L. Ed. 2d 148 (1992), we cannot allow plaintiff to proceed on that claim as it pertains to her contract to serve on the Hospital's medical staff. We recognize that the Supreme Court has granted certiorari on the retroactivity issue and that this circuit will be revisiting, en banc, that issue in Mojica v. Garnett Co., Inc., F.2d (7th Cir. March 4, 1993). Until we are directed otherwise, however, we must follow what we believe is the law in this circuit, and we believe that the law here is that the 1991 amendments have no retroactive effect on conduct prior to their passage.
Plaintiff contends that she should be allowed to proceed on the portion of her claim relating to her contract to serve on the medical staff because, despite the enactment of the Civil Rights Act of 1991, the Hospital has continued to abide by its allegedly discriminatory decision not to renew that contract. We think her argument muddles the distinction between acts and the harm that acts can cause. Vakharia may have felt the impact of the Hospital's allegedly discriminatory acts well after the effective date of the 1991 amendments, but that does not mean that the 1991 amendments apply to those acts. The question, according to the court in Luddington, is whether § 1981 prohibited the defendants' acts when they were committed. 966 F.2d at 229. Under Patterson, § 1981 did not prohibit the Hospital's acts when they were committed, at least not as they pertained to the medical staff contract between Vakharia and the Hospital. The Hospital stood by its decision even after the 1991 amendments went into effect, but we cannot see its maintaining of the status quo as a distinct discriminatory act to which the amendments would apply.
Vakharia marshals a second reason to allow her to go forward on her § 1981 claim as it relates to her contractual relationship with the Hospital. She contends in her second amended complaint that, in addition to seeking a continuation of her medical staff privileges, she also sought appointment as chairperson of the Department of Anesthesiology after Dr. Loeber resigned from that post. According to Dr. Vakharia, the chairperson has significant supervisory responsibilities beyond those of regular members of the medical staff, and Hospital bylaws would have entitled her to that position had she been a member in good standing of the staff. With those new allegations, her case becomes not merely a discriminatory discharge case but a discriminatory refusal-to-promote case. Under Patterson, § 1981 encompassed suits for the discriminatory denial of promotions when the "nature of the change in position was such that" it offered "an opportunity for a new and distinct relation between the employee and the employer." 491 U.S. at 185. The portion of her claim against the Hospital relating to the Hospital's refusal to promote her to the chairperson post is therefore cognizable under § 1981.
Defendants assert that just as Vakharia should be disallowed from naming new defendants, so should she be disallowed from alleging new facts or legal theories on which to base her claims. They complain that she failed to mention in her initial complaint important facts about the final months at the Hospital, such as her application for the chairperson post, and that those details emerged only when she amended her complaint, more than two years after the incidents at issue occurred. Fed.R.Civ.P. 15(c) is not as strict as defendants would have it. Because defendants had fair notice prior to the expiration of the statute of limitations of the claims against them and the general transactions and occurrences on which those claims are based, Fed.R.Civ.P 15(c) permits relation back of the amendments to the complaint that add facts or modify legal theories, even though those amendments were filed after the statute of limitations period had expired. See Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 410 (7th Cir. 1989), aff'd on other grounds, 494 U.S. 820 (1990). See also Moore's Federal Practice, P 15.15[3.-2]. We would note that in this case Vakharia did not even allege a new cause of action, as the plaintiff did in Donnelly. She may proceed on her § 1981 claim against all of the remaining defendants on the old theory relating to her potential contracts with patients, and she may proceed on her § 1981 claim against all of the defendants named in the first complaint on the new theory relating to her potential elevation to the chairperson's position. Because the acts relating the denial of Vakharia's application for the chairperson's position occurred before July 15, 1990, the defendants on the Board of Directors who were named for the first time in the amended complaints may not be held liable on the second theory.
Section 1985 Claims Against Remaining Defendants
The Supreme Court laid out the requirements for a claim under § 1985(3) in Griffin v. Breckenridge, 403 U.S. 88, 102 (1971):
To come within the legislation a complaint must allege that the defendants did (1) "conspire . . ." (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of [the] conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States."
Section 1985(3) does not create any substantive rights. As the Supreme Court explained in Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979), "it merely provides a remedy for violation of the rights it designates."
