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Odom v. Lee (3/17/00) sp-5250

Notice:  This opinion is subject to correction before publication in the 
Pacific Reporter.  Readers are requested to bring errors to the attention 
of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 
99501, phone (907) 264-0608, fax (907) 264-0878.


	THE SUPREME COURT OF THE STATE OF ALASKA

DAVID M. ODOM, M.D.,		)
					)	Supreme Court No. S-7547
			Appellant,	)
					)	Superior Court No.
	v.				)	4FA-93-2901 CI
					)
HOI P. LEE, M.D., STEVE E.	)	O P I N I O N
MANCILL, M.D., JERRY A.		)
PERISHO, M.D., RANDALL K.	)	[No. 5250 - March 17, 2000]
McGREGOR, M.D., LAWRENCE W. 	)
STINSON, JR., M.D.,		)
					)
			Appellees.	)   
                              )


Appeal from the Superior Court of the State of 
Alaska, Fourth Judicial District, Fairbanks,
	Charles R. Pengilly, Judge pro tem.


Appearances: David M. Odom, M.D., pro se, 
Fairbanks.  Ronald L. Bliss, Bliss & Wilkens, 
Anchorage, for Appellees.


Before:  Compton, Chief Justice, Matthews, 
Fabe, and Bryner, Justices. [Eastaugh, 
Justice, not participating.]


COMPTON, Chief Justice.


I.	INTRODUCTION

Dr. David M. Odom and four other doctors (Defendant 
doctors) were parties to a contract for sharing an anesthesiology 
practice at Fairbanks Memorial Hospital.  Following a dispute with 
the Defendant doctors, Dr. Odom filed suit alleging damages for 
breach of contract, tortious interference with a contract right, 
conspiracy to restrain trade, and unfair trade practices.  Dr. Odom 
appeals pro se from the denial of his motions for continuance and 
to amend pleadings, and from the grant of summary judgment in favor 
of the Defendant doctors on all issues.  We reverse the summary 
judgment and remand for a jury trial.1  
II.	FACTS AND PROCEEDINGS
The parties to this litigation are all licensed 
physicians specializing in anesthesiology.  They hold staff 
privileges at Fairbanks Memorial Hospital (FMH).  They2  began 
sharing the anesthesia practice at FMH in 1989. 3 

The doctors had a contract among themselves, titled  
"Anesthesia Coverage Rules and Regulations"  (Rotation Agreement). 
This contract stated each doctor's responsibility to the others in 
fulfilling their agreement with FMH.   The agreement between the 
doctors collectively and FMH was titled "Fairbanks Memorial 
Hospital Anesthesiologist Agreement."  In it the doctors are 
denominated the Anesthesia Staff.  This agreement incorporated the 
terms of the Rotation Agreement.  Under this agreement, 
"[a]dditional anesthesia services added or staffing requirement 
changes due to increased rooms, services, etc. shall be by Joint 
Collaboration with the anesthesia staff."  Additionally, FMH agreed 
that it would "not solicit or recruit for the provision of 
anesthesia services during the period of this Agreement without 
first notifying the Anesthesia Staff."  The five doctors would 
provide twenty-four-hour-a-day anesthesia coverage to FMH.  Each 
doctor also had a separate contract with FMH that allowed the 
doctor to practice medicine at FMH.
Two of the doctors, Hoi P. Lee and Randall K. McGregor, 
had practiced anesthesiology in Fairbanks before the formation of 
the Rotation Agreement with the other doctors.  They owned 
Anesthesia Associates, Inc.  This corporation employed a staff of 
Certified Registered Nurse Anesthetists (CRNAs), who assisted the 
doctors in the operating room.
The Rotation Agreement set up a detailed rotation 
schedule among the doctors and among the CRNAs, and provided for 
modification of the schedule.  It also provided that if the doctors 
could not agree on a modification, the doctor wanting unscheduled 
time off was responsible for providing coverage during his absence. 
The doctors followed this procedure for approximately five years. 
     	The rotation schedule required the doctor in the "number 
one" position to supervise two operating rooms, each staffed by a 
CRNA.  The second, third, and fourth doctors in the rotation each 
worked in one operating room with no CRNA, and the fifth doctor was 
off-duty.  

