United States District Court, M.D. Pennsylvania
SUZAN MCGARY, M.D., Plaintiff.
WILLIAMSPORT REGIONAL MEDICAL CENTER, et al., Defendants.
Arbuckle, Magistrate Judge.
Matthew W. Brann, United States District Judge.
moved for summary judgment on all counts of Plaintiff's
Amended Complaint. For the reasons that follow, that motion
will be granted.
Suzan McGary, M.D., performed cardiothoracic surgery at the
Williamsport Regional Medical Center (“WRMC”)
from 1999 through 2007. In January 2012, after several years
practicing elsewhere, Dr. McGary sought to return to WRMC,
and applied for privileges there.
time, WRMC's credentialing policy required cardiothoracic
surgeon applicants to have performed at least 100 heart
surgeries and 100 lung surgeries during the past
year. In the year preceding her application,
however, Dr. McGary had performed only 37 heart surgeries and
15 lung surgeries. Her application was denied.
August 31, 2012, Dr. McGary initiated the above-captioned
action against WRMC, the Susquehanna Health System
(“SHS”), George Manchester, M.D., Scott Croll,
M.D., John Burks, M.D., and Mark A. Osevala,
Her Amended Complaint alleges that WRMC's conduct
surrounding the rejection of her privileges application: (1)
violated Sections 1 and 2 of the Sherman Act, (2) breached a
contract of which she was the intended beneficiary; (3)
interfered with her prospective contractual relationships;
and (4) amounted to a conspiracy in restraint of
moved for summary judgment on September 26,
2016.Magistrate Judge William I. Arbuckle issued
a Report and Recommendation (“R&R”)
recommending that this Court grant that motion in part and
deny it in part. Both parties, however, have objected to
Standard of Review
judgment is granted when “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of
law.” A dispute is “genuine if a
reasonable trier-of-fact could find in favor of the
non-movant, ” and “material if it could affect
the outcome of the case.” To defeat a motion for
summary judgment, then, the nonmoving party must point to
evidence in the record that would allow a jury to rule in
that party's favor. When deciding whether to grant
summary judgment, a court should draw all reasonable
inferences in favor of the non-moving party.
Court has the authority to refer summary judgment motions to
magistrate judges for dispositional
recommendations. If a party objects to any portion of
such a “Report and Recommendation, ” this Court
must review that portion de novo.
Whether the Defendants Are Capable of Conspiring Amongst
Judge Arbuckle recommended that this Court grant summary
judgment to the Defendants on three of Dr. McGary's
claims-i.e., (1) her claim under § 1 of the
Sherman Act, (2) her conspiracy to monopolize claim under
§ 2 of the Sherman Act, and (3) her civil conspiracy
claim-because he concluded that the Defendants are legally
incapable of conspiring amongst themselves. Dr. McGary
objected to this conclusion.
prevail on any of the conspiracy claims at issue, Dr. McGary
must show an agreement between two or more individuals or
entities. The law is clear, however, that such
agreement must be between individuals or entities operating
in their individual capacities, and not as agents of their
a nonprofit corporation located in Williamsport,
Pennsylvania; its Chief Medical Officer is Dr.
Manchester. SHS owns WRMC, as well as non-party
Susquehanna Physician Services
(“SPS”). SPS, in turn, employs Dr. Croll (as a
general surgeon), Dr. Burks (as a cardiologist), and Dr.
Osevala (as a cardiothoracic surgeon). Because of
the parent-subsidiary relationship between SHS and WRMC, and
because all the individual physician defendants are employed
by SHS or one of its subsidiaries, Magistrate Judge Arbuckle
determined that “there [was] no combination of
independent entities” capable of engaging in concerted
action of the sort that creates liability under the Sherman
Act or state conspiracy law.
McGary objects to this recommendation. She notes that Dr.
Osevala's compensation from SPS is partially
performance-based-i.e., he may receive more money by
bringing more revenue into the hospital-and believes that his
purpose in excluding her from WRMC was to prevent her from
reducing his own patient load (and paycheck). Therefore, she
argues, while all the Defendants are looking out for the
hospital's bottom line, Dr. Osevala is simultaneously
seeking to boost his own; consequently, Dr. Osevala and the
other Defendants are “separate economic actors pursuing
separate economic interests.”
whether parties are legally capable of conspiring requires
“a functional consideration of how the parties involved
in the alleged anticompetitive conduct actually
operate.” It is true that Dr. Osevala's
employment agreement contained an “incentive
bonus” provision. It is also true, however, that Dr.
Osevala never qualified for that bonus, and was instead just
paid his flat, regular salary. Moreover, even if he had
qualified for such a bonus, that would simply show that Dr.
Osevala was successful in bringing business to the
hospital-i.e., that he was successful, as a hospital
employee, in furthering the hospital's economic
interest. The parties, then, are, as a matter of
law, “a single economic entity for purposes of
antitrust analysis, ” and cannot legally conspire.
Therefore, summary judgment on the conspiracy claims will be
entered in favor of Defendants.
Whether Defendants Have Willfully Acquired Or Maintained
prevail on her monopolization claim under § 2 of the
Sherman Act, Dr. McGary must show the “willful
acquisition or maintenance of [monopoly]
power”-i.e., they must show that Defendants
engaged in “anticompetitive
conduct.” It is well-established, however, that
“[c]onduct that merely harms competitors, . . . while
not harming the competitive process itself, is not
McGary argues that Defendants have maintained monopoly power
by “rely[ing] on onerous and outdated surgical number
standards as a pretextual reason for denying surgical
privileges.” Unfortunately, she points to no evidence
in support of this argument. To the contrary, it appears
that, since May 1, 2007, at least seven doctors met the
hospital's 100-surgery criteria and, consequently, gained
surgical privileges there. During that time period, in
fact, Dr. McGary was the only applicant who was
Dr. McGary has failed to demonstrate conduct that harms
competition-and has, instead, only shown conduct that harms
herself, a competitor-summary judgment on this claim will be
granted in favor of Defendants.
Whether Defendants Had the Specific Intent to
prevail on her attempted monopolization claim under § 2
of the Sherman Act, Dr. McGary must prove that Defendants had
the “specific intent to monopolize the ...