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September 5, 2002


The opinion of the court was delivered by: Young, Chief Judge.[fn1] [fn1] of the District of Massachusetts, sitting by designation.


Dr. M. Pierre Rafiy ("Pierre Rafiy") and his son, Dr. Philip Rafiy ("Philip Rafiy") (collectively the "Rafiys") bring this civil action pursuant to 42 U.S.C. § 1983 and the Sherman Act, 15 U.S.C. § 1 and 2, against the Nassau County Medical Center (the "Medical Center"), the County of Nassau (the "County"), Dr. Bruce Meinhard ("Meinhard"), and Dr. Anthony Angelo ("Angelo") (collectively the "Defendants"). The Rafiys argue that actions taken by the Defendants to relieve the Rafiys of "on call" assignments at the Medical Center's Emergency Room and of assignments to supervise resident physicians at the Medical Center's orthopedic outpatient clinic effected a deprivation of property — professional hospital privileges — without due process of law in violation of the Due Process Clause of the Fourteenth Amendment (Count One). amounted to racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment (Count Two). constituted retaliation for the exercise of free speech rights in violation of the First Amendment (Count Three). and reflected monopolistic practices and a combination or conspiracy in restraint of trade in violation of the Sherman Act (Count Four).

The Defendants have moved collectively for summary judgment. They argue that, with respect to the due process claim, the privileges revoked by the Defendants are not "property" in a constitutional sense; and even if they are, the Rafiys have not availed themselves of state administrative procedures to challenge the revocation of privileges, and thus cannot be heard to have been deprived of property "without due process." With respect to the Rafiys' free speech claim, the Defendants argue that the Rafiys' "speech" for which they ultimately suffered retaliation did not address matters of public concern, and therefore is not protected speech. Moreover, even if it was protected speech, the Rafiys have failed to show any retaliatory intent, either directly or circumstantially. With respect to the Rafiys' equal protection claim, the Defendants argue it should be dismissed because the Rafiys have failed to adduce evidence of an impermissible motive on the part of the Defendants, and because the incidents of which they complain are insufficiently severe or pervasive to constitute racial harassment. On all of the Rafiys section 1983 claims, Drs. Angelo and Meinhard argue that they are entitled to qualified immunity. With respect to the Rafiys' antitrust claim, the Defendants argue that the Rafiys lack antitrust standing because they have failed to show that the Defendants' actions injured competition, as opposed merely to injury to the Rafiys as competitors.


The facts recited below are taken from the Complaint ("Compl.") [Docket No. 1] and documents appended to the Rafiys' Opposition to the Defendants' Motion for Summary Judgment ("Pls.' Opp'n") [Docket No. 47], as well as the Defendants' Rule 56.1 Statement of Facts ("Defs.' Facts") [Docket No. 42] and Declaration in Support of Motion for Summary Judgment ("Epstein Decl.") [Docket No. 44], to the extent that those documents are not contradicted by the Complaint. All facts averred in the Complaint are taken to be true, and all reasonable inferences from those facts are drawn in favor of the Rafiys in determining whether a reasonable factfinder could find for the Rafiys on any of their claims. As will be made clear below, however, many of the issues involved here are matters of law to be decided by the Court.

According to the Rafiys, this case is about a doctor (Meinhard) who had it in for them because they are foreigners of Persian descent who have dark skin and speak with accents. The Rafiys are both licensed physicians specializing in orthopedic surgery. Meinhard was, for most of the time relevant to this dispute, the chairman of the department of orthopedics at the Medical Center. Angelo was, at all relevant times, director of the Medical Center. Pierre Rafiy was granted privileges at the Medical Center in approximately 1970. Compl. ¶ 13. Philip Rafiy was granted privileges in August 1994. Id. ¶ 14. According to the Rafiys, these privileges

entitle [them] to admit their private patients to the Hospital; they also have clinical privileges whereby they are placed on the on-call schedule of the Emergency room and orthopedic clinics where they are assigned to work with various patients who visit the hospital; thereafter plaintiffs remain the treating physicians of these patients.

Id. ¶ 15. Once the Rafiys' on-call and clinic privileges were revoked, they began losing access to patients and referrals of patients, which caused them a loss of income, damaged reputations, and emotional distress.

