Levine v. Central Florida Medical Affiliates, Inc.

United States Court of Appeals,

Eleventh Circuit.

No. 94-3145.

Scott D. LEVINE, M.D., Plaintiff-Appellant,

v.

CENTRAL FLORIDA MEDICAL AFFILIATES, INC.; Healthchoice, Inc.;
Sand Lake Hospital; Orlando Regional Healthcare System, Inc. f/k/a
Orlando Regional Medical Center, Defendants-Appellees.

Jan. 23, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 93-153-CIV-ORL-22), Anne C. Conway,
Judge.

Before ANDERSON and CARNES, Circuit Judges, and OWENS*, Senior
District Judge.

CARNES, Circuit Judge:

Dr. Scott Levine, the plaintiff, appeals from the district

court's grant of summary judgment in favor of the defendants on his

state and federal antitrust claims. The four defendants are

Healthchoice, Inc., a preferred provider organization ("PPO");

Central Florida Medical Affiliates, Inc. ("CFMA"), a physicians

advocacy group organized to supply physician providers to the

Healthchoice PPO; Sand Lake Hospital; and Orlando Regional

Healthcare System, Inc. ("ORHS"), the hospital's parent

corporation. The incidents giving rise to the lawsuit are Dr.

Levine's unsuccessful attempt to gain provider membership in

Healthchoice and CFMA, and the temporary suspension of his staff

privileges at Sand Lake Hospital. Because we conclude that there

is no genuine issue of material fact about Dr. Levine failing to

*
Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge
for the Middle District of Georgia, sitting by designation.
establish any anticompetitive effect resulting from being denied

membership in Healthchoice and CFMA or from his hospital

suspension, and that the defendants are accordingly entitled to

judgment as a matter of law, we affirm the district court's grant

of summary judgment in their favor.
I. BACKGROUND

Because the case has come to us on appeal of summary judgment,

we construe the facts in the light most favorable to the nonmovant,

in this case Dr. Levine. Forbus v. Sears Roebuck & Co., 30 F.3d

1402, 1403 n. 1 (11th Cir.1994), cert. denied, --- U.S. ----, 115

S.Ct. 906, 130 L.Ed.2d 788 (1995). The following is a summary of

the facts as viewed in the light most favorable to Dr. Levine.

Dr. Scott D. Levine is an internist. In 1989, a year after

completing his residency in California, Dr. Levine moved to

Orlando, Florida to begin private practice. Although Dr. Levine

explored opportunities to join established medical practices as a

salaried employee,1 he ultimately decided to become a sole

practitioner. He began his practice in the summer of 1989.

When Dr. Levine began his practice, he sought, and was

granted, provisional staff privileges at the ORHS hospitals.2 ORHS
is a nonprofit organization that owns and operates five Orlando

area hospitals: Orlando Regional Medical Center ("ORMC"); Arnold

Palmer Hospital for Children and Women; Sand Lake Hospital; St.

1
One physician offered Dr. Levine $60,000 a year plus
benefits, and another offered him $100,000 a year plus benefits.
Neither offer appealed to Dr. Levine.
2
ORHS was formerly known as the Orlando Regional Medical
Center, a name the organization shared with one of its
unincorporated hospital facilities.
Cloud Hospital; and South Seminole Hospital (ORHS owns only half

of it). Dr. Levine primarily exercised his staff privileges at

Sand Lake Hospital because it is located across the street from his

office. Around October of 1990, after Dr. Levine had successfully

exercised his provisional staff privileges for more than a year,

ORHS granted him full active staff privileges. During 1990 and

1991, Dr. Levine also applied for, and was granted, staff

privileges at several other Orlando area hospitals: the Florida

Hospital system, which operates five hospitals; Glenbeigh

Hospital; Charter of Orlando South Hospital; and Health Central.

When Dr. Levine acquired provisional staff privileges at Sand

Lake Hospital, he agreed to have his name put on the emergency room

("ER") call list. Each day doctors of various specialties would be

"on call" in the ER, which means that if a patient came to the ER

and needed to see, for example, an internist, the hospital would

contact the internist whose name appeared on the call list for that

day. Dr. Levine found that being on the ER call list provided an

effective means of building his new practice, and so during his

early years in Orlando, he asked to be placed on the list as often

as possible. Many of the patients Dr. Levine treated in the ER

would continue to see him as their internist after leaving the

hospital. In addition, these patients would often refer Dr. Levine

new patients. Dr. Levine's strategy proved lucrative; in 1990,

his first full year of private practice, Dr. Levine's pre-tax net

earnings were $553,176—more than twice the average earnings of

Florida internists in private practice that year, according to

studies conducted by the American Medical Association.
A. THE DENIAL OF HEALTHCHOICE PPO MEMBERSHIP TO DR. LEVINE

In addition to being on the ER call list, another method of

building his practice that Dr. Levine explored was the possibility

of becoming a physician provider of Healthchoice3 and CFMA.4

Healthchoice is a PPO, which is a form of managed health care

coverage in which physicians agree to accept no more than a maximum

allowable fee for services rendered to plan enrollees in exchange

for a potentially higher volume of patients. CFMA is a physicians'

advocacy group that was organized to supply the Healthchoice PPO

with a panel of physician providers. Dr. Levine had heard that

Healthchoice was one of the largest PPOs in the Orlando area, and

he believed that Healthchoice patients accounted for approximately

twenty percent of some member physicians' practices. Dr. Levine

had also heard that Healthchoice physicians were, in his words,

"very pleased with what they're getting as reimbursement."

Dr. Levine sought physician provider membership with

Healthchoice several times between 1989 and 1990, but Healthchoice

denied his request for membership each time, explaining that it did

not need any more internists in his geographical area. Believing

(incorrectly) that in order to be a member of Healthchoice, one had

to be a member of CFMA, Dr. Levine also inquired about membership

in CFMA. However, Dr. Levine's telephone call to CFMA was answered

by a Healthchoice employee, and Dr. Levine was again told that it

did not need any more internists in his area.

3
Healthchoice is owned by Healthnet Services, Inc., which is
a for-profit wholly owned subsidiary of ORHS.
4
For a detailed description of how Healthchoice and CFMA
operate, see infra pp. ---- - ----.
 During his first few years of practice, Dr. Levine pursued

provider memberships in three other Orlando area PPOs—Health

Advantage, Alta, and Aetna. He joined the Health Advantage PPO

because it was part of the group health coverage he had purchased

for himself and his office staff. When his own health coverage

administrators switched to the Alta PPO, Dr. Levine then joined

Alta as well. Dr. Levine also applied to become a physician

provider of Aetna at the request of a patient, but Aetna denied his

application for the same reason that Healthchoice had—Aetna already

had enough internists in Dr. Levine's area. Although Dr. Levine

received numerous solicitations from other area PPOs inviting him

to become a physician provider, he turned down each of those

offers.

In January of 1991, Dr. Levine's practice was so busy that he

placed an advertisement in a medical journal to hire a physician as

a salaried employee. However, because of events that transpired at

Sand Lake Hospital that same month, Dr. Levine decided not to hire

another physician for his practice.

