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Howes v. Yankton Medical Clinic, P.C.

United States District Court, D. South Dakota, Southern Division

August 17, 2016

CONNIE HOWES, Individually and as Personal Representative of the Estate of TROY HOWES; Plaintiff,
v.
YANKTON MEDICAL CLINIC, P.C., and MICHAEL PIETILA, M.D.; Defendants.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Defendants, Yankton Medical Clinic, P.C. (YMC) and Michael Pietila, M.D., move the court for an order to dismiss Count 7 (Unlawful Tying in Violation of Section 1 of the Sherman Act) and Count 8 (Monopolization of Medical Specialist Care in Yankton County) of plaintiff’s complaint. Plaintiff, Connie Howes, resists the motion. Howes moves to amend her complaint.

         For the following reasons, the court grants the motion to amend the complaint and denies the motion to dismiss.

         BACKGROUND

         The facts as alleged in the proposed amended complaint are:

         YMC is a South Dakota corporation that provides medical services in Yankton, South Dakota. It is the only convenient location for many patients who require specialist care in Yankton County.

         Dr. Pietila is a licensed South Dakota pulmonologist and is employed by YMC. As a part of his duties at YMC, he has supervisory and management control over medical and office staff who provide care, medical information, and billing information to patients. He is also the Chief of Staff, Medical Director of ICU services at Avera Sacred Heart Hospital and a member of its executive board. The board makes privileging decisions for the hospital. Dr. Pietila and other physicians were sued on November 13, 2014-stemming from a privileging decision that allowed Dr. Alan Soosan, a felon using an alias, to perform unnecessary surgeries on patients. Dr. Soosan was named in dozens of other lawsuits alleging similar claims (Soosan Lawsuits). In response, on August 24, 2015, YMC terminated future medical care of any patients who had filed suit against YMC or any of its providers.

         Connie Howes is a resident of Yankton, South Dakota, and the Personal Representative of the Estate of Troy Howes. Connie was married to the decedent, Troy. On May 16, 2014, the Howes executed affidavits as witnesses against Dr. Soosan. Troy was treated at Avera Sacred Heart Hospital in April 2015 by Dr. Pietila for sleep apnea. On May 5, 2015, Troy again saw Dr. Pietila for sleep apnea at YMC. Dr. Pietila prescribed a BiPAP machine to assist Troy in breathing during sleep. A follow-up visit was scheduled on August 3, 2015, but Troy and Connie were unable to make it due to a death in the family. Troy’s insurance provider required a follow-up visit for continued use of the BiPAP machine.

         Connie attempted to reschedule the missed appointment, but YMC would not allow her to do so. YMC told Connie that Troy had to pay the entire outstanding account balance before an appointment would be scheduled. Connie explained that she and Troy had an agreement with YMC to pay $20 per month towards the account balance while Troy continued to receive treatment and that they had made their payments. Connie also showed the representative Troy’s Medicare and Medica cards that would cover his visit. YMC still refused to schedule an appointment. After discussing the situation with Troy, Connie called Dr. Pietila to sort out the situation, but she did not reach him. Troy’s condition deteriorated from his stress over the lack of access to treatment. He died on September 22, 2015.

         Connie alleges that YMC’s and Dr. Pietila’s refusal to treat Troy was an intimidation tactic in response to their affidavits in the Soosan Lawsuits. In addition, YMC has a monopoly on pulmonology services in the Yankton area and used that power to intimidate Connie, Troy, and other patients.

         Other patients are proposed plaintiffs. Mary Weibel was denied care at YMC due to her lawsuit against Dr. Soosan. Timothy and Judy Bockholt, residents of Nebraska, similarly were denied care at YMC after suing Dr. Soosan. Clair Arens, a Nebraska resident, was also denied care at YMC due to her lawsuit against Dr. Soosan. Finally, Dianne Arens, resident of Nebraska, was denied care at YMC because she too sued Dr. Soosan.

         Howes filed her complaint in state court on October 13, 2015, alleging causes of action for negligent infliction of emotional distress, intentional infliction of emotional distress, tortious interference with a business relationship, breach of contract, breach of fiduciary duty, conspiracy, unlawful tying in violation of section 1 of the Sherman Act, and monopolization of medical specialist care. Docket 1. Defendants removed the action to the United States District Court for the District of South Dakota, Southern Division on November 12, 2015. Docket 1. Defendants then moved to dismiss Count 7 (Unlawful Tying in Violation of Section 1 of the Sherman Act) and Count 8 (Monopolization of Medical Specialist Care in Yankton County). Docket 5. Howes sought leave to amend the complaint to add new plaintiffs on February 25, 2016. Docket 33.

         DISCUSSION

         I. MOTION TO ...


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