case. The original premise of the claim was that Dr. Simmons, who initiated the request for corrective action, had been a participant at the Howard University meeting and that the Howard meeting had been an irregular, unauthorized, conspiratorial gathering of surgeons in economic competition with Dr. Canady. None of that was proven. Dr. Simmons was not at the Howard meeting, and, except for establishing that the doctors who attended the Howard meeting were all vascular or thoracic surgeons, there was no effort to prove that any of them were in direct economic competition with any others. Nor did plaintiff attempt to prove any connection between the July 1993 meeting and any of the facts, peculiar to Providence Hospital, that were developed at the trial.
3. Bolt v. Halifax Medical Hospital Medical Center, 891 F.2d 810 (11th Cir. 1990), and Boczar v. Manatee Hospitals & Health Systems, Inc., 993 F.2d 1514 (11th Cir. 1993), upon which plaintiff relied, were both tried as antitrust cases. They are factually distinguishable and inapposite. Here plaintiff demonstrated no effect on competition, either from the alleged denial of vascular and thoracic privileges or from the suspension of his general surgery privileges. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977). Nor did plaintiff even begin to prove the existence of an antitrust conspiracy. See Okusami v. Psychiatric Institute of Washington, Inc., 295 U.S. App. D.C. 58, 959 F.2d 1062, 1064-66 (D.C. Cir. 1992); Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 81 L. Ed. 2d 628, 104 S. Ct. 2731 (1984); Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705 (4th Cir. 1991) (en banc). Nor did plaintiff prove that the defendant's possessed monopoly power or a dangerous probability of obtaining monopoly power, necessary elements of section 2 monopolization claim, see, e.g., U.S. v. E.I. duPont de Nemours & Co., 351 U.S. 377, 100 L. Ed. 1264, 76 S. Ct. 994 (1956).
4. Related to plaintiff's Sherman Act claim, because it is a claim of economic misbehavior, is plaintiff's allegation (Third Amended Complaint P 61) of a violation of D.C. Code § 32-1307(b)(6), which provides that a physician's willingness to send a certain number of patients to a particular hospital is not a valid factor for consideration in the determination of that physician's qualifications for staff membership or clinical privileges. Plaintiff did prove that Providence was upset following his transfer of two patients to Howard and a third to Georgetown, but no connection was proven -- and none is or can reasonably be inferred -- between the economic aspects of those decisions and the hospital's decisions to grant, withhold, suspend, or revoke Dr. Canady's privileges. It is clear from this record that the hospital's concern was with the medical appropriateness of transferring unstable patients; with the volatile, hostile and uncooperative way in which Dr. Canady dealt with the hospital staff; and with its perception that Dr. Canady was improperly transferring patients in order to escape Providence Hospital's appropriate medical oversight.
5. Upon further review of the record, plaintiff having proven no conspiracy and no effect on competition, and indeed having proven no economic motive or effect whatever of the acts of the defendants that he claims were unlawful, the dismissal at of plaintiff's Sherman Act claim, and of that portion of Count I that was premised on a violation of D.C. Code § 32-1307(b)(6), is confirmed.
Breach of Contract Claim
6. The claim of breach of contract asserts that the Bylaws, Rules and Regulations of the Medical-Dental Staff were contractual in nature and that the hospital's "de facto suspension, subsequent summary suspension and revocation of Dr. Canady's clinical privileges constitutes a breach of its contract with Dr. Canady." Third Amended Complaint P 78.
7. Plaintiff has not sustained his burden of establishing that he made a completed application for thoracic or vascular or advanced laparoscopic privileges. His written application specified the privileges he was seeking only by checking off boxes on the privilege control list. Neither the boxes he checked nor the procedures he named in the blanks labeled "other" were thoracic, vascular or advanced laparoscopic surgical procedures. The written record of the hospital's action on this application was approval of Dr. Canady for general surgery and a note that he would "submit documented cases -- thoracic and vascular surgery." Plaintiff's oral statements to Drs. Sanzaro and Simmons that he would like to do thoracic, vascular and advanced laparoscopic procedures and his submission of an operative experience form showing only the numbers of named procedures he had done, did not amount to a completed application that Providence Hospital was obliged either to grant or deny -- especially in view of Article VI, § 1(B) of the bylaws, which plainly provides that "the burden of establishing qualifications [for clinical privileges] shall be on the applicant."
8. Plaintiff's counsel advanced the specific argument at trial that the bylaws required notice to Dr. Canady by registered mail, return receipt requested, that his request for clinical privileges had been denied. His reference apparently was to Article V, § 2(E) of the bylaws, dealing with procedures for appointment and reappointment:
"when the recommendation of the Executive Committee is adverse to the practitioner . . . either in respect to appointment or to clinical privileges, the President shall promptly notify the practitioner or allied health professional of such adverse recommendation by certified mail, return receipt requested."
Because plaintiff did not make a completed application, however, Providence Hospital did not make a decision adverse to the practitioner within the meaning of Article V, § 2(E). Accordingly, it had no obligation to notify Dr. Canady by certified mail, return receipt requested.
9. The above conclusions also dispose of plaintiff's claim of a violation of D.C. Code § 32-1307(f), which provides
"whenever a health professional submits a completed application for staff membership or clinical privileges to a facility or agency, that facility or agency shall have 120 calendar days to grant or deny the application." (emphasis added.)