B. THE SUSPENSION OF DR. LEVINE'S STAFF PRIVILEGES AT SAND LAKE
HOSPITAL

In January of 1991, Cathy Canniff-Gilliam, the Executive

Director of Sand Lake Hospital, removed Dr. Levine from the ER call

list. A few days later, the executive committee of Sand Lake

Hospital voted to suspend Dr. Levine's remaining staff privileges

pending investigation of various patient care concerns.5 The

5
Dr. Levine's staff privileges at Sand Lake Hospital
included the privilege of admitting patients to the hospital and
treating them during their stay, and the privilege of being on ER
call and treating patients through the ER.
executive committee reported these concerns to the ORHS credentials

committee, which then assembled an investigative committee to

review the incidents giving rise to those concerns. After

interviewing Dr. Levine and reviewing his patients' charts, the

investigative committee reported its findings to the credentials

committee. The credentials committee reviewed the report and

recommended to the Sand Lake Hospital executive committee that it

place Dr. Levine on probation for six months and that it proctor

his performance of certain procedures several times each. The

executive committee decided to increase the probationary period to

one year, but other than that, it adopted the credentials

committee's recommendations. Dr. Levine appealed the executive

committee's decision, and in June of 1991, ORHS appointed a hearing

panel to review the executive committee's decision. The panel

affirmed the executive committee's decision to impose probationary

conditions upon Dr. Levine.

Subject to his new probationary status, Dr. Levine regained

admitting privileges in May of 1991, and ER call privileges in the

fall of 1991, although he chose to wait until mid-December to

resume being on ER call. Dr. Levine still has not met the

procedure proctoring requirements necessary to regain full staff

privileges, because he has chosen to admit his patients to Florida

Hospital, which is the largest hospital system in Orlando, and as

a result he has not performed the procedures that were to be

proctored at Sand Lake Hospital.

During the time that his staff privileges were suspended at
Sand Lake Hospital,6 Dr. Levine maintained staff privileges at

Glenbeigh Hospital, Charter Hospital, Health Central Hospital, and

Florida Hospital (which includes five campuses). However, he has

chosen not to exercise his staff privileges at Glenbeigh and

Charter, purportedly due to the time he has spent pursuing this

lawsuit.

The suspension of Dr. Levine's staff privileges began in the

third week of January in 1991. Notwithstanding his suspension, in

1991 Dr. Levine earned $724,722, which is $171,546 (or thirty-one

percent) more than he had earned the previous year when his Sand

Lake Hospital staff privileges were not suspended.
II. PROCEDURAL HISTORY

In March of 1993 Dr. Levine filed a complaint in the United

States District Court for the Middle District of Florida against

CFMA, Healthchoice, Sand Lake Hospital, and ORHS, alleging

violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1

& 2 (1988), and violations of various state laws.7 In Count 1 of

his complaint, Dr. Levine claimed that CFMA and Healthchoice

violated section 1 of the Sherman Act by maintaining a closed panel

of physicians and by denying him physician provider membership.

Dr. Levine claimed in Count 2 that all of the defendants conspired

6
Dr. Levine alleges that his staff privileges were suspended
at ORMC as well as Sand Lake Hospital; however, we have found no
evidence in the record to support that allegation.
7
In addition to the federal antitrust claims, Dr. Levine's
complaint included the following: claims under Florida's
antitrust statutes; a claim for tortious interference with
business relations; a claim under Florida's general tort
statute; and a claim for breach of contract. Dr. Levine filed a
parallel suit in state court which has been held in abeyance
pending resolution of this case in federal court.
to, and did, monopolize the market for patients "whose employers

have contracted with Healthchoice," in violation of section 2 of

the Sherman Act. In Count 3 Dr. Levine claimed that ORHS and Sand

Lake Hospital engaged in a concerted refusal to deal in violation

of section 1 of the Sherman Act by suspending his staff

privileges.8 Dr. Levine sought monetary damages in excess of

$100,000 and injunctive relief pursuant to sections 4 and 16 of the

Clayton Act.9

In June of 1994, after extensive discovery, each defendant

filed a motion for summary judgment as to the state and federal

antitrust claims. The district court granted the defendants'

motions, and, declining to exercise its supplemental jurisdiction,

the court dismissed the remaining state law claims without

prejudice. Dr. Levine now appeals the district court's grant of

summary judgment.
III. DISCUSSION

In granting the defendants' motions for summary judgment, the

district court held that Dr. Levine lacked standing to prosecute

his antitrust claims, and in the alternative that his claims lacked

8
Counts 1 through 3 also included Dr. Levine's state
antitrust law claims.
9
Section 4 of the Clayton Act authorizes a private action
for treble damages and provides, in pertinent part: "[A]ny
person who shall be injured in his business or property by reason
of anything forbidden in the antitrust laws may sue therefor...."
15 U.S.C.A. § 15(a) (West 1995). Section 16 authorizes a private
action for injunctive relief, and provides, in pertinent part:
"Any person, firm, corporation, or association shall be entitled
to sue for and have injunctive relief, in any court of the United
States having jurisdiction over the parties, against threatened
loss or damage by a violation of the antitrust laws...." 15
U.S.C.A. § 26 (West 1973).
merit. As to Dr. Levine's section 1 and 2 claims against

Healthchoice and CFMA for denying him membership, and his section

2 claim against ORHS and Sand Lake Hospital for their part in the

alleged conspiracy to monopolize, the district court held he lacked

standing because he was not an efficient enforcer of the antitrust

laws, and in the alternative, that those claims were without merit

because he had failed to prove the defendants' market power. As to

Dr. Levine's section 1 claim against ORHS and Sand Lake Hospital

for suspending his staff privileges, the district court held that

he lacked standing because he had failed to establish that his

suspension resulted in any antitrust injury, and in the

alternative, that the claims lacked merit because of Dr. Levine's

failure to show any anticompetitive effect arising out of his

suspension.

We need not decide whether Dr. Levine has met the

requirements for standing as to any of his antitrust claims,

because as to each one he has failed to establish any violation of

the antitrust laws.10 Because we believe Dr. Levine has failed to

prove any anticompetitive effect resulting from the defendants'

behavior, as is required under the Sherman Act, we follow the

advice of Professors Areeda and Hovenkamp and decide this case on

the merits rather than on standing:

When a court concludes that no violation has occurred, it
has no occasion to consider standing.... An increasing number
of courts, unfortunately, deny standing when they really mean
that no violation has occurred. In particular, the antitrust

10
Because we hold that Dr. Levine has failed to establish
any antitrust violation, we also need not consider whether he has
established standing to sue for injunctive relief under section
16 of the Clayton Act.
 injury element of standing demands that the plaintiff's
alleged injury result from the threat to competition that
underlies the alleged violation. A court seeing no threat to
competition in a rule-of-reason case may then deny that the
plaintiff has suffered antitrust injury and dismiss the suit
for lack of standing. Such a ruling would be erroneous, for
the absence of any threat to competition means that no
violation has occurred and that even suit by the
government—which enjoys automatic standing—must be dismissed.

2 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 360f, at

202-03 (rev. ed. 1995) (footnotes omitted). This approach is

consistent with our precedents. We have ruled on the merits of an

antitrust claim without ever deciding whether the plaintiff had

antitrust standing. E.g., Aladdin Oil Co. v. Texaco, Inc., 603

F.2d 1107, 1109 n. 2 (5th Cir.1979) (assuming standing and

affirming grant of summary judgment for defendants because

plaintiff failed to establish antitrust violations); Hardwick v.