This controversy had its genesis in CRNA Kay Wilson's  
refusal to follow Dr. Odom's instructions during a certain type of 
procedure.4    After the third incident with CRNA Wilson, Dr. Odom 
approached Dr. Lee about the problem.  He got no definitive 
response from Dr. Lee.
The specific precipitating event occurred on October 4, 
1993, when Dr. Odom was choosing rooms for the following day.  He 
realized he would be in the number one position on the rotation. 
 He intended to use the procedure CRNA Wilson had refused to help 
with in the past; CRNA Wilson was assigned to work with Dr. Odom 
that day.  Dr. Odom advised the surgical secretary that he would 
take only one operating room the following day, and that the second 
room and the CRNAs should be assigned to the number two doctor. 
Following this incident, the Defendant doctors sent a 
memo to the FMH Chief of Staff about the incident involving Dr. 
Odom.  The same day, the FMH Chief of Staff suspended Dr. Odom's 
staff privileges for twenty-four hours.  The Defendant doctors also 
met and decided to revoke their contract with Dr. Odom.  They 
notified Dr. Odom that they would exclude him from their new 
contract.  After FMH reinstated his staff privileges the following 
day, Dr. Odom could perform services at FMH only at the request of 
a patient or a particular physician.  He no longer received a share 
of the general anesthesiology practice at FMH.

Dr. Odom filed suit alleging damages for breach of 
contract, tortious interference with a contract right, conspiracy 
to restrain trade, and unfair trade practices.  The Defendant 
doctors accepted Dr. Odom back into the rotation approximately two 
months after the incident with CRNA Wilson, after he filed suit. 
After Dr. Odom's reinstatement in the rotation schedule, 
FMH began administrative proceedings to revoke his hospital 
privileges.  Dr. Odom's original attorney, Joseph Sheehan, had 
limited his representation of Dr. Odom to the suit against the 
Defendant doctors.  Mr. Sheehan specifically did not want to sue 
FMH or expand the suit to issues beyond the breach of the Rotation 
Agreement.  Because of this, Dr. Odom retained a different lawyer 
to represent him in the administrative proceeding before FMH during 
the first part of 1994.  In June 1994, following the administrative 
proceeding, FMH revoked Dr. Odom's hospital privileges.
Trial was set for April 1995.  In October 1994 Dr. Odom 
sought a continuance of the trial date because he needed additional 
discovery for his case against the Defendant doctors.  This was at 
a time when Dr. Odom already knew of his potential claims against 
FMH and its parent corporation, based on revocation of his 
privileges in June of that year.  The superior court granted his 
unopposed motion for continuance; a new trial date was set for 
January 1996.  The deadline for amending pleadings was September 
1995.

In July 1995 Mr. Sheehan formally informed Dr. Odom that 
he was withdrawing as Odom's counsel.  Dr. Odom attempted to find 
other counsel, but initially was unsuccessful.  In August the 
Defendant doctors filed a motion for summary judgment.  On 
September 19 the superior court granted Mr. Sheehan's motion to 
withdraw.  Dr. Odom sought and received a two-week extension of the 
deadline for his response to the summary judgment motion.  On 
October 2 he filed a pro se cross-motion for summary judgment. 
On October 20, Ray Brown, a partner in the law firm of 
Dillon & Findley, appeared for Dr. Odom.  He filed a motion to 
vacate the trial date and for a continuance.  At oral argument, Mr. 
Brown told the superior court that, if it granted the motion, his 
firm would represent Dr. Odom and be ready for trial in nine 
months.  The superior court denied the motion.  On October 7, Mr. 
Brown filed a motion to supplement his summary judgment briefing, 
and for a Rule 56(f) continuance.  The trial court denied this 
motion on November 15.  After the November 15 ruling Brown declined 
to represent Dr. Odom further. 
Following oral argument, in which Dr. Odom appeared pro 
se, the superior court granted summary judgment to the Defendant 
doctors on three of the four claims.  The court took the claim of 
tortious interference with contract under advisement, and 
considered two additional arguments that Dr. Odom had failed to 
raise.  The superior court then granted summary judgment to the 
Defendant doctors on this claim as well.  Dr. Odom appeals pro se 
the denial of the continuance and the summary judgment.5  

III.	DISCUSSION
A.	Breach of Contract
The superior court granted summary judgment to the 
Defendant doctors on all of Dr. Odom's breach of contract claims. 
 We review the superior court's decision de novo.  See Farmer v. 
State, 788 P.2d 43, 46 n.8 (Alaska 1990).  Dr. Odom is entitled to 
have the record reviewed in the light most favorable to him, and to 
have all reasonable inferences drawn in his favor.  See Metcalfe 
Invs., Inc. v. Garrison, 919 P.2d 1356, 1360 (Alaska 1996). 
There are three issues of material fact which the 
superior court should not have decided on summary judgment: (1) who 
committed the first material breach; (2) whether the Defendant  
doctors violated the covenant of good faith and fair dealing; and 
(3) whether the Defendant doctors had modified the contract, 
through course of dealing, to permit Dr. Odom's conduct.
1.	Materiality of the breach

