United States District Court, D. South Dakota, Southern Division
CONNIE HOWES, Individually and as Personal Representative of the Estate of TROY HOWES; Plaintiff,
YANKTON MEDICAL CLINIC, P.C., and MICHAEL PIETILA, M.D.; Defendants.
MEMORANDUM OPINION AND ORDER
E. SCHREIER, UNITED STATES DISTRICT JUDGE
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
following reasons, the court grants the motion to amend the
complaint and denies the motion to dismiss.
facts as alleged in the proposed amended complaint are:
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.
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.
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.
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.
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.
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.
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.
MOTION TO ...