the Policy to provide services on elective cases when
a specific request for that anesthesiologist was made by the
surgeon performing the procedure.
Sometime in 1996 or early 1997, the date of which is unclear,
the Hospitals entered into merger negotiations. In June 1997,
prior to merger, the Hospitals agreed that they would all obtain
anesthesiology services exclusively from CRA, which was already
providing services at Northern Dutchess.*fn2 In accordance with
this agreement, by June 5, 1997, Benedictine selected CRA as the
exclusive provider of anesthesiology services, effective
September 1, 1997. CRA was instructed to meet with each member of
the Department, including Korshin, to discuss potential
employment opportunities with CRA. Korshin alleges that he sought
to become an employee of CRA, "but was unable to do so." Compl.,
¶ 34. Benedictine notified Korshin that it was terminating any
and all contract and agreements, written or oral, effective
September 1, 1997.
By memorandum dated June 17, 1997 the Board advised all
physicians in the Department that the Policy was under review and
that the Board was considering amending or deleting the
grandfather clause. A meeting was scheduled for June 19, 1997 to
discuss the proposed changes to the Policy.
In September 1997, the Board adopted a resolution that
eliminated the grandfather clause to the Policy and selected CRA
as the exclusive provider of anesthesiology services effective
October 1, 1997. The resolution further provided that any
anesthesiologist and CRNA currently on the medical staff and not
part of the exclusive group would retain membership on the
medical staff and clinical privileges, but would no longer be
able to exercise clinical privileges within the Department.
1. A non-exclusive practice situation leads to
competition among anesthesiology providers for
patients with widely differing potentials for
reimbursement, leads to internal strife within the
Department, is detrimental to practice and has the
potential to adversely impact quality of care.
2. A single group arrangement eliminates the issue of
economics among the individual Anesthesiologists
because all losses and gains of the group are shared.
Thus, a single group arrangement facilitates
assignment of Anesthesiologists to particular cases
based on the best interests of the patient without
regard to economic concerns.
3. A single group arrangement will promote
consistency of service, day to day operation of the
operating suite, quality control and safety of
patients; promote effective selection and utilization
of equipment within the Department; facilitate
continuous availability of anesthesiology services;
more clearly assign responsibility for the
administration, supervision and training of
Department personnel; and promote efficient and
economical operation of the Department and
cooperation among members of the Department and
Medical Staff Members who use the operating suite.
4. Creating a unified structure will facilitate
development of diverse practice skills among the
Anesthesiologists, thereby increasing the group's
capacity to develop programs of quality to focus on
special areas of importance and to be flexible ...