     13-3426-cv
     Bhanusali v. Orange Reg’l Medical Ctr.
 1
 2                           UNITED STATES COURT OF APPEALS
 3                               FOR THE SECOND CIRCUIT
 4
 5                                         SUMMARY ORDER
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL
 8   EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
 9   JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
10   OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
11   32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
12   WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
13   APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
14   “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST
15   SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
16
17         At a stated term of the United States Court of Appeals for the Second
18   Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
19   Square, in the City of New York, on the 16th day of July, two thousand fourteen.
20
21          PRESENT: GUIDO CALABRESI,
22                           GERARD E. LYNCH,
23                           RAYMOND J. LOHIER, JR.,
24                                   Circuit Judges.
25          ------------------------------------------------------------------
26          GOVINDLAL K. BHANUSALI, M.D.,
27          GOVINDLAL K. BHANUSALI, M.D., PC,
28
29                                            Plaintiffs-Appellants,
30
31                                  v.                                           No. 13-3426-cv
32
33          ORANGE REGIONAL MEDICAL CENTER,
34          domestic nonprofit organization, CRYSTAL RUN
35          HEALTHCARE LLP, BOARD OF DIRECTORS
36          OF THE ORANGE REGIONAL MEDICAL
37          CENTER, HAL D. TEITELBAUM, M.D.,
38          individually and as Chief Executive Officer of
39          Crystal Run Health Care, SCOTT BATULIS,
40          individually and as President and Chief
41          Executive Officer of Orange Regional Medical
 1         Center, GREGORY SPENCER, M.D., individually
 2         and as Chairman of Staff and as Chairman of the
 3         Medical Executive Committee at Orange Regional
 4         Medical Center, GERARD J. GALARNEAU,
 5         M.D., individually and as Chief of Staff at Orange
 6         Regional Medical Center, JAMES E. OXLEY, D.O.,
 7         individually and as Vice President Medical
 8         Affairs/Medical Director of Orange Regional
 9         Medical Center, KEVIN TRAPP, M.D.,
10         individually and as the Department Chair of
11         Orthopedics at Orange Regional Medical Center,
12         CHRISTOPHER INZERILLO, M.D., individually
13         and as the Vice Chair of the Orthopedics
14         Department at ORMC, LOU HEIMBACH aka
15         Lou Heimbach, M.D.,
16
17                                          Defendants-Appellees.
18         ------------------------------------------------------------------
19
20         FOR APPELLANTS:                  Seth Marcus, Leffler Marcus & McCaffrey LLC,
21                                          New York, NY.
22
23         FOR APPELLEES:                   Douglas P. Catalano, Neil G. Sparber, and
24                                          Samantha E. Beltre, Fulbright & Jaworski LLP,
25                                          New York, NY, for Orange Regional Medical
26                                          Center, Board of Directors of the Orange Regional
27                                          Medical Center, Lou Heimbach, Scott Batulis,
28                                          Gerard J. Galarneau, M.D., and James E. Oxley,
29                                          D.O.
30
31                                          Michelle E. Phillips and Michael L. Abitabilo,
32                                          Jackson Lewis P.C., White Plains, NY, for Crystal
33                                          Run Healthcare LLP, Hal D. Teitelbaum, M.D.,
34                                          Christopher Inzerillo, M.D., Gregory Spencer,
35                                          M.D., and Kevin Trapp, M.D.
36


     
      The Clerk of the Court is directed to amend the caption of this case as set forth
     above.
                                                        2
 1         FOR AMICI CURIAE          Andrew J. Schlafly, Esq., Far Hills, NJ.
 2         ASSOCIATION OF
 3         AMERICAN
 4         PHYSICIANS AND
 5         AMERICAN
 6         ASSOCIATION OF
 7         PHYSICIANS OF
 8         INDIAN ORIGIN:
 9         Appeal from a judgment of the United States District Court for the
10   Southern District of New York (Cathy Seibel, Judge).
11         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the judgment of the District Court is AFFIRMED in part
13   and VACATED and REMANDED in part.
14         Plaintiffs-appellants Govindlal K. Bhanusali, an Asian Indian-American
15   orthopedic surgeon, and Govindlal K. Bhanusali, M.D., P.C. (collectively,
16   “Bhanusali”) allege that Orange Regional Medical Center, Crystal Run Health
17   Care LLP, and various individual doctors affiliated with those entities
18   (collectively, “defendants”) conspired in a “sham peer review” to deny Bhanusali
19   promotion, advancement opportunities, medical privileges, and clinical
20   contracts. On appeal Bhanusali argues that the District Court erred in granting
21   defendants’ motion to dismiss his antitrust and employment discrimination
22   claims. We assume the parties’ familiarity with the facts and record of the prior
23   proceedings, to which we refer only as necessary to explain our decision to
24   affirm in part and vacate and remand in part.
25         Bhanusali first argues that he adequately pled an “antitrust injury” as
26   required to establish antitrust standing. Assuming arguendo without deciding
27   that Bhanusali has antitrust standing under § 1 of the Sherman Act, we agree
28   with the District Court’s determination that his allegations of harm to the
29   marketplace and the existence of defendants’ conspiracy to engage in an
                                              3
 1   “unlawful group boycott” are conclusory and implausible.
 2         However, the District Court did err in dismissing Bhanusali’s claims of
 3   discrimination at the motion to dismiss stage. Bhanusali alleged that he received
 4   peer reviews or was disciplined for surgeries that resulted in neither patient
 5   complaints nor negative patient outcomes. In comparison, he alleged that
 6   younger, white physicians at the same medical facility who engaged in conduct
 7   that caused significantly worse outcomes for patients, including death, avoided
 8   any peer review or discipline. On a motion to dismiss, drawing all reasonable
 9   inferences in Bhanusali’s favor, we conclude that these allegations suffice to
10   plausibly support an inference of discrimination.
11         We have considered Bhanusali’s remaining arguments and conclude that
12   they are without merit. For the foregoing reasons, the judgment of the District
13   Court is AFFIRMED in part and VACATED and REMANDED in part.
14

15                                         FOR THE COURT:
16                                         Catherine O=Hagan Wolfe, Clerk of Court
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