A plaintiff suing under § 1985 must point to rights or privileges afforded to citizens under some federal law and must allege that the defendants conspired to deny the plaintiff those rights. Conspiracy to deny a right guaranteed under state law is not enough. Thus, in United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983) (Carpenters), the Supreme Court held that the plaintiffs had not made out a cause of action under § 1985(3) when they alleged that they had been beaten by the defendants after protesting certain labor practices. The Court explained that the defendants, who were all private citizens, did not endeavor to deprive the plaintiffs of their First Amendment rights when they beat the plaintiffs, because the First Amendment protects individual speakers against censorship by the government, not by other individual citizens. State laws may prohibit violent censorship by private citizens, but the First Amendment does not.
In this case Vakharia purports to base her § 1985(3) claim on rights that she says are secured by three federal statutes: Title VI; the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd; and § 1981. We conclude that Vakharia is not within the range of persons protected by either Title VI or the EMTALA, and that her § 1985(3) claim cannot by supported by either of those statutes. On the other hand, as explained, we do believe that § 1981 protects persons like Vakharia from the kinds of harms she claims the defendants intended, and that a § 1985 claim can be based on a conspiracy (even an unsuccessful one) to violate § 1981.
To assess Vakharia's attempt to make out a § 1985 claim based on a conspiracy to violate Title VI, we turn to the caselaw interpreting Title VI. The Seventh Circuit held in Doe on Behalf of Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 418 (1986) (Doe), that a doctor who had served on the medical staff of a hospital receiving federal funds could not state a claim under Title VI based on discriminatory termination of her staff privileges. Here, as in Doe, the defendant hospital received federal funds, but, as in Doe, there is no claim that hospital staff members were the intended beneficiaries of those funds. Here the hospital received federal funds through participation in the federal Medicare and Medicaid programs. Medicare and Medicaid funds are allocated for the purpose of providing medical care, and while the doctors who perform the medical services receive a benefit from those programs, the intended beneficiaries are the patients, not the doctors. Because doctors at hospitals receiving federal funds are not protected in such circumstances by Title VI, Doe at 420-21, Title VI cannot support Vakharia's claim under § 1985(3). See also Vuciecevic v. MacNeal Memorial Hosp., 572 F. Supp. 1424, 1429-30 (N.D.Ill. 1983). The Fifth Circuit gives plaintiff comfort in United States v. Harris Methodist Ft. Worth, 970 F.2d 94 (5th Cir. 1992), but that court does not recognize a physician as a Title VII employee. We also do not believe that plaintiff can avoid the Doe conclusion by claiming to act as a representative of patients.
Dr. Vakharia's attempt to plead a § 1985(c) action through EMTALA is also unavailing. Although doctors who report violations of the Act are protected against retaliation by the Act's own terms, 42 U.S.C. § 1395dd(i), Vakharia never alleges that she reported instances of "patient dumping" to anyone (other than this court). She fails to indicate how her presence on the medical staff reduced patient dumping, or how her termination increased it. She has not alleged that any of the defendants sought to deny her any of the rights that she was given under EMTALA. We fail to glean any intention to permit physicians to invoke patient rights in the rather carefully sculpted remedial provisions of 42 U.S.C. § 1395dd, and we fail to see any legally cognizable class-based animus in any event.
Her attempt to plead a § 1985(a) action through § 1981 is more successful. Defendants do not dispute the general proposition that a § 1985(c) claim can be supported by a conspiracy to deny a person rights secured by § 1981. They argue simply that Vakharia was not protected by § 1981 because her contract with the Hospital already existed at the time the alleged discrimination began. But that argument already has been rejected, and a limited § 1981 claim remains. Thus, the only issue remaining is whether, as defendants contend, Vakharia has failed to plead sufficient facts to support the conspiracy element of § 1985(c).
Conspiracy Under § 1985 and the Sherman Act
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), spawned the doctrine that there cannot be an "intra-enterprise" conspiracy under the antitrust laws. Plaintiff claims here a conspiracy to monopolize, to restrain trade, to discriminate against her, and to violate § 1985. We assume, for the purposes of ruling upon a motion to dismiss, that the allegations are based on a belief, after reasonable inquiry, that they are well grounded in fact. Thus we assume, for now, that the Hospital, ASA and all 39 doctors consciously committed themselves to a scheme to discriminate against plaintiff because she is an Asian foreign-born woman, and for the purpose of restraining competition in anesthesiological services at the Hospital.
