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Sisters of Providence in Washington v. A.A. Pain Clinic12/19/2003
nt: for extended periods certain pain management procedures, such as implantable pumps, were outside the realm of expertise of any of the Group's physicians. One doctor testified that Chandler had a very good set-up for implantable pumps and that he saw no reason why Chandler's practice should be restricted. A former pain service clinician from Providence testified: "People that needed further [pain treatment beyond steroid injections], I don't think that we have served their needs." Despite its purported inability to fully serve patients' needs, the Group and Providence continued to enforce the exclusive agreement. One nurse testified that she would have referred patients to Chandler and Borrello had she been allowed because it would have helped alleviate many of the understaffing and quality control problems Providence was experiencing.
Chandler presented other evidence suggesting that the Group "dumped" unprofitable patients, thereby decreasing consumer welfare and creating market barriers by saturating competitors with low-paying patients. One physician testified that his superiors instructed him to dump Medicare and Medicaid patients "by being too busy to see them." Chandler observed the effects on his own practice: the Group would neglect to follow up on cases when they became less profitable, and these patients would end up at Chandler's practice for the less-profitable reevaluations.
Other evidence suggested that the Group's activities manipulated prices by "unbundling" procedures, making them more expensive and possibly less effective for patients. Unbundling can be described as the separation of a medical procedure into its parts, i.e., a number of separately billed sub-procedures which, in their totality, incur a greater total charge then if all were billed as one procedure. Witnesses testified that one physician within the Group, Dr. Davy, proposed that a certain pain treatment be applied post-operatively so that he could charge more for it as a separate procedure. Though some objected that the proposal was not good patient care, at least one physician remembers his superiors "stat that that would be the policy from that point forward." One pain service clinician was told that doing the procedure post-operatively meant the patient could be billed additionally; on ten or more occasions she observed Davy or another doctor performing the procedure post-operatively. Other testimony suggested that others also were aware of this practice.
In an effort to demonstrate a decrease in consumer welfare, Chandler refers to problems experienced by specific patients. Appellants counter that Chandler's anecdotal evidence fails to establish a baseline standard of care. Appellants' argument would be sound were Chandler solely relying on the stories of three out of several thousand patients; we note again that antitrust law considers general effects on the market rather than particular applications. But here, a former Group doctor testified that, in his opinion, the exclusive contracts reduced choices to patients without any added benefit. Furthermore, as discussed above, Chandler presented evidence of serious understaffing in the Group. Chandler also presented relevant testimony demonstrating that one or more members of the Group were motivated more by profit concerns than with patients' pain. It is with this evidence in mind that the three patients' stories might be of use to a juror as illustrative of the adverse consequences of the Group's exclusive contract with Providence.
In summary, we conclude that the evidence was sufficient to satisfy each element of Chandler's restraint of trade claim.
Appeal Issue 4 Was the evidence sufficient to warrant an award of
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