Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78-C-2947 -- Frank J. McGarr, Judge .
Before Fairchild, Chief Judge, Cudahy, Circuit Judge, and Dumbauld, Senior District Judge.*fn*
One of the paradoxical aspects of this interesting case is that patients whose low opinion of the professional skill of their physicians impelled them to institute lawsuits for malpractice*fn1 now seek in the case at bar inter alia to require those physicians to continue to provide medical care for the plaintiff patients.
It might be against public policy, as involving something akin to a conflict of interests, to compel a physician to continue to serve a patient who has filed a malpractice suit against him. However, plaintiffs-appellants here allege (and for the purposes of a motion to dismiss we must accept as true) the existence of a broader conspiracy among all the doctors in Joliet, Illinois, to refuse to treat any person (or that person's family) who has instituted a malpractice suit against any doctor in Joliet, Illinois, in any state or federal court.
Plaintiffs are Marcia Williams and her child, and Sandra Young and her four children. They allege that they bring this action on behalf of all persons who have filed or may file a medical malpractice suit against any doctor in or around Joliet, Illinois, and that the class is numerous. Sandra Young and Marcia Williams aver that they each filed malpractice actions against those defendants whose patients they have been; that they each were notified of refusal to treat them in the future; and that they had sought to be accepted as patients by other doctors but had been refused.
Plaintiffs state, on information and belief, that all the doctors in Joliet have combined to refuse to treat any person, or family, who has brought a malpractice action against any Joliet doctor.
Other than the class action averment of numerosity, plaintiffs do not allege the size of the group refused treatment. They do allege that the medical practices of defendants affect interstate commerce; that defendants purchase much of their supplies from out of state; that they are members of national associations and governed by their policies; and that they treat welfare and medicare patients and receive payment through the mails, interstate.
The complaint alleges: (I) violation of plaintiffs' civil rights under 42 U.S.C. § 1985; (II) violation of 42 U.S.C. § 1986 by a defendant hospital; (III) violation of the Sherman Anti-Trust Act, 15 U.S.C. § 1*fn2; (IV) violation of the Illinois Antitrust Act, 38 Ill.Rev.Stat. Sec. 60-3(2); (V) intentional infliction of severe mental and emotional stress in violation of Illinois law; (VI) conspiracy to boycott, in violation of Illinois law; (VII) malicious interference with contracts, in violation of Illinois law.
The civil rights statute invoked in Count I, 42 U.S.C. § 1985,*fn3 is derived from the old Nightriders or Ku Klux Act discussed in U. S. v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). The section is applicable only where there is "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971).
The first subsection of Sec. 1985 expressly requires "force, intimidation, or threat" and is directed against preventing officials from doing their duty. This provision is obviously inapplicable to the case at bar.*fn4
The same is true of the first part of subsection (2) of Sec. 1985, which relates to deterring a witness or party from attending court, or testifying truthfully, or influencing a juror, in any United States court. Here, too, "force, intimidation or threat" is requisite, and the provision is obviously inapplicable to the case at bar.
However, subsection (2) of Sec. 1985 contains two parts, separated by a semicolon. The second part is more general in its terms, and relates to obstructing "in any manner" the due course of justice "in any State or Territory." (Perhaps this part of the subsection is intended to apply only to state or territorial courts, rather than to courts "of the United States.")
But such obstruction of justice must be undertaken "with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws." As explained in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971): "The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminating animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Hence plaintiffs have not established a cause of action under the second part of Sec. 1985(2), as construed by the Supreme Court.
Similar reasoning precludes the existence of a cause of action under Sec. 1985(3). That subsection reaches "two or more persons . . . (who) conspire or go in disguise on the highway . . ., for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." But as clearly explained in the acute analysis set forth by Judge (now Mr. Justice) John Paul Stevens, speaking for this Court in Dombrowski v. Dowling, 459 F.2d 190, 194-96 (C.A.7, 1972); and Cohen v. Illinois Institute of Technology, 524 F.2d 818, 828-29 (C.A.7, 1975), an equal protection claim of this character is one species of a claim alleging violation of the Fourteenth Amendment, and hence ...