The particular incidents that led to the revocation of the Rafiys' privileges are outlined in their complaint. In July 1986, Pierre Rafiy and Meinhard got into a disagreement about the proper surgical procedure for a particular patient. Pierre Rafiy recommended that a procedure not be performed, but Meinhard disagreed, and the procedure was performed. Compl. ¶ 19. This incident led to two letters penned by Pierre Rafiy, one to the acting chairman of the orthopedics department of the Medical Center in September 1986, the other to Meinhard in October 1986, in which Pierre Rafiy complained of this incident in particular, and of Meinhard's poor medical judgment and lack of leadership within the department in general. Id. ¶¶ 20-23; Pls.' Opp'n Ex. 1 (Letter from Pierre Rafiy to Frank M. Hudak ("Hudak"), Acting Chairman of the Department of Orthopedics, dated September 11, 1986); id. Ex. 2 (Letter from Pierre Rafiy to Meinhard, dated October 20, 1986). After these and other letters were sent by Pierre Rafiy in 1997 to Meinhard, Hudak, and the Medical Center, see infra p. 307 (discussing the 1997 letters), Meinhard took a number of retaliatory actions against Pierre Rafiy, including attempting to discredit Pierre Rafiy and his son in front of other doctors, instructing residents not to assist Pierre Rafiy with operations, Compl. ¶ 24-25, and ultimately removing the Rafiys from the on-call and clinic schedules in September 1998, id. ¶ 17.

Pierre Rafiy's son Philip Rafiy also suffered mistreatment by Meinhard. In January 1996, for instance, Philip Rafiy arrived at the Medical Center to find that a patient upon whom he was scheduled to operate had been transferred to another doctor, Dr. Leone ("Leone"), who was a private practice partner of Meinhard. Compl. ¶ 28. In response to the dispute between Rafiy and Leone, Meinhard told Rafiy that "he would be willing to forget about the matter if Dr. Philip Rafiy agreed to leave the hospital." id. ¶ 30. Philip Rafiy refused Meinhard's offer. As a result, according to the Rafiys, a Risk Committee at the Medical Center was convened to evaluate Philip Rafiy's proposed treatment of the reassigned patient, and concluded that such treatment did not meet the appropriate standard of care. Thereafter, Philip Rafiy was not allowed to conduct spinal surgery without being supervised by another orthopedic surgeon, and was relieved from teaching duties until the monitoring restrictions were lifted. Id. ¶ 33. Philip Rafiy requested a hearing pursuant to Medical Center rules to challenge this restriction on his practice. Id. ¶ 35. According to Philip Rafiy, "[i]t was subsequently determined through an impartial consultant Dr. Philip Rafiy had met the standard of care with respect to the treatment of this patient." Id. ¶ 36. In response to this incident, Philip Rafiy fired off an angry letter to Meinhard on July 14, 1996. Pls.' Opp'n Ex. 3 (Letter from Pierre Rafiy to Meinhard, dated July 14, 1996). In September 1998, Philip Rafiy's on-call and clinical privileges were revoked. Compl. ¶ 17. He wrote a letter to Meinhard and Angelo requesting an explanation for the revocation, but was told only that his services were no longer needed. Id. ¶¶ 38-39.

According to the Rafiys, Meinhard discriminated against them on the basis of race and national origin. In their view, Meinhard did not treat other similarly-situated physicians the same way he treated them. Meinhard repeatedly said things like "you foreigners come here and have big houses and country clubs," id. ¶ 52, that the Medical Center "is not for you, it is for American born people," id. ¶ 53, that Pierre Rafiy's foreign accent was not worthy of practicing in a University-affiliated teaching center, id., and that the Rafiys' country of origin was "ignorant and backwards," id.

Not surprisingly, the Defendants tell a very different version of events. To the Defendants, this case is about two substandard and highly unprofessional doctors with respect to whom the Defendants exercised lawful discretion vested in them to take away but a fraction of the privileges those doctors enjoyed at the Medical Center. Indeed, the Defendants do not even consider the on-call and clinic schedules from which the Rafiys were removed to be "privileges" as that term in defined by state law and the hospital bylaws. See infra Part III.A.1.a. According to the Defendants, the Rafiys engaged in a host of unprofessional and careless activity that caused Meinhard to remove them from the on-call and clinic schedules. With respect to Pierre Rafiy, the Defendants assert that he:

(i) badgered patients for insurance information and payments, often harassing patients at their homes, notwithstanding hospital policy to treat patients regardless of ability to pay;
(ii) undertook surgical procedures for which he was unqualified or unprepared to perform. depending entirely on medical residents to prepare for and perform the surgeries, and in some instances, failing to seek a consultation and support in certain difficult areas;
(iii) failed to follow up with patients after surgeries, anticipate complications, and take preventive measures to avoid conditions from worsening;
(iv) disrupted of [sic] the orthopedic office and its administrative activities, violated patients' confidentiality, and altered records;
(v) arrived at the orthopedic clinic late and left early;
(vi) skimmed patients' charts for insurance information, pushing patients with Workers Compensation insurance or its equivalent for surgery with the residents, while not making such efforts with similar patients without insurance.

Defs.' Facts ¶ 70. With respect to Philip Rafiy, the Defendants aver that he:

(i) failed to properly take care of patients;

(ii) failed to accept a patient and transfer a patient upon whom he had performed surgery when a ...

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