Usually when a patient sues a health care professional, the patient seeks health care services elsewhere. But that is not always the case. When the patient wishes to continue receiving services after suing a health care professional, it is not uncommon for the health care professional to wish to terminate the professional relationship. Traditionally, we have advised such health care professionals to ensure that the patient is not abandoned; the patient should receive services until he or she can find another provider for those services. A recent opinion in the U.S. District Court in the Southern Division of South Dakota shows that the question can be couched in terms of antitrust liability.
In Howes v. Yankton Medical Clinic, P.C., Connie Howes sued her late husband’s pulmonologist for negligent infliction of emotional distress, tortious interference with a business relationship, breach of contract, breach of fiduciary duty, conspiracy, unlawful tying in violation of section 1 of the Sherman Act, and monopolization of medical specialist care.
The decedent, Troy Howes, had been a patient of Dr. Alan Soosan, described by the court as a felon using an alias, who had performed unnecessary surgeries on patients. Dr. Soosan has since fled the country to Iraq. The Howes executed affidavits as witnesses against Dr. Soosan on May 16, 2014. The Soosan lawsuits against Dr. Soosan also named Dr. Michael Pietila, a pulmonologist, based on his participation in privileging decisions at Avera Sacred Heart Hospital, which had granted Dr. Soosan privileges to perform surgery despite some indications of Dr. Soosan’s inappropriate surgeries.
Troy was treated at Avera Sacred Heart Hospital in April 2015 by Dr. Pietila for sleep apnea. On May 5, 2015, Troy saw Dr. Pietila for sleep apnea at Yankton Medical Clinic, P.C. (YMC) in Yankton, SD. Dr. Pietila prescribed a BiPAP machine to assist Troy in breathing during sleep. Troy was unable to make it to a follow–up visit on August 3, 2015. Troy’s insurance carrier required such a visit to renew the order for the BiPAP machine.
Connie tried to reschedule the appointment, by YMC refused to do so. It insisted that the balance due on their account had to be paid in full, despite earlier arrangement to make small monthly payments. Troy’s Medicare and Medica coverage would have paid for the current visit. Troy died on September 22, 2015, allegedly due to the stress from his lack of access to treatment.
Other plaintiffs who later joined in the lawsuit against YMC also alleged that they were denied care at YMC due to their participation in the Soosan lawsuits.
The Opinion from the US District Court was issued in response to YMC’s motion to dismiss the antitrust claims.
- When YMC denied care to the plaintiffs, the quantity of services available to them in the relevant market (Yankton County) “was zero due to YMC’s monopoly power.” The plaintiffs were found to have antitrust standing because they alleged that YMC used its monopoly power to deny them care so that it could gain an improper advantage in the Soosan litigation.
- While an antitrust conspiracy could not be alleged to exist between Dr. Pietila and YMC, there was a third party involved: Avera. YMC claimed no control over the credentialing decisions at Avera, which were the basis for the Soosan lawsuits. So the motion to dismiss was denied on this basis, considering Avera as an unnamed coconspirator.
- Illegal tying arrangements arise when two distinct products are tied and the defendant has sufficient power in the typing product market to restrain competition in the tied product market. Despite the absence of a second tangible product, the court found an adequate allegation of tying. “Although plaintiffs were not required to purchase a product or service in order to receive care at YMC, plaintiffs had to refrain from one product—filing medical malpractice suits—in order to receive another—specialist care.”
This case urges caution in terminating a professional relationship with a patient who files a medical malpractice lawsuit. YMC would have been well advised to follow guidelines from the American Medical Association, allowing a number of weeks to allow the patient to find alternative coverage prior to terminating the relationship. Under the court’s analysis, YMC might have been required to continue care for Troy Howes when he could not find alternative pulmonology services.
Since this is an opinion in response to pre-trial proceedings, we can only guess at the facts that will prove relevant at trial. However, it might be appropriate to first ensure that alternative coverage has been secured prior to denying further services. It might also be important to consider the patient’s ability to travel and local patterns and practices for referral for specialty services outside the community, if there are no other physicians practicing the particular specialty in the local community.