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October 19, 1995

HAROLD D. JOHNSON, M.D., Plaintiff,

The opinion of the court was delivered by: LAMBERTH

 This case comes before the court on remand from the Circuit Court of Appeals for the District of Columbia. On August 17, 1990, Harold D. Johnson, M.D., an African-American obstetrician-gynecologist, filed a discrimination lawsuit in this court against Greater Southeast Community Hospital of Washington, D.C. ("Greater Southeast" or "Hospital") as well as some individually named defendants. In his complaint, Dr. Johnson set forth a number of antitrust, civil rights, and tort claims involving defendants' alleged conspiracy to terminate his Medical Staff membership and patient privileges at Greater Southeast, Johns Hopkins Health Plan ("Johns Hopkins"), United Health Services, and Columbia Hospital for Women Medical Center ("Columbia Hospital") because of his race. Complete dismissal of this case without prejudice was granted by Judge Revercomb on December 12, 1990. The court ruled that none of Dr. Johnson's claims were ripe for adjudication because Dr. Johnson had not been officially terminated by Greater Southeast. *fn1" On December 13, 1991, the D.C. Circuit reversed the dismissal and remanded the case for additional fact-finding on the issue whether plaintiff's membership and privileges had been terminated. Johnson v. Greater Southeast Community Hosp. Corp., 293 U.S. App. D.C. 1, 951 F.2d 1268, 1273 (D.C. Cir. 1991). This court was further instructed to consider plaintiff's claims in the event that they were cured of any ripeness defect. The court now addresses the issues presented on remand.



 Harold D. Johnson, M.D., is a board-certified physician who specializes in obstetrics and gynecology. His relationship with Greater Southeast Community Hospital began with his appointment to the Active Medical Staff of the Hospital in 1981. In addition to Staff membership, the appointment provided Dr. Johnson with hospital privileges that permitted him to present his patients for hospitalization and treatment at Greater Southeast. From 1981 until 1988, Dr. Johnson applied for, and was granted, reappointment to the Active Medical Staff and continued hospital privileges without limitation. In January 1989, however, the Chairman of the Hospital's Department of Obstetrics and Gynecology, Victor Nelson, M.D., reported to the Medical Staff Executive Committee ("MSEC") that he had become aware of some issues related to the quality of health care being received by Dr. Johnson's patients. The MSEC established a six-member ad hoc committee to investigate Dr. Johnson's practice.

 The MSEC completed its investigation on August 14, 1989 and concluded that Dr. Johnson should be subjected to "a severe reprimand, focused review, [and] concurrent monitoring and supervision of surgical cases for a minimum of 24 months." Johnson v. Greater Southeast Community Hosp. Corp., 903 F. Supp. 140, Memorandum Opinion ("Mem. Op.") at 4 (D.D.C. Dec. 12, 1990). Three days later, the Medical Staff President, Odell McCants, M.D., notified Dr. Johnson that the MSEC's recommendation would be reviewed by the Hospital Board of Directors, but that in the meantime, the MSEC had placed Dr. Johnson on summary suspension.

 An informal hearing before the MSEC to discuss the summary suspension issue was held on August 21, 1989. At the hearing, the MSEC asked Dr. Johnson if he would be willing to accept the MSEC's recommendation for close monitoring and supervision. Dr. Johnson indicated that he would, and signed an agreement setting forth the terms of the monitoring and supervision program on August 23, 1989. Following the signing of the agreement, the MSEC rescinded Dr. Johnson's summary suspension. After further review and approval of the MSEC's actions by both the Hospital Board of Directors and the Board's Quality Assurance Committee, the Board of Directors convened to render a final decision regarding Dr. Johnson's case on October 19 and 23, 1989. At some point during September 1989, Dr. Johnson submitted an application to Greater Southeast for reappointment to the Active Medical Staff for the 1990-91 cycle. The Hospital took no action on the reappointment application.

