only that Dr. Angelico had equal or better mortality results in the aggregation of either of the other providers at St. Luke's or Lehigh Valley Hospitals. (Podrat Dep., 78-82, 111-112, 130-132, 235-238, 252-260). As plaintiff's expert acknowledged, however, most of the other individual cardiothoracic surgeons with whom plaintiff was competing had mortality rates at about the same level as Dr. Angelico. (Pl's Exhibits "J" and "K"; Podrat Dep., 237-238). We similarly find there to be insufficient evidence of a negative impact on price to withstand defendants' motion for summary judgment. On this point, plaintiff testified that while he believed he was a "lot cheaper" than the other cardiothoracic surgeons in the Lehigh Valley market, he does not know what he charged for his services nor is there any evidence on this record as to how plaintiff's charges compared to other surgeons' charges, including the defendant groups. (Pl's Dep., 89-90, 122-125).
Plaintiff's antitrust expert also stated that he has no knowledge either of what plaintiff or other cardiothoracic surgeons charged for their services. (Podrat Dep., 55-56, 139-142). Instead, while both plaintiff and his expert testified that the market has been harmed because he, as the lowest cost provider had been excluded, their testimony was based upon a comparison of the charges for cardiothoracic surgery levied by the defendant hospitals --not surgeons. (Pl's Dep., 127-134; Podrat Dep., 54-55, 63-65). In fact, plaintiff's expert stated that a change in Dr. Angelico's charges or prices for surgery would not have a significant impact on the market. (Podrat Dep., 141-145).
Interestingly, the record further reveals that, in reality, it is neither the hospital nor the individual surgeon but the payor (i.e., insurance company, HMO, Medicare) that determines the cost of a cardiothoracic surgical procedure and that the payment which is ultimately received by both the hospital and the physician is often dependent upon such factors as the type of insurance which a patient has, the patient's development of complications, need for additional services, the length of time spent in the hospital and the rate of reimbursement for each type of procedure set by the payor. (Pl's Dep., 90-101, 123-129; Podrat Dep., 57-62, 145-149, 167-169, 188-192).
Moreover, the evidence in this case demonstrates that, following plaintiff's departure from the Lehigh Valley cardiothoracic surgical market, while there was a slight increase in mortality rates and costs for these services between 1994 and 1996 at Easton Hospital, costs decreased at Lehigh Valley Hospital. Similarly, there was a slight increase in the mortality rate at St. Luke's Hospital during this time period, but the cardiothoracic surgical costs there decreased. (Podrat Dep., 66-73, 83-85, 138, 232-233; Pl's Exhibit "L").
Indeed, Dr. Angelico's and his expert's own testimony and the evidence produced demonstrate that the market was not harmed by plaintiff's departure. Based upon this record, this Court therefore cannot find that plaintiff suffered the type of injury that the antitrust laws were designed to prevent nor can we find that Dr. Angelico is the most efficient enforcer of those laws. See, In Re Lake Erie, and Huhta, both supra. We are therefore forced to conclude that plaintiff does not possess the requisite standing necessary to pursue his antitrust claims. Defendants' motion for summary judgment shall therefore be granted. Plaintiff's remaining claims are state law claims over which we decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3). Accordingly, this action shall be dismissed in its entirety.
An appropriate order follows.
AND NOW, this 28th day of October, 1997, upon consideration of Defendants' Motion for Summary Judgment and Plaintiff's Response thereto, it is hereby ORDERED that, for the reasons set forth in the foregoing Memorandum, Defendants' Motion is GRANTED and this action is DISMISSED.
BY THE COURT:
J. CURTIS JOYNER, J.