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September 12, 1978

John N. ROBINSON, Plaintiff,
George J. MAGOVERN, Cardiothoracic Surgical Associates, Inc., Allegheny General Hospital, and Henry G. Allyn, Jr., Gay E. Bodick, Fred Brand, Jr., Henry Chalfant, Ronald R. Davenport, Harry Edelman, III, Harry M. Epstein, William H. Genge, W. R. Krome George, R. Burt Gookin, Thomas C. Graham, Kenneth C. Hewitt, John A. Huffman, Jr., B. F. Jones, III, Bernard H. Jones, Caryl M. Kline, Richard K. Means, Francis B. Nimick, David B. Oliver, II, Robert B. Pease, G. Harton Singer, III, Elizabeth A. Smith, W. P. Snyder, III, Leonard A. Swanson, W. Bruce Thomas and Paul H. Weyrauch, Individually and as Trustees of Allegheny General Hospital, Defendants

The opinion of the court was delivered by: SNYDER

Suit was brought by Dr. John N. Robinson for denial of staff privileges against Dr. George J. Magovern, Director of the Department of Surgery and Chief of Thoracic Surgery at Allegheny General Hospital; Cardiothoracic Surgical Associates, Inc. (CTSA), a professional corporation of physicians specializing in cardiothoracic surgery; Allegheny General Hospital (AGH) and its Trustees, individually and as Trustees. Dr. Robinson alleges:

1. Anti-trust violations of Sections 1 and 2 of the Sherman Act 15 U.S.C. §§ 1 and 2 (Count I), alleging agreement that only CTSA members would receive staff privileges at AGH;

 2. Violations of the Fifth and Fourteenth Amendments of the United States Constitution and Section 1983 of Title 42, United States Code, with jurisdiction conferred by Section 1343 and Section 1331 of Title 28, United States Code (Count II), alleging a denial of equal protection;

 3. A third party beneficiary right of action for failure to comply with the provisions of the Medicare Act requiring compliance with regulations promulgated by the Secretary of Health, Education and Welfare, 42 U.S.C. § 1395 (Count III);

 4. A pendent state breach of contract claim (Count IV);

 5. A pendent state claim for tortious interference with Dr. Robinson's right to freely practice his profession, with damage to his reputation (Count V); and

 6. A pendent state claim of conspiracy in restraint of trade in violation of state law (Count VI).

 Defendants Magovern and CTSA filed Motions for Summary Judgment and Defendants AGH and its Trustees filed Motions to Dismiss supported by affidavits, which will be treated as Motions for Summary Judgment. Interrogatories were propounded and answered, depositions were taken, and briefs received. After consideration of all the record and argument thereon, the Motions will be granted in part and denied in part.


 Thereafter, with the assistance of counsel, Dr. Robinson obtained and submitted an application for membership to the AGH Medical Staff. Dr. Magovern reviewed the application and, without cause, recommended denial of the application to the Credentials Committee of the Medical Staff. Subsequently, the Credentials Committee recommended that Dr. Robinson's application be denied. After a hearing held in accordance with the Medical Staff By-Laws, the Executive Committee of the Medical Staff recommended to AGH's Board of Trustees that Dr. Robinson's application be denied. The Board of Trustees declined to appoint Dr. Robinson to the Medical Staff. All actions were based on Dr. Magovern's negative recommendation.

 The Defendants join in their Motions for Summary Judgment contending with respect to the first three counts of the Complaint:

Count 1. That no proper action has been set forth for relief under the anti-trust laws.
Count 2. That no "state action" has been set forth as a basis for civil rights relief.
Count 3. That Dr. Robinson has no third party cause of action arising from any agreement between AGH and an agency of the federal government.

 As to the last three pendent counts, Counts IV through VI, the Defendants contend that when the first three counts are dismissed, the last three must also be dismissed for there are no independent grounds for federal jurisdiction.

 Dr. Robinson contends as to Count I, that

"Dr. Magovern's veto meant that (Dr. Robinson's) application was De facto rejected. True, the veto was followed by some procedural window dressing, including a hearing, but for all intents and purposes his application had not the slightest chance of being approved . . . . AGH is a closed shop. Dr. Magovern knows it and the Hospital knows it. Become a member of CTSA, and AGH staff membership is assured." (Plaintiff's Brief at 12-13)

 All of this, says Dr. Robinson, is a Per se anti-trust violation as a group boycott (i. e., concerted refusal to deal) or an unreasonable restraint of trade, and the agreement between AGH and CTSA is a reciprocal dealing agreement of referral to each other when cardiothoracic surgical procedures are indicated.

 As to Count II, Dr. Robinson contends that AGH was acting as an arm of the state because of state involvement in AGH and that he was rejected because he was an economic threat to Dr. Magovern and CTSA, so that he was never afforded due process on his application when he was refused because he was not a CTSA member, and that he was treated differently and denied equal protection of the laws.

 As to Count III, Dr. Robinson sets forth that the Medicare Program requires selection of medical staff on defined criteria, including that applicants be judged on "definite workable standards", 20 C.F.R. § 405.1023(e)(1). Having failed to comply, although having accepted medical benefits, AGH has breached its contract with the Social Security Administration (SSA), and ...

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