When a review committee questions a surgeon’s competence, he charges its members actually fear he’ll compete for patients.

 

Dr. N was a board-certified general and abdominal surgeon who had bounced around for five years after graduating from his residency program. At last, he settled down and decided to build a practice in a Northeastern community near his alma mater.

 


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A man of considerable charm, Dr. N went around and met the local referring physicians. Some of them welcomed him as a new face in a “closed shop,” referring to the close-knit group of surgeons who dominated the area.

 

While his practice built up, Dr. N worked part-time in a local emergency department. His efforts soon showed results, but the hospital’s Quality Assessment Committee (QAC), which was dominated by the Old Guard of established surgeons, terminated his privileges. That put him out of a job and all of them into federal court.

 

An investigation begins

At the end of Dr. N’s first year of practice in his new community, the QAC investigated the death of one of his patients. The case had been flagged by the hospital’s quality coordinator and sent to the committee for review.

 

While that case was pending, Dr. N had two other patients who attracted the attention of the QAC. Both had undergone an exploratory laparotomy for abdominal pain without an investigative CT scan before surgery. After reviewing the medical charts and hearing Dr. N’s account of the three cases, the QAC recommended remedial action for Dr. N, including further education, working with a mentor, and an ongoing review of his cases.

 

Two weeks later, Dr. N was involved in a new incident that brought him before the QAC once again. While attempting to insert a femoral vein catheter, he had inadvertently punctured or lacerated the femoral artery, leaving an enlarging hematoma. The patient was taken to surgery, and a vascular surgeon repaired the leak.

 

After this fourth incident, Dr. N met with the QAC physicians and the chief of surgery. They told

him he could either quit voluntarily or be suspended. Dr. N chose to resign. But later he accused two of the surgeons on the committee of engineering the QAC’s actions because they felt threatened by Dr. N’s rapidly enlarging practice. Simply put, he felt they wanted his business. Meanwhile, he left the hospital and worked at a smaller medical center in the same community while he figured out what to do.

 

A year later, Dr. N requested reinstatement. His application was denied. He appealed that decision through the channels set out in the hospital’s bylaws to no avail. Dr. N decided it was time for Plan B. He went to a plaintiff’s lawyer and asked him to file suit against the hospital for acting in “restraint of trade,” conspiring to deprive him of his privileges, and “acting in an anticompetitive manner.” The suit, which was filed in federal court, alleged violations of the Clayton Act and the Sherman Act, and alleged restraint of trade. Lawyers for the hospital reacted by asking for dismissal.

 

Both sides presented arguments and witnesses at a hearing on the motion to dismiss. A week later, the judge upheld the hospital’s decision to deny privileges and dismissed the case. He ruled that Dr. N’s lawyer had failed to offer any evidence to show restraint of trade through an anticompetitive agreement or any anticompetitive effects from actions either the hospital or its dominant surgical group took. Dr. N returned to his “interim” job in the emergency department at the other hospital.