Patients Denied Care|Have Antitrust Claims

YANKTON, S.D. (CN) — Patients who were denied care at a South Dakota clinic because they were plaintiffs in medical malpractice lawsuits may have valid antitrust claims, a federal judge ruled Wednesday.

Connie Howes sued the Yankton Medical Clinic and one of its pulmonologists, Dr. Michael Pietila, after her husband died of respiratory complications in September 2015.

Howes claimed the clinic denied her husband care because in May 2014, she and her husband filed witness affidavits in a lawsuit against the clinic, Pietila, and Dr. Alan Soosan, a felon who used an alias to obtain surgical privileges at Yankton's facilities.

Thirty-nine lawsuits have been filed against Soosan in South Dakota's state and federal courts, for performing unnecessary spinal surgeries, sometimes with disastrous results. Soosan is believed to have fled the barrage of lawsuits by returning to Iran, his native country.

Pietila was named as a defendant in 12 of the lawsuits because he serves on the Avera Sacred Heart Hospital's executive board, which grants surgical privileges to doctors practicing in Yankton.

In August 2015, the Yankton Medical Clinic terminated treatment of all patients who had been involved in lawsuits against it or any of its providers.

Howes says this precipitated the deterioration of her husband's condition and led to his death, since his insurance company required an ongoing relationship with a doctor to continue covering his BiPAP machine, which helped him breathe in his sleep.

Howes called the denial of care an "intimidation tactic" by the clinic, which is the only provider of specialty medical services in the area. To see another pulmonologist, Howes would have had to travel 60 to 80 miles to Sioux City, Iowa; Norfolk, Neb.; or Sioux Falls, S.D.

Because the Yankton Medical Clinic has a monopoly on specialist care in Yankton County, its refusal to treat patients involved in the Soosan lawsuits could violate federal antitrust laws, U.S. District Judge Karen Schreier ruled on Wednesday.

"Plaintiffs have antitrust standing because they have alleged that YMC used its monopoly power to deny them care so it could gain an improper advantage in the Soosan litigation," Schreier wrote in a 12-page order. "The damages are concrete and directly related to the restraint. Because plaintiffs have suffered an antitrust injury, plaintiffs have standing to bring their claim."

Schreier also found that Howes sufficiently showed that the clinic's actions affected interstate commerce, because four Nebraska residents who were similarly denied care at Yankton plan to join the lawsuit, and because the facility accepts Medicare funding.

Schreier denied the clinic's motion to dismiss.

"Plaintiffs have pleaded adequately the interstate commerce element," she wrote. "Additionally, plaintiffs allege that two distinct products are tied: the medical specialist market and the medical malpractice market. Although plaintiffs were not required to purchase a product or service in order to receive care at YMC, plaintiffs had to refrain from one product — filing medical malpractice suits — in order to receive another — specialist care."

Howes is represented by Michael Bornitz and other attorneys with the Cutler law firm.

The clinic and Pietila are represented by Mark Haigh with Evans, Haigh & Hinton.

Neither parties' attorneys responded to email or voicemail requests for comment.

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