Nu-Way Oil Co., 589 F.2d 806, 807 n. 3 (5th Cir.) (same), cert.

denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979); see also

Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1446-47 (11th

Cir.1991) (reaching the merits of an antitrust claim even though

the plaintiff lacked standing to bring the claim).

We review a district court's grant of summary judgment de

novo. Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1122 (11th

Cir.1995). Viewing the facts in the light most favorable to the

nonmovant, we must determine whether there exists a genuine issue

of material fact or whether the movant is entitled to judgment as

a matter of law. Tisdale v. United States, 62 F.3d 1367, 1370

(11th Cir.1995).

A. THE SECTION 1 CLAIMS

Section 1 of the Sherman Act provides that "[e]very contract,
combination in the form of trust or otherwise, or conspiracy, in

restraint of trade or commerce among the several States, or with

foreign nations, is declared to be illegal." 15 U.S.C.A. § 1 (West

1973). A section 1 plaintiff must prove an agreement between two

or more persons to restrain trade, because unilateral conduct is

not illegal under section 1. See, e.g., Fisher v. City of

Berkeley, Cal., 475 U.S. 260, 266, 106 S.Ct. 1045, 1049, 89 L.Ed.2d

206 (1986) ("Even where a single firm's restraints directly affect

prices and have the same economic effect as concerted action might

have, there can be no liability under § 1 in the absence of

agreement."); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S.

752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); Todorov,

921 F.2d at 1455. Thus, the first element of a section 1 claim is

proof of an agreement to restrain trade.

However, not every agreement that restrains competition will

violate the Sherman Act. The Supreme Court long ago determined

that section 1 prohibits only those agreements that unreasonably

restrain competition, Standard Oil Co. v. United States, 221 U.S.

1, 58-64, 31 S.Ct. 502, 515-17, 55 L.Ed. 619 (1911), thus, the

unreasonableness of the agreement is the second element of a

section 1 claim. In identifying which agreements unreasonably

restrain competition, the Supreme Court has held that certain kinds

of agreements are unreasonable per se, such as agreements among

direct competitors to fix prices or to restrict output. E.g.,

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224-26 n. 59,

60 S.Ct. 811, 845-46 n. 59, 84 L.Ed. 1129 (1940). The only inquiry

in such cases is whether there was an agreement to do so, because
the unreasonableness of the restraint is presumed. See, e.g.,

Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332, 344-45, 102

S.Ct. 2466, 2473-74, 73 L.Ed.2d 48 (1982); United States v.

Trenton Potteries Co., 273 U.S. 392, 397-98, 47 S.Ct. 377, 379, 71

L.Ed. 700 (1927). Agreements that do not fit within an established

per se category are analyzed under the "rule of reason," i.e.,

courts will engage in a comprehensive analysis of the agreement's

purpose and effect to determine whether it unreasonably restrains

competition. E.g., Broadcast Music, Inc. v. Columbia Broadcasting

Sys., Inc., 441 U.S. 1, 24-25, 99 S.Ct. 1551, 1565, 60 L.Ed.2d 1

(1979).
1. The Section 1 Claim Against Healthchoice and CFMA

A more detailed description of how the Healthchoice PPO and

CFMA operate is necessary to a discussion of the merits of Dr.

Levine's claims against those two defendants.

a) How Healthchoice and CFMA Operate

Healthchoice markets to healthcare payors a panel of select

healthcare providers—which includes physicians, hospitals,

pharmacies, and durable medical equipment companies. The payors

consist of employers, insurance companies, third party

administrators, or governmental agencies. Healthchoice maintains

a limited panel of providers who have agreed to accept no more than

a maximum allowable fee for services rendered or products furnished

to Healthchoice enrollees. These maximum fees may or may not be

lower than the provider's ordinary charges. In addition, the

providers agree to be subject to Healthchoice's utilization review

and quality control program. Providers are willing to accept these
terms because Healthchoice membership may increase their number of

patients.

Healthchoice individually negotiates with each payor to arrive

at a schedule of fees that the payor is willing to pay for various

medical products and services. Healthchoice presents each

prospective payor with its schedule of fees, and the payor is then

free to negotiate with Healthchoice for lower fees. Several steps

are involved in computing Healthchoice's schedule of fees. Every

medical product and service is identified according to a

standardized "Current Procedural Terminology" code ("CPT code").

Healthchoice assigns to each CPT code, of which there are

approximately 9,000, a unit value that it adapts from information

provided by Medicare. The unit value is a reflection of the

approximate cost of resources required for each procedure or

product. Healthchoice then assigns a monetary conversion factor to

each major medical specialty, e.g., medicine has one conversion

factor, and radiology has another; these conversion factors are

collectively called the "Master Payor Rate Schedule." The

Healthchoice fee schedule is computed by multiplying the conversion

factors on the Master Payor Rate Schedule by the unit values

assigned to the CPT codes. The resulting schedule of fees, once

accepted by the payor, are the maximum that the payor will

reimburse a provider for each product or service. Thus, when a

payor receives a bill from a provider, it pays the provider the

lesser of either the actual charges submitted by the provider, or

the maximum allowable fee as reflected in the Healthchoice fee

schedule.
 Healthchoice does not consult its various providers when it

compiles the unit values or the conversion factors. The

Healthchoice board of directors has eight members, four of whom are

CFMA physicians, but when that board approves the Master Payor Rate

Schedule, those four physician board members are not allowed to

participate. In its contract with a provider, Healthchoice

includes the conversion factors, but it does not include the unit

values. Thus, the provider does not know the exact fees that

Healthchoice has negotiated with the payors. Instead, the contract

with each provider includes only an example of how a fee would be

calculated for one of the more commonly used CPT codes. Should a

provider request more information about the fee schedule,

Healthchoice will give the provider a few more illustrations. The

provider is always allowed to "opt out" of a contract with a given

payor if it finds the fee reimbursement unacceptable.11

A Healthchoice enrollee is free to use non-Healthchoice

providers; however, the enrollee's payor may require the enrollee

to pay a higher deductible, and may require the enrollee to pay for

any provider charges over the payor's maximum allowable

reimbursement. The payors individually design the terms of these

benefit packages—Healthchoice itself does not create financial

disincentives for any enrollees who choose to use non-Healthchoice

providers.

The main source of Healthchoice's physician providers is CFMA,

11
Healthchoice charges each payor a nominal monthly fee for
each of the payor's enrolled employees. In 1994, the fee was
approximately $1.25 per month for each enrollee. Healthchoice
has never earned a profit.
which was organized to supply Healthchoice with a panel of

physician providers. Four members of CFMA sit on the board of

directors of Healthchoice. However, Healthchoice does not contract

only with CFMA for physician providers; many of Healthchoice's

physician providers are not members of CFMA. Healthchoice

providers, whether or not members of CFMA, are allowed to

participate in other PPOs, and most of them do participate in

several different PPOs.

For a short period of time after Healthchoice began doing

business, it accepted applications from any provider who wanted to

apply. Thereafter, Healthchoice decided to limit the size of its

panel, and so it adopted a need-based system for determining how

many providers of various specialties to include on its panel.