 During the October meetings, the Board considered two courses of action. The first option considered was to retain Dr. Johnson on the Medical Staff subject to the 24-month monitoring and supervision program. The Board, however, chose to exercise the second option of terminating Dr. Johnson's membership and medical privileges altogether. Nevertheless, Dr. Johnson was allowed to continue his practice subject to the monitoring and supervision agreement while he pursued any hearing or appeal rights pursuant to the Hospital's by-laws. On October 24, 1989, the President of the Hospital, Thomas Chapman, informed Dr. Johnson of the Board's decision to terminate his privileges, and indicated that Dr. Johnson would have forty-five days in which to request a formal hearing. Chapman also conveyed to Dr. Johnson the Board's determination that "pending your decision concerning a formal hearing, and during any hearing proceedings, your Medical Staff membership and privileges may continue under the monitoring agreement you signed on August 23, 1989." Id. at 6.

 Dr. Johnson requested a formal hearing on the matter. Kurt Darr was appointed Hearing Officer, and hearings were conducted on February 15 and 16, 1990. The hearings were scheduled to resume on March 22, 1990. On March 21, 1990, Dr. Johnson filed an action for breach of contract against Darr in the Superior Court of the District of Columbia, alleging that Darr's decision, in his capacity as Hearing Officer, to permit the Hospital to call an independent expert witness violated the Hospital's bylaws. Dr. Johnson's request for immediate injunctive relief was denied, and the hearing continued on the next day as planned. However, the case against Darr remained pending in Superior Court.

 The final day of hearings was scheduled for April 5, 1990. However, Darr notified the parties on April 4 that he would not complete the hearing until the lawsuit in Superior Court was resolved. On April 18, 1995, Dr. Johnson served each member of the Hospital Board of Directors with a brief requesting that the Board reconsider its decision to terminate his Medical Staff membership and privileges. The Board voted to refrain from making any final decision regarding Dr. Johnson's status at the Hospital until the completion of the hearings and the filing of the Hearing Officer's report.

 On May 8, 1990, the Superior Court dismissed Dr. Johnson's lawsuit against Darr as unripe. Darr nevertheless refused to continue the administrative proceedings until the parties stipulated that the proceedings were covered by the immunity provisions of the Health Care Quality Improvement Act of 1986, 42 U.S.C.A. § 11111 (1988) ("HCQIA"). Although the Hospital agreed to stipulate, Dr. Johnson refused. Darr subsequently resigned as Hearing Officer on August 2, 1990.

 Prior to Darr's formal resignation Dr. Johnson applied for reappointment to the Courtesy Staff of Columbia Hospital. As part of the reviewing procedure, Columbia Hospital requested that Greater Southeast forward copies of the patient histories at issue during Greater Southeast's investigation of Dr. Johnson's practice along with a questionnaire completed by Dr. Nelson. Dr. Johnson submitted Columbia Hospital's request to Dr. Nelson by certified mail. According to Dr. Johnson, Dr. Nelson failed to respond promptly, which resulted in the temporary suspension of his privileges at Columbia Hospital.

 On August 10, 1990, Greater Southeast contacted Dr. Johnson through counsel to determine how he wished to proceed in light of the Hearing Officer's resignation. The Hospital proposed that the existing hearing record be submitted to the Board so that the Board might make a final determination as to Dr. Johnson's status at Greater Southeast. Dr. Johnson responded by filing this lawsuit on August 17, 1990.

 In his complaint, Dr. Johnson alleged a number of antitrust, civil rights, and tort violations. *fn2" Dr. Johnson's antitrust claims are all rooted in the allegation that the Hospital and certain named defendants conspired to remove him from the existing market of obstetricians by: (1) terminating his Medical Staff membership and privileges at Greater Southeast; (2) precluding him from gaining privileges at Johns Hopkins and United Health Services; and (3) interfering with his reappointment at Columbia Hospital. Dr. Johnson maintained that these actions constituted a clear restraint on trade and commerce in inpatient obstetrical services in violation of §§ 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1988), and the comparable provisions of the District of Columbia Code, D.C. Code Ann. §§ 28-4502, 28-4503 (1981).