Plaintiff contends that the Copperweld doctrine does not apply to the § 1985 claims because they are civil rights claims and, with respect to all claims, because she alleges multiple acts and because the various defendants have separable interests and acted contrary to the interests of the Hospital. Civil rights claims such as these may be treated differently from antitrust claims in some jurisdictions, but not in this circuit. Two decades ago the Seventh Circuit held in an opinion by Judge (now Justice) Stevens that a discriminatory business decision reflecting "the collective judgment of two or more executives of the same firm" cannot satisfy the conspiracy element of § 1985(3). Dombrowski v. Dowling, 459 F.2d 190, 196 (1972). A business cannot conspire with itself. That was reemphasized in Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108 (7th Cir. 1990). Rejecting the notion that multiple acts negate the doctrine, the Travis court went on to resolve doubts against an increased ambit of § 1985 when, as here, other federal civil rights remedies are available. "Intra-corporate dealings under § 1985 therefore should receive the same treatment as intra-corporate dealings under the Sherman Act . . . ." Id. at 110.
What then is the appropriate treatment under the Sherman Act? Judge Aspen, in Pudlo v. Adamski, 789 F. Supp. 247 (N.D.Ill. 1992), reviewed a number of the pertinent cases and concluded that members of a medical staff are capable of conspiring among themselves but that the Hospital cannot be a conspirator. We agree in part. Members of the staff may have any number of interests somewhat different from those of the Hospital, but that is true of corporate officers generally who have individual interests in their careers, their advancement and their compensation. The Sherman Act, section 1, proscribes agreements that unreasonably restrain trade. We believe that plaintiff must prove that defendants acted out of personal economic interest in restraining competition. Here plaintiff alleges that defendants Loeber, Chookaszian, Myent and Konowitz were anesthesiologists who benefitted by the restriction and then termination of plaintiff's practice. The claim is one of horizontal competitor collaboration. See Bolt v. Halifax Hospital Medical Center. 891 F.2d 810 (11th Cir. 1990), cert. denied, 495 U.S. 924 (1990). The Hospital allegedly knowingly acquiesced in the efforts to get rid of plaintiff and it made the final decisions. We cannot infer that it did not act in its own perceived best interests. Perhaps the ASA defendants should be covered by the doctrine because they were not competitors and acted, in a vertical relationship, as agents at the behest of the Hospital. See Travis, 921 F.2d at 111. The ASA is, however, a separate enterprise and the reviewing doctors were associated with ASA, not the Hospital. In fact, the ASA doctors were retained to perform independent review. We leave them, for now, as defendants capable of conspiring. We do not, however, view the allegations as disclosing personal economic stakes of the other doctors, distinct from the Hospital's, or as describing centers of separate social or economic influence sufficient to cause the other doctors to be capable of conspiring with the Hospital.
Although the ASA, the ASA doctors, and Drs. Myent and Konowitz are theoretically capable of being named as co-conspirators, they were not named in the original complaint. The § 1985 claims against them are barred by the applicable statute of limitations. Of the defendants who can be regarded as co-conspirators, only the Hospital and defendants Loeber and Chookaszian were named in the original complaint. Therefore, only they are proper § 1985 defendants.
Antitrust Claims Against Remaining Defendants
Antitrust claims based upon restrictions or termination of staff privileges have been particularly troubling to the courts. On the one hand antitrust claims escalate the stakes and multiply the expense in what may be frivolous claims regarding loss of status by one physician at one hospital. On the other hand, termination of staff privileges, necessarily disclosed to any subsequent hospital to which a physician has applied for staff privileges, can seriously hinder or prevent any future staff relationship.
Here plaintiff alleges that defendants violated section 1 of the Sherman Act by conspiring in restraint of trade, and section 2 by conspiring to monopolize and attempting to monopolize the provision of anesthesiologist services at the hospital. To prove a violation of either section, a plaintiff must show more than efforts by the defendants to prevent the plaintiff from obtaining a specific job or contract. The plaintiff must allege that the defendants sought to reduce competition in, or monopolize, an entire market. Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2 (1984) (interpreting § 1); Spectrum Sports, Inc. v. McQuillan, 122 L. Ed. 2d 247, 113 S. Ct. 884 (1993) (interpreting § 2). A claim by an anesthesiologist that she was kept out of one hospital, when there are several hospitals in the area, ordinarily is not enough. Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 480 n.5. (7th Cir. 1988), cert. den. 488 U.S. 852 (1988); Ezpeleta v. Sisters of Mercy Health Corp., 800 F.2d 119, 121-22 (7th Cir. 1986), implied overruling on other grounds recognized by Lim v. Central DuPage Hosp., 972 F.2d 758, 761 (7th Cir. 1992); Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1353 (7th Cir. 1982). We think restraint of trade and monopolization claims based upon the hospital as the relevant market cannot survive. The restraint of trade claim, however, extends to a broader market. Plaintiff claims that she was foreclosed from entering and continuing in the market at other hospitals in the Chicago area and that the reported termination of privileges has caused her to be effectively unemployable. The ASA defendants contend that plaintiff has not alleged a sufficient nexus to interstate commerce, a jurisdictional predicate. We disagree. The pleadings are not much dissimilar from those in Summit Health, Ltd. v. Pinhas, 114 L. Ed. 2d 366, 111 S. Ct. 1842 (1991). Moreover, Summit Health was not confined to an exposition of the niceties of pleading jurisdiction. The Court made it clear that it considered a conspiracy to restrain competition that resulted in an exclusion of a doctor from practice in the Los Angeles area as running afoul of section 1 of the Sherman Act, and the dissent so recognized. Here defendants argue that the termination of Vakharia affected only the doctors at Swedish Covenant Hospital, and not the relevant market as a whole, but the Summit Court rejected such analysis.