Healthchoice stopped accepting applications from physicians in

those specialties that were already adequately represented on the

provider panel. This need-based system is administered by the

Healthchoice staff; providers do not participate in determining

how many providers are needed on the Healthchoice panel. The

Healthchoice staff also handles all inquiries regarding provider

panel membership opportunities, without discussing those inquiries

with the board of directors.

Healthchoice considers numerous factors in deciding how many

providers to have on its panel, including: (1) the number of

enrollees in the plan; (2) the geographic location of enrollees

and providers; (3) the physicians' specialties; (4) the

administrative costs of managing providers; (5) the special needs

of particular payors; and (6) the availability of access to
existing members, i.e., how long a patient has to wait to get an

appointment with a Healthchoice provider. Although Healthchoice's

general policy is to add new providers only when the need arises,

if an existing Healthchoice provider adds a physician to his group

practice, that new physician is automatically eligible to become a

Healthchoice provider, subject to the new physician meeting

Healthchoice's credentialling standards. The purpose of the

exception to the need-based system is to avoid the administrative

difficulties associated with cross-coverage: because physicians in

a group practice cover for one another when they take time off,

Healthchoice determined that it would be more cost effective to

exercise its utilization review and quality control over the whole

practice group.

Healthchoice asks its providers to refer Healthchoice patients

to other Healthchoice providers whenever feasible. If a provider

continually refers Healthchoice patients to non-Healthchoice

physicians without justification, Healthchoice may remove that

provider from the panel. This provision helps assure that

Healthchoice and the payors can manage the costs of healthcare.

Because non-Healthchoice physicians are not subject to

Healthchoice's utilization review system, the payors have no

effective means of determining whether the care rendered by a

non-Healthchoice physician is necessary or cost efficient.

As of the date that discovery was complete in this case,

Healthchoice had approximately 68,000 covered lives in the Orlando
area, which had a population of more than 1.1 million.12 There were

approximately 865 Healthchoice physician providers among the more

than 2,200 licensed physicians in the Orlando area. At that time,

Healthchoice competed with thirty-seven other PPOs, eleven Health

Maintenance Organizations ("HMOs"), and numerous traditional

insurance coverage companies.

b) The Merits of the Section 1 Claim Against Healthchoice and
CFMA

Dr. Levine alleges that Healthchoice, CFMA, and their member

physicians have conspired to unreasonably restrain competition in

violation of section 1 of the Sherman Act by maintaining a closed

panel of providers physicians, by creating a financial disincentive

for enrollees who want to use non-Healthchoice physicians, and by

prohibiting Healthchoice physicians from referring Healthchoice

enrollees to non-Healthchoice physicians. Dr. Levine argues that

these features restrict the availability of physician services to

Healthchoice enrollees, lead to price stabilization in the market

for physician services, and render excluded physicians incapable of

competing for Healthchoice patients. Dr. Levine primarily

characterizes the activities of the defendants as a group boycott,

or a concerted refusal to deal, however, he occasionally refers to

the defendants' activities as illegal price fixing. We will first

discuss his contention that the defendants have illegally fixed

prices, and then his contention that they have engaged in a

concerted refusal to deal.

12
"Covered lives" includes enrolled employees and any family
members covered by their policy. The parties define "the Orlando
area" as Orange, Seminole, and Osceola counties.
 i) The Alleged Agreement to Fix Prices

Although Dr. Levine did not specifically argue to this Court

that the defendants illegally fixed prices, i.e. provider fees,

there are portions of his brief where he appears to assume the
existence of such an agreement. That assumption is contrary to the

uncontroverted evidence in the record, which establishes that there

was no agreement between Healthchoice, CFMA, and their member

physicians to fix provider fees. Healthchoice negotiates the

provider reimbursement schedule directly with payors, not with
providers. Healthchoice does not consult any physician providers

when it compiles the CPT code unit values or the Master Payor Rate

Schedule, and physician members of the Healthchoice board of

directors are excluded from the reimbursement schedule proposal and

approval process. Providers must either accept not more than the

maximum reimbursement negotiated by Healthchoice with the payors

and not charge the patient for any difference between their fee and
the reimbursement, or else opt out of the plan. The result is that

the providers' actual fees are not set. The only figure that is

set is the maximum allowable fee that they will be reimbursed by

Healthchoice. Nothing prevents the physician from dropping his

fees even further in order to compete should he choose to do so.

This method of negotiating fees, in which the payors decide

the maximum amount they are willing to reimburse providers for

medical services and providers decide whether they are willing to

accept that limitation on the reimbursement they receive, is a kind

of "price fixing," but it is a kind that the antitrust laws do not

prohibit. See, e.g., Kartell v. Blue Shield, 749 F.2d 922, 923-26
(1st Cir.1984) (Breyer, J.), cert. denied, 471 U.S. 1029, 105 S.Ct.

2040, 85 L.Ed.2d 322 (1985); Pennsylvania Dental Ass'n v. Medical

Serv. Ass'n, 745 F.2d 248, 256-57 (3d Cir.1984), cert. denied, 471

U.S. 1016, 105 S.Ct. 2021, 85 L.Ed.2d 303 (1985); Medical Arts

Pharmacy v. Blue Cross & Blue Shield, 675 F.2d 502, 504-06 (2d

Cir.1982); see also 8 Phillip E. Areeda, Antitrust Law ¶ 1622b

(1989). Because there is no genuine issue of material fact

regarding the existence of an agreement among Healthchoice, CFMA,

or its member doctors to fix provider fees, and because the

defendants are entitled to judgment as a matter of law, Dr.

Levine's section 1 claim against these defendants, to the extent

that it alleges illegal price fixing, fails.

Our decision that Healthchoice's method of negotiating with

payors the fees it pays providers does not violate the Sherman Act

as a matter of law is supported by the Department of Justice and

the Federal Trade Commission's recently issued "Statements of

Enforcement Policy and Analytical Principles Relating to Health

Care and Antitrust" ("DOJ Enforcement Policy" or "the policy"),

available in, WESTLAW, 1994 WL 642477 (F.T.C.). The DOJ

Enforcement Policy separates those multiprovider networks wherein

competitors agree with one another regarding prices or market

allocation, from those networks wherein such decisions are handled

unilaterally by each competitor or through a third party

"messenger." The policy defines the "messenger model" as involving

"an agent or third party conveying to purchasers information

obtained individually from providers in the network about prices

the network participants are willing to accept, and conveying to
providers any contract offers made by purchasers." Id. at *38

(footnote omitted). The latter will "rarely present substantial

antitrust concerns." Id. The policy states that "[t]he critical

antitrust issue is whether the arrangement creates or facilitates

agreements that restrict price or other significant terms of

competition among the provider members of the network." Id. at

*39. In this case, there is no evidence that the Healthchoice

method of negotiating maximum fee reimbursement facilitates any

agreements among its provider panel members to restrict price or
any other forms of competition.13
ii) The Alleged Concerted Refusal to Deal

Although there is no genuine issue of material fact regarding

the existence of an agreement to fix prices, Dr. Levine submitted

evidence sufficient to establish a genuine issue of material fact

regarding the existence of a concerted refusal to deal, i.e.

agreements among Healthchoice, CFMA, and their member providers to

restrict the size of the provider panel, and to discourage

13
We also note that in Arizona v. Maricopa County Medical
Soc'y, the Supreme Court implicitly sanctioned this approach to
negotiating reimbursement rates:

[A] binding assurance of complete insurance coverage—as
well as most of the respondents' potential for lower
insurance premiums—can be obtained only if the insurer
and the doctor agree in advance on the maximum fee that
the doctor will accept as full payment for a particular
service. Even if a fee schedule is therefore
desirable, it is not necessary that the doctors do the
price fixing.... [I]nsurers are capable not only of
fixing maximum reimbursable prices but also of
obtaining binding agreements with providers
guaranteeing the insured full reimbursement of a
participating provider's fee.