 Dr. Johnson also alleged a series of civil rights violations. Dr. Johnson claimed that the defendants refused to contract with him on racially neutral grounds, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 and the Civil Rights Act of 1871, 42 U.S.C. § 1985. In addition, Dr. Johnson claimed that the defendants unlawfully discriminated against him in the terms, conditions, and privileges of his employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the District of Columbia Human Rights Act, D.C. Code § 1-2512 (1981), by their refusal to grant him unrestricted Medical Staff membership and hospital privileges, and their failure to act on his 1989 reappointment application.

 Finally, Dr. Johnson claimed that Dr. Edward Hinman, the principal advocate for termination of Dr. Johnson's membership and privileges at Greater Southeast, violated the common law of the District of Columbia when he tortiously induced the Hospital to breach its appointment contract with him by terminating his Staff membership and hospital privileges.

 Defendants first moved for dismissal and, in the alternative, for summary judgment on all of Dr. Johnson's claims primarily on the grounds that the claims were not ripe for adjudication because the Hospital had not completed its administrative termination proceedings. Dr. Johnson then moved for summary judgment on the civil rights claims, arguing that the defendants had failed to meet the burden of articulating a legitimate, non-discriminatory reason that would explain their collective actions against him. The district court denied plaintiff's motion for summary judgment on his civil rights claims and granted defendant's motion to dismiss all claims based on a finding that "because plaintiff's privileges and membership at the hospital remain intact, subject to the monitoring program agreed to by the plaintiff, the plaintiff has suffered no injury which is ripe for judicial consideration at this time under either antitrust law, civil rights law, or in tort." *fn3" Mem. Op, at 10.

 Dr. Johnson appealed the dismissal of his lawsuit and the denial of his motion for partial summary judgment on the civil rights claims. The D.C. Circuit reversed this court's dismissal of Dr. Johnson's case and remanded it for additional fact-finding on the issue whether Dr. Johnson's membership and privileges were in fact terminated at the time of the appeal. The court also instructed this court to consider any of Dr. Johnson's claims that did not suffer a ripeness defect. *fn4"



 A. Ripeness: Antitrust Claims

 The Court of Appeals remanded the case to the district court for "additional fact-finding on the key jurisdictional fact of whether appellant's Medical Staff membership and privileges at the Hospital have been terminated." See Johnson, 951 F.2d at 1273. The D.C. Circuit was concerned that plaintiff's privileges, although intact at the time of the court's dismissal of plaintiff's case, might have terminated with the expiration of the monitoring and supervising agreement. "If they have, [plaintiff's] claims of injury stemming from his termination no longer suffer any ripeness defect and the court should go on to consider them on the merits." Id. (footnote omitted). The D.C. Circuit held that plaintiff's civil rights claims did not suffer any ripeness defect and instructed the court to proceed directly with consideration of these claims. However, the court reserved judgment as to the ripeness of defendant's antitrust claims. This court therefore begins with an inquiry into whether plaintiff's antitrust claims still suffer a ripeness defect.

 Questions of ripeness "go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so." Renne v. Geary, 501 U.S. 312, 316, 115 L. Ed. 2d 288, 111 S. Ct. 2331 (1991). In Abbott Lab. v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), the Supreme Court set forth a practical formula for the resolution of ripeness questions. According to the Court, questions of ripeness turn on "the fitness of the issues for judicial decisions" and "the hardship to the parties of withholding consideration." Id. at 149. The ripeness inquiry involves a balancing of the interests of the party seeking relief from an alleged or perceived injury with the court's interest in postponing review until the question arises in a more concrete fashion. Ripeness issues, by their very nature, require a subtle and subjective assessment. As the D.C. Circuit noted in Continental Airlines, Inc. v. Civil Aeronautics Bd., 173 U.S. App. D.C. 1, 522 F.2d 107 (D.C. Cir. 1975) "The law of ripeness, once a tangle of special rules and legalistic distinctions, is now very much a matter of common sense." 522 F.2d at 124. The court went on to remark: "We do not pretend that the science of assessing an issue's ripeness is an exact one." Id. at 128.

