The Tenth Circuit's recent dismissal of Section 2 monopolization and attempted monopolization claims in Four Corners Nephrology Associates, P.C. v. Mercy Medical Center of Durango, -- F.3d ---, 2009 WL 3085882 (10th Cir. Sep. 29, 2009), relied extensively on the Supreme Court's Linkline and Trinko decisions to hold that: (1) a hospital's refusal to allow a physician access to its nephrology facilities does not constitute anticompetitive conduct under Section 2 of the Sherman Act; and (2) the refusal does not constitute an injury of the type the antitrust laws were intended to prevent.
Four Corners involved efforts by a non-profit hospital defendant, Mercy Medical, to establish the hospital's first nephrology practice in Durango, Colorado. Before Mercy's endeavors, the nearest nephrology services were those provided by the plaintiff, Dr. Bevan, in New Mexico, a three-hour round trip for Durango residents. Although Dr. Bevan held consulting privileges at Mercy, the last time he had actually exercised those privileges was back in 1995. After repeated, unsuccessful attempts to persuade Dr. Bevan to establish a practice in Durango, Mercy managed to recruit another nephrologist. Once the new nephrologist was recruited, Dr. Bevan's consulting privileges at Mercy were automatically terminated pursuant to the hospital's bylaws. Upon learning of the termination, Dr. Bevan then sought to be granted full privileges at Mercy, on par with the newly-recruited nephrologist, despite having declined previous invitations from Mercy. When Mercy rejected Dr. Bevan's request and deemed its newly-recruited neprologist the sole provider of nephrology services at Mercy, Dr. Bevan brought suit, alleging that Mercy's actions amounted to an unlawful monopolization and/or attempted monopolization of the market for nephrology services in the Durango area.
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