457 U.S. 332, 352-53, 102 S.Ct. 2466, 2477-78, 73 L.Ed.2d 48
(1982) (footnote omitted).
providers from referring Healthchoice enrollees to non-Healthchoice

physicians. Thus, for purposes of defeating summary judgment

against him, Dr. Levine has established the first element of his

section 1 claim to the extent that it alleges a concerted refusal

to deal. The question remains whether the agreements in question

are an unreasonable restraint on competition as required to

establish the second element of a section 1 claim.

Before we can determine whether the Healthchoice and CFMA

agreements are an unreasonable restraint on competition, we must

first decide whether to analyze them under the per se rule or the

rule of reason. "[A] restraint may be adjudged unreasonable either

because it fits within a class of restraints that has been held to

be "per se' unreasonable, or because it violates what has come to

be known as the "Rule of Reason.' " F.T.C. v. Indiana Fed'n of

Dentists, 476 U.S. 447, 457-58, 106 S.Ct. 2009, 2017, 90 L.Ed.2d

445 (1986). "The presumption in cases brought under section 1 of

the Sherman Act is that the rule-of-reason standard applies."

Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1567 (11th

Cir.1991). We apply the per se rule "only when history and

analysis have shown that in sufficiently similar circumstances the

rule of reason unequivocally results in a finding of liability,"

Consultants & Designers, Inc. v. Butler Serv. Group, Inc., 720 F.2d

1553, 1562 (11th Cir.1983), i.e., when the conduct involved "always

or almost always tend[s] to restrict competition and decrease

output." Broadcast Music, Inc., 441 U.S. at 19-20, 99 S.Ct. at

1562. We will not apply the per se rule "to restraints of trade

that are of ambiguous effect." Consultants & Designers, 720 F.2d
at 1562; see also Indiana Fed'n of Dentists, 476 U.S. at 458-59,

106 S.Ct. at 2018 (declining "to extend per se analysis to

restraints imposed in the context of business relationships where

the economic impact of certain practices is not immediately

obvious"); National Soc'y of Professional Eng'rs v. United States,

435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978).

Dr. Levine characterizes the agreement to limit the size of

the provider panel and to discourage provider members from

referring Healthchoice patients to non-Healthchoice physicians as

a group boycott and urges this Court to apply the per se rule. But

this Court has stated that "[t]he attachment of the group boycott

label does not necessarily require as a consequence an application

of the per se approach." Consultants & Designers, 720 F.2d at 1561

(citation and quotation marks omitted) (alteration in original).

"The labeling of a restraint as a group boycott does not eliminate

the necessity of determining whether it is a "naked restraint of

trade with no purpose except stifling competition.' " Id. (quoting

White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696,

702, 9 L.Ed.2d 738 (1963)). In F.T.C. v. Indiana Federation of

Dentists, the Supreme Court described the kind of the boycotts

subject to the per se rule:

Although this Court has in the past stated that group boycotts
are unlawful per se, we decline to resolve this case by
forcing the [defendant's] policy into the "boycott" pigeonhole
and invoking the per se rule. As we observed last Term in
Northwest Wholesale Stationers, Inc. v. Pacific Stationery &
Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202
(1985), the category of restraints classed as group boycotts
is not to be expanded indiscriminately, and the per se
approach has generally been limited to cases in which firms
with market power boycott suppliers or customers in order to
discourage them from doing business with a competitor....
476 U.S. at 458, 106 S.Ct. at 2018 (emphasis added) (citation

omitted).

Dr. Levine bases his concerted refusal to deal claim on

Healthchoice's denial of his repeated attempts to apply for

membership, and its rule discouraging panel members from referring

patients to physicians outside the network. This case does not

involve the kind of group boycott that warrants application of the

per se rule, i.e., it is not a "naked restraint of trade with no

purpose except stifling competition." Consultants & Designers, 720

F.2d at 1562. We will analyze the facts of this case under the

rule of reason, instead of the per se approach, for two reasons.

First, we are persuaded that because Dr. Levine has not proven that

Healthchoice and CFMA have market power,14 the Supreme Court's

decision in Indiana Federation of Dentists, a pertinent part of

which is quoted above, precludes us from applying the per se rule

to these facts.

Second, the DOJ Enforcement Policy supports our decision to

apply the rule of reason instead of the per se rule. The policy

states that "[b]ecause multiprovider networks are relatively new to

the health care industry, the Agencies do not yet have sufficient

experience evaluating them to issue a formal statement of antitrust

enforcement policy." DOJ Enforcement Policy, available in,

WESTLAW, 1994 WL 642477, at 37 (F.T.C.). As previously noted, this

Court is loath to condemn a practice as per se violative of the

antitrust laws unless experience has shown that it always leads to

anticompetitive effects in the market, Consultants & Designers, 720

14
For a discussion of market power, see infra pp. 776-78.
F.2d at 1562, and the DOJ policy statement evidences that such

experience is lacking with respect to multiprovider networks.

The DOJ Enforcement Policy also provides guidance on how to

analyze the multiprovider network practice of excluding particular

providers:

Most multiprovider networks will contract with some, but
not all, providers in an area. Such selective contracting may
be a method through which networks limit their provider panels
in an effort to achieve quality and cost containment goals and
enhance their ability to compete against other networks. One
reason often advanced for selective contracting is to ensure
that the network can direct a sufficient patient volume to its
providers to justify price concessions or adherence to strict
quality controls by the providers. Where a geographic market
can support several multiprovider networks, there are not
likely to be significant competitive problems associated with
the exclusion of particular providers by particular networks.

A rule of reason analysis usually is applied in judging
the legality of excluding providers from a multiprovider
network. The focus of the analysis is not on whether a
particular provider has been harmed by the exclusion, but
rather whether the exclusion reduces competition among
providers in the market and thereby harms consumers.
Therefore, exclusion may present competitive concerns if
providers are unable to compete effectively without access to
the network, and competition is thereby harmed. The Agencies
also recognize, however, that there may be procompetitive
reasons associated with the exclusion, such as the provider's
competence or ability and willingness to meet the network's
cost-containment goals. In addition, in certain circumstances
network membership restrictions may be procompetitive by
giving non-member providers the incentive to form other
networks in order to compete more effectively with the
network.

DOJ Enforcement Policy at 42. We find no fault with that analysis,

and consistent with it we conclude that the rule of reason applies

to Dr. Levine's section 1 claim against Healthchoice and CFMA.

Under the rule of reason, the "test of legality is whether

the restraint imposed is such as merely regulates and perhaps

thereby promotes competition or whether it is such as may suppress

or even destroy competition." Chicago Bd. of Trade v. United
States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918).

