Ostrzenski, Adam v. Col Hosp Wmn Fdn Inc ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 2, 1998 Decided September 17, 1998
No. 97-7163
Adam Ostrzenski,
Appellant
v.
Columbia Hospital for Women Foundation, Inc., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 94cv02007)
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Stephen Rubin argued the cause for appellant, with whom
Maria Ostrzenska was on the briefs.
Lee H. Simowitz argued the cause for appellees, with
whom Jenifer M. Brown, Michael T. Wharton, Mary Anne
Mason, Lynda K. Marshall, Nicholas S. McConnell, Mark D.
Gately and John E. McCann, Jr. were on the brief.
Before: Edwards, Chief Judge, Henderson and Garland,
Circuit Judges.
Opinion for the court filed Per Curiam
Per Curiam: Dr. Adam Ostrzenski appeals from a grant of
summary judgment dismissing his complaint against defen-
dants under s 1 of the Sherman Act, 15 U.S.C. s 1. In his
complaint, Dr. Ostrzenski alleged that defendants--seven in-
dividual doctors and six hospitals at which they practiced--
participated in an unlawful group boycott intended to destroy
his practice. Specifically, Dr. Ostrzenski asserted that the
individual physician defendants perceived him as an economic
threat to their practices and manipulated the peer review
processes at the defendant hospitals to deny him privileges to
practice advanced laparoscopy, a technique for gynecological
surgery involving the use of a laser. The defendants moved
for summary judgment, arguing that the actions taken
against Dr. Ostrzenski were the result of legitimate peer
review decisions, based on defendants' concerns over Dr.
Ostrzenski's medical competence.
In order to prevail on a claim under s 1 of the Sherman
Act, a plaintiff must show the existence of an illegal conspira-
cy to restrain competition. Antitrust law, moreover, "limits
the range of permissible inferences from ambiguous evidence
in a s 1 case," and teaches that "conduct as consistent with
permissible competition as with illegal conspiracy does not,
standing alone, support an inference of antitrust conspiracy."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 588 (1986). In the circumstances of this case, Ostrzenski
was required to "present evidence 'that tends to exclude the
possibility' that the alleged conspirators," id., acted on the
basis of legitimate medical concerns, "rather than to imple-
ment" an anticompetitive conspiracy, id. at 598. See general-
ly Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 640-41 (3d
Cir. 1996); Willman v. Heartland Hosp. East, 34 F.3d 605,
611-12 (8th Cir. 1994); Johnson v. Nyack Hosp., 964 F.2d
116, 121 (2d Cir. 1992).
The record amply justifies the district court's determina-
tion that Dr. Ostrzenski lacked sufficient proof for a reason-
able jury to find an antitrust conspiracy rather than a legiti-
mate peer review process. For example, in one of the
incidents that led to his loss of all staff privileges at defendant
Columbia Hospital for Women, plaintiff set fire to a surgical
assistant's gown with a laser, burning a hole approximately
one foot in diameter. Plaintiff's counsel told the court below
that "[w]e don't dispute that it happened. We dispute its
relevance, its importance as a basis to deny Dr. Ostrzenski
laparoscopic privileges." This court has no difficulty in see-
ing the relevance and importance of that incident as a legiti-
mate, rather than anticompetitive basis for denying plaintiff
staff privileges.
We take as a second example one of the incidents that led
to plaintiff's loss of all staff privileges at defendant George
Washington University Hospital: An anesthesiologist report-
ed seeing extensive swelling while Dr. Ostrzenski was instill-
ing a patient with carbon dioxide. According to the anesthe-
siologist's report, Dr. Ostrzenski "did not seem to be aware of
the seriousness of this situation even though the patient's life
was in danger at one point." To the contrary, Dr. Ostrzenski
wanted to continue the procedure, and only repeated requests
by the anesthesiologist persuaded him otherwise. Although
defendants pointed to the submission of this report as one of
the important catalysts of action against Dr. Ostrzenski,
plaintiff does not contend that the anesthesiologist--who is
neither a defendant nor a competitor of plaintiff's--had any
anticompetitive motive to file a false report. Instead, plaintiff
charges that the signed report "must" have been fabricated.
Plaintiff, however, offered no evidence whatsoever to support
that charge and did not even attempt to depose the anesthesi-
ologist. Under these circumstances, plaintiff's bare allegation
does not suffice to create a genuine issue as to the authentici-
ty of the document.
In light of a record replete with incidents such as those just
described, we conclude that no reasonable jury could find
plaintiff was denied hospital staff privileges as the result of an
unlawful antitrust conspiracy, rather than because of concern
about his medical competence. Accordingly, summary judg-
ment for defendants was appropriate and we affirm the
decision of the district court.