 The ripeness doctrine derives ultimately from the requirement in Article III of the United States Constitution that federal courts decide only cases and controversies. As the D.C. Circuit aptly pointed out in DKT Memorial Fund Ltd. v. Agency for Int'l Dev., 281 U.S. App. D.C. 47, 887 F.2d 275 (D.C. Cir. 1989), "'the question of ripeness goes to our subject matter jurisdiction . . . .'" 887 F.2d at 298 (quoting Duke City Lumber Co. v. Butz, 176 U.S. App. D.C. 218, 539 F.2d 220, 221 n.2 (D.C. Cir. 1976)). If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed. See S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1991). The question of ripeness is of such importance that federal courts are required to raise it sua sponte even though the parties do not. See, e.g., Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1361 (6th 1995) Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994); Acierno v. Mitchell, 6 F.3d 970, 974 (3rd Cir. 1993); Volvo N. Amer. Corp. v. Men's Int'l Prof. Tennis Council, 857 F.2d 55, 63 (2nd Cir. 1988).

 There is clear precedent for dismissal of antitrust claims on ripeness grounds. See, e.g., Unity Ventures v. Lake County, 841 F.2d 770 (7th Cir. 1987), cert. denied, 488 U.S. 891, 102 L. Ed. 2d 216, 109 S. Ct. 226 (1988); Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361 (3rd Cir. 1986); United States Steel Workers v. U.S. Steel Corp., 492 F. Supp. 1 (N.D. Ohio 1980). Furthermore, there is considerable precedent for dismissal of antitrust claims where the plaintiff has commenced a suit in federal court prior to completion of a hospital's internal peer review procedures. In Cooper v. Amster, 645 F. Supp. 46 (E.D. Pa. 1986), aff'd, 845 F.2d 1010 (3rd Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 138 (1988), a physician claimed that two hospitals and three physicians violated § 1 of the Sherman Act by failing to refer emergency patients to him. The court, in dismissing plaintiff's action for lack of jurisdiction, stated: "It is little enough to ask that plaintiff get a definitive no from the hospital before he comes to court for an injunction, treble damages, and the whole panoply of Sherman Act relief." Id. at 47. In Colorado Chiropractic Council v. Porter Memorial Hosp., 650 F. Supp. 231 (D. Colo. 1986), a group of chiropractors and several hospitals demanded $ 20 million in damages under antitrust laws for defendant's failure to grant them hospital privileges. The court dismissed plaintiff's claim as "remote and speculative and not ripe for adjudication." Id. at 236. Similarly, in Hendrix v. Poonai, 662 F.2d 719 (11th Cir. 1988), hospital officials sought a declaratory judgment that the hospital would be immune from antitrust claims if it were to deny a physician's pending application for readmission to staff membership. In affirming the district court's dismissal of the claim, the Eleventh Circuit noted that "in this case, the federal courts can become involved, if at all, only after the decision is made to deny Dr. P.V. Poonai's readmission application." Id. at 722.

