Medical Center Alleges Sherman Act Violation by Surgeons Refusing On Call Duty
Charleston Area Medical Center, Inc. filed a complaint on December 28, 2005 in the U.S. District Court for the Southern District of West Virginia against Thoracic & Cardiovascular Associates, Inc., six cardiovascular surgeons affiliated with TCA and one cardiovascular surgeon who is not affiliated with TCA. CAMC alleged that the Defendants violated Section 1 of the Sherman Act by: (1) agreeing to fix the price at which Defendants will serve on cardiovascular trauma emergency call, (2) agreeing to restrain price competition for on call services and (3) participating in a concerted refusal to be on call unless CAMC agreed to a certain price for such services. CAMC asserted that TCA is not, or may not be, an economically integrated unit, and that Defendants constitute substantially all of the relevant surgeons in the market subject to on call duties. CAMC requested declaratory and injunctive relief, and monetary damages.
The on call duties that are the subject of the case consist of the obligations to remain available to consult with CAMC's Trauma Center by telephone and, if necessary, to treat a patient in person at the Trauma Center. According to the Complaint, each individual Defendant demanded a $2,000 fee for each day that he is on call. CAMC refused their demands, citing (1) the fact that being on call is a condition of each individual Defendant's appointment to the CAMC's Medical Staff, (2) their determination that the demanded $2,000 fee for being on call [for cardiovascular trauma emergency services] is greater than fair market value for such a service, (3) the allegedly excessive on call fee violates the federal anti-kickback statute, and (4) the allegedly excessive on call fee violates the federal Ethics in Patient Referral Act.
The Complaint further alleged that in December of 2005, CAMC refused to sign "substantially identical written agreements," proferred by the TCA office manager for the six Defendants affiliated with TCA. These agreements would have provided to each of the six Defendants the $2,000 per day fee for being on call. In response to CMAC's refusal, the TCA office manager allegedly immediately produced six "substantially identical letters" signed by those Defendants stating their refusal to be on call or provide services to trauma patients at CMAC's Trauma Center. The seventh Defendant not affiliated with TCA allegedly presented a "substantially identical" agreement and letter the next day, upon advice from joint counsel retained by the Defendants.
This case is noteworthy in light of similar discussions that are occurring throughout the country between hospitals and members of their medical staffs required to take Emergency Department call.
A copy of the Complaint is located at this link.
For additional information about this Antitrust Development, please contact Toby G. Singer, leader of the Health Care Antitrust Practice.