Rule of reason analysis requires the plaintiff to prove (1) an

anticompetitive effect of the defendant's conduct on the relevant

market, and (2) that the conduct has no procompetitive benefit or

justification. E.g., Consultants & Designers, 720 F.2d at 1562.

In order to prove an anticompetitive effect on the market,

the plaintiff may either prove that the defendants' behavior had an

"actual detrimental effect" on competition, or that the behavior

had "the potential for genuine adverse effects on competition." In

order to prove the latter, the plaintiff must define the relevant

market and establish that the defendants possessed power in that

market. Indiana Fed'n of Dentists, 476 U.S. at 460-61, 106 S.Ct.

at 2019; Capital Imaging Assoc., P.C. v. Mohawk Valley Medical

Assoc., Inc., 996 F.2d 537, 546 (2d Cir.) ("[W]here the plaintiff

is unable to demonstrate ... actual effects, it must at least

establish that defendants possess the requisite market power so

that their arrangement has the potential for genuine adverse

effects on competition." (citation and quotation marks omitted)),

cert. denied, --- U.S. ----, 114 S.Ct. 388, 126 L.Ed.2d 337 (1993).

We analyze the concerted refusal to deal in this case first for

actual detrimental effect on competition, and then for potential

adverse effect.

Dr. Levine contends that he has shown actual detrimental

effects, i.e., that the defendants intended to, and did, restrict

competition. But Dr. Levine has failed to support with any

evidence his conclusory assertion that the defendants' behavior

actually had the effect of restricting competition. Indeed, the
evidence in the record suggests the contrary. Although

Healthchoice and CFMA denied him membership, Dr. Levine had no

trouble establishing a booming practice. Dr. Levine opened a solo

practice in 1989 with one patient, and in a little more than a year

his practice was so busy that he began advertising to hire another

physician. Dr. Levine acknowledges his extraordinary success—which

earned him more than half a million dollars in his first full year

of practice and nearly three quarters of a million dollars his

second year—but he argues that had he been allowed to join

Healthchoice, he would have been able to "score a touchdown." The

antitrust laws are intended to protect competition, not

competitors, see Brown Shoe Co. v. United States, 370 U.S. 294,

344, 82 S.Ct. 1502, 1534, 8 L.Ed.2d 510 (1962); Todorov, 921 F.2d

at 1450, and we will not depart from that purpose in order to

improve Dr. Levine's income standings in the physician league or

help him win the Super Bowl of remuneration.

Dr. Levine also contends that he has shown actual detrimental

effects on competition by showing that Healthchoice's closed panel

resulted in fees rising and stabilizing, but there is no evidence

of that in the record. Dr. Levine relies upon the Healthchoice

Master Payor Rate Schedules from several years as evidence of

rising fees, but those schedules do not establish that provider

fees have risen. The Master Payor Rate Schedules include only one

of the two factors that goes into calculating a fee—the conversion

factor.15 They do not include the other critical factor, which is

15
For an explanation of how the fees are calculated, see
supra pp. 769-70.
the unit values for the more than 9,000 CPT codes. Without the

unit values for the years covered by the Master Payor Rate

Schedules, which Dr. Levine has not provided, the actual fees

cannot be calculated. Moreover, evidence in the record indicates

that Healthchoice has on many occasions lowered both the conversion

factors and the unit values when its analysis of the market

indicated the need for a more competitive fee structure. In any

event, evidence of rising fees is insufficient unless placed in

context with evidence about the fees charged by non-Healthchoice

physicians, the resource costs underlying the physician services,

and the rate of inflation. Thus, Dr. Levine has failed to

establish a genuine issue of material fact about whether

Healthchoice and CFMA have had an actual detrimental effect on

competition.

In the face of his failure to show an actual detrimental

effect on competition, Dr. Levine argues that he still need not

prove market power if he shows that the defendants intended to

restrict competition. The rule of reason analysis is concerned

with the actual or likely effects of defendants' behavior, not with

the intent behind that behavior. See U.S. Healthcare, Inc. v.

Healthsource, Inc., 986 F.2d 589, 596 (1st Cir.1993) (stating that

"effects are ... the central concern of the antitrust laws," and

that motivation is but "a clue"). Thus even if Dr. Levine had

established that the defendants intended to restrict

competition—which he has not—proof of such intent would not relieve

him of the necessity of either proving the defendants' market power

or proving an actual detrimental effect on competition, and we have
already decided that he has failed to create a genuine issue of

material fact as to actual detrimental effect.

In view of that, Dr. Levine's claim may only succeed under

our section 1 rule of reason analysis if he proves that the

defendants' acts had "the potential for genuine adverse effects on

competition." To do this, Dr. Levine must define the relevant

product and geographic markets and prove that the defendants had

sufficient market power to affect competition. See Indiana Fed'n

of Dentists, 476 U.S. at 460-61, 106 S.Ct. at 2019. Dr. Levine

contends that the relevant product market should be the provision

of internist services to Healthchoice patients, which he

characterizes as an "aftermarket," relying on Eastman Kodak Co. v.

Image Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119

L.Ed.2d 265 (1992), and that the relevant geographic market is the

Orlando area. He argues that the product market he has defined is

separate from the market for all other physician services in the

Orlando area. We disagree.

"To define a market is to identify producers that provide

customers of a defendant firm (or firms) with alternative sources

for the defendant's product or services." 2A Phillip E. Areeda et

al., Antitrust Law ¶ 530a, at 150 (1995) (footnote omitted); see

also Eastman Kodak, 504 U.S. at 481, 112 S.Ct. at 2090. The

"market is composed of products that have reasonable

interchangeability." United States v. E.I. du Pont de Nemours &

Co., 351 U.S. 377, 404, 76 S.Ct. 994, 1012, 100 L.Ed. 1264 (1956);

see also United States Anchor Mfg., Inc. v. Rule Indus., Inc., 7

F.3d 986, 995 (11th Cir.1993), cert. denied, --- U.S. ----, 114
S.Ct. 2710, 129 L.Ed.2d 837 (1994). Therefore, in order to provide

an accurate market definition in this case, Dr. Levine must

identify the physician services that Healthchoice enrollees would

deem to be reasonably interchangeable with the services provided by

Healthchoice providers. It is undisputed that Healthchoice

enrollees are free to choose non-Healthchoice physicians, and that

Healthchoice payors will cover at least some portion of the

non-Healthchoice physician's fee. Dr. Levine contends, however,

that it is financially impractical for Healthchoice enrollees to

visit non-Healthchoice physicians because the enrollees have to pay

more money out of their own pockets to do so. Thus, he argues,

non-Healthchoice internists are not interchangeable with

Healthchoice internists, which means Healthchoice internists are a

separate product market. We are not persuaded.