That result is not dissimilar from many other cases in which the courts have dealt with antitrust attacks on peer review decisions on the merits, most recently in Manion v. Evans, 61 U.S.L.W. 2523 (6th Cir. February 26, 1993). Congress, by passage of the Health Care Quality Improvement Act (HCQIA). 42 U.S.C. § 1111 et seq., implicitly recognized the reach of the antitrust acts to peer review decisions and immunized only limited exceptions. The ASA defendants rely upon the HCQIA in their motion to dismiss, but the short answer is that plaintiff has alleged, on various grounds, that the ASA defendants are not within the immunity provided by that statute. See Summit Health, Ltd. v. Pinhas, at 1848 fn. 12. We conclude that plaintiff can proceed with her section 1 claim based upon her termination of privileges against the hospital, the ASA, and Drs. Vacanti, Blancato, Wender, Loeber, Chookaszian, Myent, and Konowitz.
Although our decision permits Vakharia to proceed with her claim under section 1, we do not think it particularly helpful to talk about a "group boycott" as a means for defining a result. Terminating privileges is not necessarily anticompetitive. Hospitals compete with each other, and the quality of medical care and lower prices resulting from lower malpractice premiums are means of competition. A commitment to quality health care may well, even in the absence of economic considerations, provide a limited justification for exclusionary decisions. See Wilk v. American Medical Association, 719 F.2d 207 (7th Cir. 1983), cert. denied, 467 U.S. 1210 (1984). We leave to another day the question of whether the decision to exclude Vakharia can be so justified.
State Law Claims Against Remaining Defendants Concerning Violation of the Hospital's Bylaws
In count IV Vakharia contends that the Hospital failed to follow its bylaws when it evaluated and dismissed her. In this court's order of May 22, 1991, we dismissed the claims contained in count IV against the individual members of the Executive Committee. We agree with defendants that count IV, despite plaintiff's amendment to it, still does not implicate those defendants. With the amendment plaintiff seeks "declaratory judgment and injunctive relief" against all of the defendants named, including the defendants who previously had won dismissal with respect to count IV. The additional language has almost no meaning, however, in the context of a claim concerning the failure to follow institutional bylaws. Beyond reinstatement of the plaintiff and expungement of certain documents from her personnel file, there is no other remedy for the Hospital's alleged conduct and, as we already have held, neither reinstatement nor expungement of records requires participation of the Executive Committee. Once again we dismiss the claims contained in count IV against the individual members of the Executive Committee.
All Title VII claims against all defendants named for the first time in the first or second amended complaints
All § 1981 claims against all defendants named for the first time in the first or second amended complaints are dismissed, except for certain of the claims against named members of the Board of Directors. The § 1981 claims against members of the Board of Directors named for the first time in the amended complaints may proceed, but only with respect to their alleged efforts to deny Vakharia the ability to form contracts with patients.
All § 1985 claims against all defendants are dismissed, except for the § 1985 claims against the Hospital, Loeber and Chookaszian. The § 1985 claims based on alleged conspiracies to violate Title VI and the EMTALA also are dismissed.
All claims under section 1 of the Sherman Act are dismissed against all defendants except the Hospital, the ASA, and Drs. Vacanti, Blancato, Wender, Loeber, Chookaszian, Myent, and Konowitz. All claims under the section 2 of Sherman Act are dismissed against all defendants.
The state law claims against the individual members of the Executive Committee are dismissed, and all claims against all "unnamed" defendants are also dismissed.
JAMES B. MORAN,
Chief Judge, U.S. District Court
March 30, 1993.