 In the judgment of this court, plaintiff's antitrust claims simply are not ripe for review. Plaintiff asserts that he was injured by the termination of his hospital membership and privileges. However, there is no evidence that plaintiff's membership and privileges have in fact been terminated. It is undisputed that as of August 23, 1989, plaintiff retained his Active Medical Staff membership and full hospital privileges at Greater Southeast, subject only to administrative monitoring and supervision of his surgical cases as set forth in the agreement signed by the plaintiff on that day. It is equally undisputed that immediately before and during the arbitration hearing, Dr. Johnson retained his Medical Staff membership and privileges. Plaintiff was notified by the President of the Hospital of the Board's determination that "pending your decision concerning a formal hearing, and during any hearing proceedings, your Medical Staff membership may continue under the monitoring agreement you signed on August 23, 1989." Letter of Thomas Chapman to Plaintiff of Oct. 24, 1989 (emphasis added). Plaintiff displayed similar knowledge of his continuing privileges in his request for an arbitration hearing: "This notice is submitted with the understanding that Dr. Johnson will retain his medical privileges at the Greater Southeast Community Hospital until such time as the termination proceedings are concluded and there has been a final decision on the proposed termination." Letter from Plaintiff to Thomas Chapman of Dec. 6, 1989. The arbitration hearing in which the termination issue was being discussed stalled midstream with the resignation of the Hearing Officer, Kurt Darr. No official recommendation was made by Darr as to whether plaintiff's membership and privileges should or should not be terminated. In the absence of a definitive recommendation, the Hospital Board of Directors has refused to make a final decision to terminate Dr. Johnson's membership and privileges. It is clear, then, that plaintiff's Medical Staff membership and hospital privileges remain in effect.

 Plaintiff contends that his Staff membership and hospital privileges expired by operation of law on August 23, 1991 when the Hospital failed to grant or deny his application for reappointment to the Medical Staff within the 120-day period prescribed by D.C. Code Ann. § 32-1307(f) (1981) following the termination of the monitoring and supervision agreement. Plaintiff's argument, however, misconstrues the statutory provision. Nowhere does § 32-1307(f) indicate, let alone suggest, that a health professional's staff membership or clinical privileges automatically terminate following the expiration of the 120-day period. Section 32-1307(f) regulates appointment applications and the speed at which applications for reappointment are to be acted upon. The provision imposes on the hospital an obligation to act on an application within 120 days. To invoke § 32-1307(f), plaintiff must submit an application for reappointment and provide evidence that the hospital failed to act on the application within 120 days. Following the expiration of the 120-day period, plaintiff would be able to file suit under the statute to enforce hospital review of the pending application, and, if successful, plaintiff would be entitled to an appointment to the Medical Staff.

 Section 32-1307(f) appears wholly inapplicable to the present proceedings. The expiration of plaintiff's monitoring and supervision agreement with the hospital cannot be said to trigger § 32-1307(f). When plaintiff's monitoring and supervision agreement expired, plaintiff returned to full and unencumbered membership and privilege status. In accordance with the letter sent by the President of the Hospital, plaintiff's membership and privileges were intended to remain at this level until the termination of the administrative proceedings. The court therefore finds that plaintiff's Medical Staff membership and privileges were terminated neither by administrative proceeding nor by operation of law.

 The gravamen of Dr. Johnson's alleged injury is that he was unable to present patients for treatment at the hospital. Dr. Johnson has provided no evidence whatsoever that this ever occurred. At no point has Dr. Johnson indicated that he presented a patient for treatment that was summarily turned away from Greater Southeast. Where a physician officially retains his hospital privileges and, consequently, his ability to admit patients to the hospital, the physician cannot sustain a claim of injury based solely on the allegation that he would not be permitted to exercise his privileges if he had wished to do so. Plaintiff must do more than speculate. At a minimum, plaintiff must show some failed attempt to exercise his privileges. Dr. Johnson never presented a patient for treatment at the Greater Southeast during this period. Had Dr. Johnson done so, and been unable to secure the patient's admittance to the hospital, there is little doubt that this would constitute actionable harm. However, the court will not infer injury in the absence of such an evidentiary showing. Since plaintiff still has the ability to admit patients to the hospital, the significance of the antitrust claims in terms of actual damages or ability to prove damages evaporates. In light of plaintiff's failure to make a sufficient showing of injury, the court finds plaintiff's antitrust claims unripe for review and therefore not justiciable in federal court. Accordingly, plaintiff's antitrust claims under the Sherman Act, with respect to his Staff membership and hospital privileges as Greater Southeast, shall be dismissed for lack of jurisdiction. *fn5"

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