The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [doc. #107] DIRECTING ENTRY OF JUDGMENT
San Diego Diagnostic Radiology Medical Group, Inc. ("SDDR"), Lee Pinckney, M.D., Lee Harvey, M.D., Patrick Carey, M.D. and Melvin Senac, M.D. (collectively "defendants") move for summary judgment. Plaintiff opposes the motion. Having considered the briefs and evidence submitted, the Court enters the following decision.
Plaintiff is a pediatric and general radiologist on staff at the University of California, San Diego Medical Center ("UCSD"). Defendant Children's Hospital ("CHSD") is a San Diego hospital dedicated exclusively to pediatric medicine. Defendant San Diego Diagnostic Radiology Medical Group, Inc. ("SDDR") provides professional radiology services for both adult and pediatric patients. Defendant Lee Pickney, M.D. is a pediatric radiologist, Chief of Staff at CHSD, and an SDDR shareholder. Defendant Lee Harvey, M.D. is a pediatric radiologist, Radiology Medical Director at CHSD, and an SDDR shareholder. Defendant Patric Carey, M.D. is a radiologist and President of SDDR. Defendant Melvin Senac, M.D. is a radiologist and an SDDR shareholder.
UCSD decided to decrease the size of its pediatric facility, and as a result, plaintiff applied for staff privileges at CHSD. On June 28, 2001, CHSD granted plaintiff privileges for general diagnostic radiology, fluoroscopy and neurosonography, but did not grant computerized tomography ("CT") and ultrasound privileges. Plaintiff alleges that the exclusion of CT and ultrasound privileges "was the professional and economic equivalent of a full denial of radiology staff privileges at [CHSD]." Complaint ¶ 28. According to plaintiff, difficult cases often require CT and ultrasound scans, and a denial of these privileges prevents a radiologist from being able to evaluate a case through its natural diagnostic progression. Id.
In August 2001, plaintiff applied for a modification of her staff privileges in order to obtain CT and ultrasound privileges. In early November 2001, plaintiff inquired as to the status of her modification application. She was told that no action had been taken, and she was asked to submit additional documentation demonstrating her competency. Between mid-November 2001 and early February 2002, plaintiff contacted CHSD staff on several occasions to ask about the status of her application, and each time CHSD requested further supporting information to supplement her original application. On February 6, 2002, CHSD informed plaintiff that her application was complete and that it would soon be rendering a decision regarding her request for CT and ultrasound privileges. Between February and April 2002, plaintiff repeatedly contacted CHSD to inquire about the status of her application and to ask for a date by which a decision would be made. On each occasion, CHSD staff informed plaintiff that her application was under review, but would not give a date by which Plaintiff could expect a decision. On April 11, 2002, after receiving another request for supporting documentation, plaintiff declined to submit further information and demanded that CHSD render a decision on her application. Plaintiff alleges that CHSD's repeated requests for supplemental information for her application, and the delay in reviewing her application once completed, were in bad faith in that these actions were intended to further a horizontal market conspiracy designed to prevent her from competing in the market.
On May 16, 2002, plaintiff brought this action in the San Diego County Superior Court. As of that date, CHSD had not reached a decision on Plaintiff's application. On June 20, 2002, CHSD informed plaintiff that it would grant her application for CT and ultrasound privileges. Defendants subsequently removed the action to this Court.
Defendants then sought dismissal of the action arguing that each of plaintiff's claims was barred by the Health Care Quality Improvement Act ("HCQIA").*fn1 Specifically, defendants contended that they were immune from liability because HCQIA protects the type of professional peer review activity that defendants undertook in reviewing plaintiff's privileges application. The Court agreed and concluded that CHSD was entitled to immunity from damages liability under HCQIA. The Court further dismissed defendants Pickney, Harvey, Carey and Senac, because as physicians who participated in or assisted the professional review body with respect to Plaintiff's CT and ultrasound privileges application, they were also shielded from liability. 42 U.S.C. § 11111(a)(1)(D). Plaintiffs appealed the dismissal to the Ninth Circuit Court of Appeals.
The Ninth Circuit reversed the dismissal finding that the case encompassed more than "straightforward professional review actions." Hilton v. Children's Hosp. of San Diego, 107 Fed. Appx. 731, 733-34 (9th Cir. 2004). Instead, the Court of Appeals concluded that the Complaint alleged that "the professional review activities were not undertaken in good faith and in the interest of good health care, but as a ruse or cover to obscure a decision already made unlawfully to exclude her from an aspect of her practice. . . . Thus, if Hilton can survive summary judgment and then prove that her treatment stemmed from an illegal Market Division Agreement, not from honest professional peer review, HCQIA immunity would not attach, and Hilton might be entitled to relief." Id.*fn2
After remand from the Ninth Circuit, Hilton filed a First Amended and Supplemental Complaint ("FAC"). (Doc. # 79). In the FAC, Hilton alleges violation of Sections 1 and 2 of the Sherman Act, and violation of the Cartwright Act against defendant SDDR. Plaintiff contends that there was a Market Division Agreement whereby SDDR agreed with UCSD that SDDR pediatric radiologists would not practice at UCSD and UCSD pediatric radiologists would not practice at Children's Hospital, (FAC ¶ 21); and a Horizontal Refusal to Deal caused by SDDR's alleged refusal to assist in the treatment of Hilton's patients. (FAC ¶ 24).
Summary Judgment Standard
Federal Rule of Civil Procedure 56 empowers the court to enter summary judgment on factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when, under the substantive governing law, it ...