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September 25, 1981

Malcolm WEISS, et al., Plaintiffs,
YORK HOSPITAL, et al., Defendants

The opinion of the court was delivered by: MUIR

This action is presently before the Court on the Defendants' motion for summary judgment filed June 1, 1981, and supported by a memorandum of law, exhibits, and affidavits. The motion was opposed by a brief of the Plaintiffs accompanied by exhibits and affidavits filed June 23, 1981, to which the Defendants replied on July 7, 1981.

This is an action brought under §§ 1 and 2 of the Sherman Antitrust Act of 1890 *fn1" and Sections 4 and 16 of the Clayton Act of 1914, *fn2" 15 U.S.C. §§ 1, 2, 15, and 26, and pursuant to the common law of Pennsylvania in which the Plaintiff, a Doctor of Osteopathy, alleges that the Defendants have individually and collectively prevented him and other osteopaths from gaining staff privileges at York Hospital solely because the Plaintiff and members of the Plaintiff class are Doctors of Osteopathy. Dr. Weiss also contends that the Defendants have monopolized the health care services and facilities within the relevant market area to the Plaintiff's detriment. The procedural history of this case will not be set forth at length; it is sufficient for the purposes of the present opinion to note that on May 28, 1981, following a hearing on the matter, Plaintiff's motion for class certification was granted and a class consisting of all osteopathic physicians within the relevant market area was certified and that this matter was scheduled to be tried during August 1981. Although a jury was drawn, the trial was aborted by an appeal on the eve of trial on a discovery point crucial in this Court's view to the trial and the trial was stayed pending action by the Court of Appeals.

 I. Defendants' Evidence.

 An analysis of the merits of the pending motion must begin with the examination of the affidavits and other exhibits submitted in support of the motion because "the judgment sought shall be rendered forthwith 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); Abdallah v. Caribbean Security Agency, 557 F.2d 61 (3d Cir. 1977); Scott v. Plante, 532 F.2d 939, 945 (3d Cir. 1976); Goodman v. Mead, Johnson and Company, 534 F.2d 566 (3d Cir.), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1976).

 The documents filed in support of the Defendants' motion fall generally into two categories consisting of (1) the affidavits of each individual Defendant and of the representatives of the corporate defendant and (2) documentation concerning the rejection of Dr. Weiss's application for staff privileges at York Hospital. The affidavits by individual Defendants, all Doctors of Medicine, associated with York Hospital, are identical. Likewise, the affidavits of the individual members of the Board of Directors of York Hospital (16 in number) are identical to one another. Only the affidavit of Merle Bacastow, M.D., Vice President of Medical Affairs for York Hospital, is unique and need be addressed at any length.

 The affidavits of Drs. Ardison, Bauer, Butler, Kline, and Kushner, establish that each was a member of the Executive Committee of York Hospital in 1977 and 1978 when Dr. Weiss's applications for staff privileges were received and acted upon. Each doctor's affidavit states that the vote cast by the affiant in the decisions whether to grant Dr. Weiss staff privileges was accomplished without regard for, or consideration of, the fact that Dr. Weiss was not an allopathic physician and further, that during the 1977 and 1978 discussions of Dr. Weiss's applications, the Executive Committee members did not discuss the fact that Dr. Weiss is an osteopathic physician. Finally, each affidavit states that the statement of reasons for the denial of application for medical staff privileges of Dr. Weiss with which he was provided correctly sets forth the basis upon which the committee determined on April 19, 1978 to recommend denial of Dr. Weiss's application.

 The last group of affidavits, executed by each individual member of the Board of Directors of York Hospital, states that the affiant participated in the decision on March 13, 1979 to deny Dr. Weiss staff privileges, and that the fact that Dr. Weiss was an osteopathic physician did not enter into the affiant's decision concerning Dr. Weiss's application.

 In his affidavit, Dr. Merle Bacastow states that he has been Vice-President for Medical Affairs of York Hospital since May of 1972 and, as such, his duties have included the supplying of York Hospital Medical Staff application forms to physicians requesting them, the receiving of completed application forms by physicians seeking York staff privileges, and the administrative processing of those applications. In connection with such applications, Dr. Bacastow states that he maintains separate files on each application, solicits relevant background and reference information on the applicants, and assists the Staff Credential Committees, the Staff Executive Committee, and the York Hospital Board of Directors in making the applicants' files available for their reviews, recommendations, and ultimate decisions. Dr. Bacastow describes the staff privilege application procedure as follows:

Once an application is received and background and reference information gathered, (1) an evaluation of the application is made by the chairman of the hospital department in which the applicant seeks privileges. In some instances, such as the family practice department, the department chairman selects a departmental credentials committee to assist him in the formulation of an evaluation (of the applicant). (2) Upon its review of the application, the Staff Credentials Committee makes its recommendation to the Staff Executive Committee. (3) The Staff Executive Committee, upon receipt by it of the recommendation by the Staff Credentials Committee, independently reviews the application in light of the Credentials Committee recommendation. The Executive Committee then forms its recommendation and forwards that information to the hospital's Board of Directors. (4) The Board of Directors routinely refers the application to its Medical Affairs Committee which is composed of representatives of the hospital administration, the staff executive committee, and the Board of Directors, and is chaired by a member of the Board of Directors. The Medical Affairs Committee usually recommends a disposition of the application. (5) After consideration by its Medical Affairs Committee, the Board of Directors has complete, plenary authority to decide whether to accept or reject an application.

 During the application review procedures described, any committee to which the application is referred may request further information concerning the applicant either from the applicant or another source. Bacastow states that since May of 1972 only four osteopathic physicians have applied for membership on the York Staff and that of the four, Plaintiff Weiss is the only applicant to be denied staff privileges. Two osteopaths, Michael A. Zittle and Kenneth E. Yinger, were granted staff privileges on June 30, 1977 and December 30, 1980, respectively. One of the four applications by osteopathic physicians for membership on the York Hospital staff made since May 1972 is pending, awaiting supplemental information previously requested from the applicant.

 The bulk of the remainder of Dr. Bacastow's affidavit is concerned with the identification and authentication of the exhibits to the doctor's affidavit. It should be noted that among the exhibits to Dr. Bacastow's affidavit are all but two of the exhibits filed by Defendants in support of the motion under separate cover and which have earlier been referred to in this opinion as the second category of documents in support of the motion. These exhibits consist primarily of letters and other memoranda received or prepared by the Defendants in this action in connection with Dr. Weiss's application for staff privileges.

 II. Plaintiff's Documents.

 Plaintiff's evidence in opposition to the motion consists of many of the same documents submitted by Defendants, as well as minutes of various hospital committee meetings, proposed revisions of hospital by-laws, and ...

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