Dr. Levine has failed to present evidence showing how much

more, if any, Healthchoice enrollees must pay to visit a

non-Healthchoice physician. In fact, Dr. Levine admits that he has

treated two Healthchoice enrollees in his practice, and that for

one of those patients he waived the payor's copayment requirement

so that the patient did not have an additional out-of-pocket

expense.16 Moreover, Dr. Levine has offered no evidence to show

that the cost to the enrollee of switching to another healthcare

plan would be prohibitively expensive. Although Dr. Levine's

expert assumed that Healthchoice enrollees are locked in to the

16
Dr. Levine says that this patient stopped seeing him
because she felt too guilty about his having waived the copayment
requirement. That purported reason is somewhat ironic in view of
Dr. Levine's income level. See supra p. 776.
Healthchoice plan, he admitted that he had seen no evidence that

the enrollees' choice of plan had been so restricted. To the

contrary, the evidence in the record establishes that the largest

Healthchoice payor offers its enrollees several choices for

healthcare coverage, and that those enrollees are allowed to switch

plans. There is nothing to indicate that the other Healthchoice

payors offer their enrollees any less choice. Thus, we hold that

Dr. Levine's narrow definition of the relevant product market does

not satisfy his burden of presenting prima facie evidence of the

relevant market.17 See L.A. Draper & Son v. Wheelabrator-Frye,

Inc., 735 F.2d 414, 422 (11th Cir.1984) ("An antitrust plaintiff

... makes out a prima facie case under the rule of reason only upon

proof of a well-defined relevant market upon which the challenged

anticompetitive actions would have substantial impact." (citation

and quotation marks omitted)); see also Bathke v. Casey's Gen.

Stores, Inc., 64 F.3d 340, 345 (8th Cir.1995); Pastore v. Bell

Tel. Co., 24 F.3d 508, 512 (3d Cir.1994).

Even if Dr. Levine had adequately defined the relevant market,

he has presented no evidence to prove the defendants' market power.

Absent evidence that the defendants had sufficient market power to

affect competition, Dr. Levine's section 1 claim must fail.

Therefore, because Dr. Levine has not established either that the

defendants' behavior had an "actual detrimental effect" on

competition or "the potential for genuine adverse effects on

17
Dr. Levine was required to define both the relevant
product market and the relevant geographic market; however,
because we have held that he failed to adequately define the
relevant product market, we need not reach whether the Orlando
area is a proper relevant geographic market.
competition," Indiana Fed'n of Dentists, 476 U.S. at 460-61, 106

S.Ct. at 2019, we hold that the district court properly dismissed

Dr. Levine's section 1 claim against Healthchoice and CFMA.18
2. The Section 1 Claim Against ORHS and Sand Lake Hospital

Dr. Levine claims that ORHS, Sand Lake Hospital, and other

unnamed co-conspirators on the Sand Lake Hospital medical staff

violated section 1 of the Sherman Act by conspiring to suspend his
staff privileges without good cause, and that this activity

constituted a concerted refusal to deal resulting in an

unreasonable restraint of trade. As Dr. Levine conceded at oral

argument, the per se rule does not apply to the defendants'

decision to suspend his staff privileges. As with Dr. Levine's

section 1 claim against Healthchoice and CFMA, we will apply the

rule of reason to his section 1 claim against ORHS and Sand Lake

Hospital.

We need not decide whether Dr. Levine has offered sufficient

proof of a conspiracy to restrain trade between ORHS, Sand Lake

Hospital, and members of its medical staff, the first element of a

section 1 claim, because once again Dr. Levine has failed to
demonstrate that any resulting restraint on competition is

unreasonable, the second element of a section 1 claim. More

particularly, Dr. Levine has not met the rule of reason's

requirement of proving an actual or potential detrimental effect on

competition.

18
Because we hold that Dr. Levine has failed to establish
any anticompetitive effect, we need not reach the second part of
the rule of reason analysis and decide whether the defendants'
conduct may be excused by some procompetitive benefit or
justification.
 The only evidence Dr. Levine offers to show that his

suspension had an actual detrimental effect on competition is that

one of his patients came to the Sand Lake Hospital ER during his

suspension and was unable to use Dr. Levine's services. The

practical effect of this incident is no different than if Dr.

Levine's patient had been taken to the ER at a hospital where he

had never even applied for staff privileges—the patient would be

unable to see Dr. Levine at that location at that particular time.

However, had the patient gone or been taken to Florida Hospital

(which has five locations), where Dr. Levine did have staff

privileges, she would have been able to use Dr. Levine's services.

We are convinced that a patient's inability to see Dr. Levine in

the Sand Lake Hospital ER when she asked for him does not rise to

the level of an actual detrimental effect on competition. Cf. Lie

v. St. Joseph Hosp., 964 F.2d 567, 569-70 (6th Cir.1992) (holding

that plaintiff doctor's proof that hospital staff suspension

resulted in him having a lower income did not rise to level of

actual detrimental effects on competition); Tarabishi v. McAlester

Regional Hosp., 951 F.2d 1558, 1569 n. 15 (10th Cir.1991) (holding

that plaintiff's staff privileges suspension was not an actual

detrimental effect on competition because it did not result in

restriction of choice to consumers or in a reduction of

competition), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120

L.Ed.2d 872 (1992). Thus Dr. Levine's only remaining recourse for

establishing his section 1 claim is to demonstrate the potential

for detrimental effects on competition, and to do that he must

establish that the defendants had sufficient market power to affect
competition. Indiana Fed'n of Dentists, 476 U.S. at 460-61, 106

S.Ct. at 2019.

Dr. Levine maintains, however, that he need not prove the

defendants' market power, and for that proposition he relies on

Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 111 S.Ct. 1842, 114

L.Ed.2d 366 (1991), Boczar v. Manatee Hosp. & Health Sys., Inc.,

993 F.2d 1514 (11th Cir.), reh'g denied, 11 F.3d 169 (11th

Cir.1993), and Bolt v. Halifax Hosp. Medical Ctr., 891 F.2d 810

(11th Cir.), cert. denied, 495 U.S. 924, 110 S.Ct. 1960, 109

L.Ed.2d 322 (1990). None of those decisions supports Dr. Levine's

position.

The sole issue to be decided in Pinhas was whether a

hospital's exclusion of a physician from its medical staff could

satisfy the "effect on interstate commerce" jurisdictional

requirement. 500 U.S. at 324, 111 S.Ct. at 1844. Dr. Levine

quotes the following language from Justice Scalia's dissent in

Pinhas to support his argument: "Since group boycotts are per se

violations ... [the plaintiff] need not prove an effect on

competition in the Los Angeles area to prevail...." Id. at 337,

111 S.Ct. at 1851. However, this is no more than a restatement of

the basic analysis under the per se rule. Because Dr. Levine has

already conceded that the per se rule does not apply to his claim

against the hospital, the language from Justice Scalia's dissent

does not help him. Moreover, Dr. Levine ignores Justice Scalia's

final position in his dissent, which is that the Sherman Act should

not even apply to the hospital's actions because the hospital

suspension did not effect interstate commerce. Id. at 341-43, 111
S.Ct. at 1853-54.

Dr. Levine's reliance on Bolt is no more persuasive. He

interprets Bolt to stand for the proposition that, in his words,

"there was no requirement to prove [market definition or market

share] when there is evidence of anticompetitive intent." Dr.

