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VUCIECEVIC v. MACNEAL MEMORIAL HOSP.

September 13, 1983

SLOBODAN D. VUCIECEVIC, M.D., PLAINTIFF,
v.
MACNEAL MEMORIAL HOSPITAL, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, BERWYN ORTHOPEDIC SURGEONS, LTD., AN ILLINOIS PROFESSIONAL CORPORATION, J. LUKE MCGINNESS, EUGENE J. CULBERTSON, PETER GIAMMANCO, JR., VINCENT GUARNA, PH.D, ROBERT NOVAK, M.D., ROBERT KAMINSKI, M.D., GEORGE R. BUCKUN, M.D., ASOK K. RAY, M.D., TARIQ IFTIKHAR, M.D., KENT BORKEVEC, M.D., MILES CERMACK, M.D., HAROLD S. FIRFER, D.D.S., JAROSLAV NESKODNY, M.D., AND GERALD J. SEBESTA, DEFENDANTS.



The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff charges that the defendants have engaged in a conspiracy — a group boycott — in restraint of trade in violation of section one of the Sherman Antitrust Act, 15 U.S.C. § 1 (Count I) and national origin employment discrimination contrary to section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (Count II).

This matter is before the Court on the defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), and for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). The parties have supported and responded to the motions by bringing before the Court matters outside the pleadings. Accordingly, the motions to dismiss will be treated as if for summary judgment and disposed of as provided for in Fed.R.Civ.P. 56. In compliance with Fed.R.Civ.P. 12, all parties have been given reasonable opportunity to present all pertinent matters.

I. Facts

Plaintiff Slobodan Vuciecevic is of Serbian-Yugoslavian national origin and is a permanent resident of the United States. He is a licensed physician and maintains a medical practice in and around Berwyn, Illinois specializing in orthopedics and orthopedic surgery.

Defendant MacNeal Memorial Hospital ("MacNeal") is a public health care facility located in Cook County, Illinois. Defendant Berwyn Orthopedic Surgeons, Ltd. is a professional corporation engaged in the medical practice of orthopedics and orthopedic surgery. The officers and shareholders of the corporation include defendants Robert Kaminski, Tariq Iftikhar and Asok Ray. The remaining individual defendants are members of the administrative and medical staff and the board of directors of MacNeal.

Beginning in September of 1980, plaintiff inquired of defendants Kaminski and Ray concerning the possibility of his practicing orthopedic surgery in Berwyn with the expectation that he would be granted medical staff privileges by MacNeal. Kaminski was chairman of MacNeal's division of surgery and Ray was on the medical staff specializing in orthopedic surgery. According to plaintiff, Kaminski and Ray told him that they did not want to lose any patients to him in the event that he established a medical practice in Berwyn and they advised him not to seek staff privileges.

Plaintiff alleges that he did establish a medical practice in Berwyn in February, 1981 and applied for membership on MacNeal's medical staff. Subsequently, he appeared before a committee of the division of surgery chaired by Kaminski. The committee recommended that plaintiff be denied membership on the medical staff for reasons allegedly unrelated to his medical qualifications. Thereafter plaintiff appeared before MacNeal's credentials' committee. Again without stating any reason and allegedly without cause, the credentials' committee voted to deny plaintiff's application for membership on the staff.

Plaintiff's application was next presented to the full medical/dental staff. In September, 1981 the full staff, by a vote of 60-45, approved his application for staff privileges. Its recommendation was conveyed to the hospital's board of directors. In November, 1981 plaintiff was notified that the board had rejected his application for staff membership. In January, 1982 plaintiff, at his request, appeared before a committee of the board of directors. In March, 1982 he was notified by letter that the board of directors had reviewed the report of the interview committee and would take no further action on the application.

II. Count I

A. Liability Standard

In Count I, plaintiff alleges that his denial of staff privileges at MacNeal evidences a concerted refusal to deal and a group boycott, in violation of section one of the Sherman Act. The result of the denial, he says, prevents him from competing effectively in his profession*fn1 and impermissibly restrains interstate commerce throughout Cook County, Illinois and northwest Indiana, southern and southwest Wisconsin.

Plaintiff's allegation of an unlawful effect on interstate commerce proceeds from his contention that the defendants are directly involved in the delivery of medical/surgical and hospital services in Cook County, Illinois where MacNeal is located. These activities, in turn, allegedly have had a continuous and substantial effect on interstate commerce in that numerous nonresidents of Illinois come into Illinois to purchase medical services from plaintiff and defendants; that the purchase of services affects the financing of materials and equipment from outside Illinois which are delivered for use in Illinois; and that delivery of materials and the purchase of service in Illinois has caused other materials to flow between Illinois and other states.

Defendants move to dismiss Count I on the basis that plaintiff has failed to allege a substantial adverse effect on competition in a relevant market. Furthermore, the defendants assert that neither a product market nor a geographic market is described. Plaintiff contends that the allegations in the complaint state a per se violation of section one of the Sherman Act and, therefore, it is unnecessary to plead an adverse impact on competition in a relevant market. Plaintiff argues, however, that the complaint does sufficiently allege an adverse impact on competition in the delivery of medical services — the product ...


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