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Sisters of Providence in Washington v. A.A. Pain Clinic12/19/2003
red.
As the United States Supreme Court has noted:
Often crimes are a matter of inference deduced from the acts of the person accused and done in pursuance of a criminal purpose. Where the conspiracy is proved, as here, from the evidence of the action taken in concert by the parties to it, it is all the more convincing proof of an intent to exercise the power of exclusion acquired through that conspiracy. The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealings or other circumstances as well as in any exchange of words.
Keeping these principles in mind, we conclude that there was evidence upon which a reasonable juror could decide defendants had an intent to harm competition. As discussed above, testimony indicated that numerous members of the Group, especially Norman, were not particularly fond of Chandler, and that some intended to put Chandler out of business; Borrello, too, was labeled by some in the Group as tainted because of his close association with Chandler. Other evidence suggested defendants' motives went beyond mere competition. Chandler's efforts to treat his patients at Providence - something he was permitted to do by the terms of the agreement - appeared at times to be frustrated by defendants' refusal to contact him. On at least one occasion hospital staff were prevented from calling Borrello to see one of Chandler's patients when it was evident that Chandler was out of town. A reasonable juror could piece together defendants' declarations with their actions and find intent to harm competition.
Appellants respond that this evidence only shows one-half of the picture, indicating at most that the Group wanted to drive Chandler out of business, and indicating nothing about Providence. They argue, " ithout evidence showing that Providence `knowingly became members of that conspiracy with the intent to further its purposes,' no conspiracy existed as a matter of law."
Unilateral conduct by a single entity is not actionable as an agreement in restraint of trade. But the Group did not act unilaterally. The exclusive contracts were bilateral, and if they caused injury to competition, an inference of intent may be drawn against Providence as well as against the Group.
The plaintiffs presented substantial evidence of harm to competition. In order to demonstrate harm to competition in an antitrust claim, a plaintiff must show proof of actual harm to competition reaching beyond mere harm to itself as a competitor. Reduced output, decreased consumer welfare, and higher prices are all relevant considerations. Unlike tort law, in antitrust law "the `reasonableness' of a restraint is judged by its general effect on the market, not by the circumstances of a particular application."
With regard to consumer welfare, or quality of care, Chandler presented evidence which, when viewed in its best light, painted the following picture. The Group often had difficulty retaining chronic pain management specialists, resulting in understaffing, which, when coupled with the exclusive, meant patients had to needlessly suffer in pain. For example, the lack of availability of physicians, sometimes only amounting to one available physician, resulted in a lack of continuity among physicians, backlogs of patients and overall delays. Other evidence suggested that the Group's pain doctors gave less priority to pain services than other forms of anesthesia. One former Providence nurse went so far as to agree that "the Group never developed the depth of staff to provide sufficient coverage for the pain service."
Evidence also suggested that medical knowledge within the Group was deficie
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