Levine's interpretation of Bolt misses the point that our focus in

that opinion was only on the first element of the section 1

claim—whether there was sufficient evidence of a contract,

combination, or conspiracy to submit to the jury. 891 F.2d at 818,

829. We held that as to some of the defendants, there was

sufficient evidence of a conspiracy to go to the jury, and thus

remanded the case to the district court. All discussion of intent

in Bolt was in the context of its value as circumstantial evidence

of the existence of an agreement. Id. at 819-20. As to the second

element of the section 1 claim in Bolt, we explained that the

district court had granted a motion for directed verdict "before

[the plaintiff] reached that part of his case involving restraint

on competition." Id. at 829. We criticized the district court's

premature ruling and stated that "[t]he better course would have

been to defer ruling on the motions for directed verdict until

after [the plaintiff] had presented his entire section 1 case."

Id. at 828. If anything, Bolt is inconsistent with Dr. Levine's

position that he should be relieved of proving market power.

His reliance on Boczar is equally misplaced. In Boczar, we

reviewed the district court's grant of a post-verdict motion for

judgment as a matter of law in favor of the defendants based on its

finding that there was insufficient evidence of a conspiracy. We
reversed the district court and held that the plaintiff had

presented sufficient evidence to support the jury's verdict. 993

F.2d at 1519. As to the anticompetitive effect element of the

plaintiff's case, we simply observed—without discussing the

evidence that had been presented at trial—that the defendants'

actions had "effectively ended [the plaintiff's] ability to compete

and to practice ... and burdened her ability to compete generally."

Id. That was nothing more than a fact-specific observation that

the plaintiff in Boczar had proven anticompetitive effect. By

contrast, the record in this case establishes beyond legitimate

dispute that Dr. Levine's ability to compete and practice have

flourished. Nothing in Boczar supports his position that he need

not prove the defendants' market power.

In order to prevail in a rule of reason case, absent a

demonstrated adverse effect on competition, a plaintiff must define

the market and prove that the defendants had sufficient market

power to adversely affect competition. See Indiana Fed'n of

Dentists, 476 U.S. at 460-61, 106 S.Ct. at 2019. Because he has

offered no evidence defining the relevant product or geographic

market, and because he has not established ORHS's or Sand Lake

Hospital's market power, the district court properly granted

summary judgment to the defendant on this section 1 claim.

B. THE SECTION 2 CLAIMS

In Count 2 of his complaint Dr. Levine claimed that CFMA

monopolized, attempted to monopolize, and conspired with

Healthchoice, ORHS, and Sand Lake Hospital to monopolize the market

for physician medical services to Healthchoice enrollees in the
Orlando area in violation of section 2 of the Sherman Act.19 "The

offense of monopoly under § 2 of the Sherman Act has two elements:

(1) the possession of monopoly power in the relevant market and (2)

the willful acquisition or maintenance of that power as

distinguished from growth or development as a consequence of a

superior product, business acumen, or historic accident." United

States v. Grinnell Corp., 384 U.S. 563, 570-571, 86 S.Ct. 1698,

1704, 16 L.Ed.2d 778 (1966); see also T. Harris Young & Assocs.,

Inc. v. Marquette Elec., Inc., 931 F.2d 816, 823 (11th Cir.), cert.

denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991);

Austin v. Blue Cross & Blue Shield, 903 F.2d 1385, 1391 (11th

Cir.1990). "Monopoly power under § 2 requires, of course,

something greater than market power under § 1." Eastman Kodak, 504

U.S. at 480, 112 S.Ct. at 2090.

To establish a violation of section 2 for attempted

monopolization, "a plaintiff must show (1) an intent to bring about

a monopoly and (2) a dangerous probability of success." Norton

Tire Co. v. Tire Kingdom Co., 858 F.2d 1533, 1535 (11th Cir.1988).

To have a dangerous probability of successfully monopolizing
a market the defendant must be close to achieving monopoly
power. Monopoly power is "the power to raise prices to
supra-competitive levels or ... the power to exclude
competition in the relevant market either by restricting entry
of new competitors or by driving existing competitors out of
the market."

United States Anchor Mfg., 7 F.3d at 994 (quoting American Key

19
Section 2 provides that "[e]very person who shall
monopolize, or attempt to monopolize, or combine or conspire with
any other person or persons, to monopolize any part of the trade
or commerce among the several States, or with foreign nations,
shall be deemed guilty of a felony." 15 U.S.C.A. § 2 (West
1973).
Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1581 (11th Cir.1985)).

A claim for conspiracy to monopolize, on the other hand, does not

require a showing of monopoly power. Instead, a plaintiff proves

a section 2 conspiracy to monopolize by showing: "(1) concerted

action deliberately entered into with the specific intent of

achieving a monopoly; and (2) the commission of at least one overt

act in furtherance of the conspiracy." Todorov, 921 F.2d at 1460

n. 35.

Although Dr. Levine's complaint is somewhat ambiguous, it

appears that he is alleging all three types of

claims—monopolization, attempted monopolization, and conspiracy to

monopolize—only against CFMA. Healthchoice, ORHS, and Sand Lake

Hospital are each alleged only to have conspired to monopolize the

relevant market. Even assuming that Dr. Levine is alleging that

all four defendants are liable for all three section 2 claims, the

defendants are entitled to summary judgment as a matter of law.

Proof of monopoly power in the relevant market is the first

element of a monopolization claim, and proof that there is a

dangerous probability of the defendant successfully attaining

monopoly power is the second element of an attempted monopolization

claim. Dr. Levine's failure to adequately define the relevant

market, and his failure to prove that the defendants possessed or

were close to possessing monopoly power in that relevant market,

are fatal to his section 2 claims for monopolization and for

attempted monopolization. Moreover, as to his claim for conspiracy

to monopolize, Dr. Levine has presented no evidence that the

defendants possessed a specific intent to monopolize, which is the
first element of a conspiracy to monopolize claim, when they denied

him membership or when they suspended his staff privileges.

Because Dr. Levine has failed to establish a genuine issue of

material fact as to necessary elements of these section 2 claims,

we affirm the district court's grant of summary judgment in favor

of the defendants as to these claims.20
IV. CONCLUSION

The district court's grant of summary judgment in favor of the

defendants is AFFIRMED.

20
We also reject Dr. Levine's argument that the district
court erroneously granted summary judgment against him on his
state law antitrust claims. Florida's statute regulating
combinations in restraint of trade provides: "It is the intent
of the Legislature that, in construing this chapter, due
consideration and great weight be given to the interpretations of
the federal courts relating to comparable federal antitrust
statutes." Fla.Stat.Ann. § 542.32 (West 1988); see also All
Care Nursing Serv., Inc. v. Bethesda Memorial Hosp., Inc., 887
F.2d 1535, 1539 n. 1 (11th Cir.1989) (Tjoflat, J. concurring);
Ad-Vantage Tel. Directory Consultants, Inc. v. GTE Directories
Corp., 849 F.2d 1336, 1340 (11th Cir.1987) ("In applying this
provision, the Florida courts held that the Florida legislature
has, in effect, adopted as the law of Florida the body of
anti-trust law developed by the federal courts under the Sherman
Act. St. Petersburg Yacht Charters, Inc. v. Morgan Yacht, Inc.,
457 So.2d 1028 (Fla.App.1984). Thus, in analyzing this case, we
may, and indeed must, apply the federal precedent developed under
Section 2 of the Sherman Act."). Therefore, the district court's
grant of summary judgment on the state law antitrust claims was
proper for the same reasons its grant of summary judgment on the
federal antitrust claims was proper.