Dr. Odom argues the superior court erred in holding that 
he breached the Rotation Agreement on October 4, 1993, by refusing 
to cover the second operating room staffed by CRNA Wilson.  Dr. 
Odom argues that the Defendant doctors breached the agreement first 
by requiring him to work with an inadequate CRNA and by ignoring 
his requests to resolve the situation that had developed with CRNA 
Wilson.  The superior court concluded that because the parties' 
responsibility to follow the rotation schedule was the foundation 
of the contract, Dr. Odom's breach was sufficient to excuse 
performance by the Defendant doctors.
The contract between the doctors specifically provided 
that each doctor had the responsibility for providing locum tenens 
coverage for his own absences.  Had Dr. Odom been on vacation and 
failed to arrange for coverage in his absence, the superior court 
would have been correct that Dr. Odom's breach was the first 
material breach.  The superior court concluded that because Dr. 
Odom was not excused from performance because of an emergency, and 
because he knew of his problem with CRNA Wilson, he could have 
provided locum tenens coverage during his absence.  However, this 
conclusion does not address the issue of fact raised by Dr. Odom, 
which is that he had no choice but to accept the CRNAs provided 
through Anesthesia Associates, Inc., and that Anesthesia 
Associates, Inc. had the responsibility to supervise them.6 

Dr. Odom argues that the Defendant doctors who had 
supervisory power over CRNA Wilson committed the first breach.  
When Dr. Odom notified Dr. Lee of the problem, Dr. Lee took no 
action.  Dr. Odom explained he expected that when he refused to 
take the two operating rooms it would force the Defendant doctors 
to meet with him and resolve the problem.  Instead the Defendant 
doctors met without Dr. Odom and excluded him from the contract. 
 
The answer to the question of who committed the first 
material breach depends on who had supervisory control over the 
CRNAs.  If it was the corporation owned by Drs. Lee and McGregor, 
it was their responsibility to solve the problem with CRNA Wilson. 
Although Anesthesia Associates, Inc. employed the CRNAs, 
the Defendant doctors claim that it is each doctor's responsibility 
to supervise the CRNA under his control.  The Defendant doctors 
admit the CRNAs are "nominally employed" by the corporation, and 
that the corporation withholds employment taxes from the nurses' 
paychecks.  Anesthesia Associates, Inc. billed each doctor for his 
use of the CRNAs and issued paychecks to the CRNAs.
The superior court questioned the parties about this. 
Based on the superior court's questions of Dr. Odom, the superior 
court apparently concluded that Dr. Odom was under no obligation to 
use CRNA Wilson and that he could have employed a different CRNA, 
or even gotten another doctor, outside the Rotation Agreement, to 
cover his other operating room.  This conclusion decides a genuine 
issue of material fact; whether Dr. Odom was obliged to use the 
CRNAs provided by Anesthesia Associates, Inc.

Several facts alleged by Dr. Odom support his argument 
that he had no choice but to work with the CRNAs provided by the 
corporation.  Dr. Perisho, one of the Defendant doctors, stated in 
an affidavit that after the incident between Dr. Odom and CRNA 
Wilson, the Defendant doctors told Dr. Odom, "if he would continue 
in the rotation under the terms of the original agreement, and work 
with the CRNA's as scheduled, he would be welcome back in the 
rotation."  This statement tends to shows that the Defendant 
doctors believed the Rotation Agreement required accepting the 
CRNAs provided.
Dr. Odom stated in his deposition that at the time the 
five doctors negotiated the initial Rotation Agreement, there was 
some concern about continued employment for the CRNAs that had been 
working with Drs. Lee and McGregor.  In his affidavit, Dr. Odom 
states that the CRNAs were retained to ensure that they would 
continue to have jobs and to protect Drs. Lee and McGregor's 
investment in their employees.
The Rotation Agreement itself also indicates that Dr. 
Odom did not have any choice but to use the CRNAs.  It provides for 
the CRNAs to provide replacements for themselves if they need time 
off, when they are scheduled to work.  It also provides for an 
alteration of the rotation for the doctors if all of the CRNAs are 
on vacation at the same time.  
Finally, in the memo written on the day of the incident 
with CRNA Wilson, the Defendant doctors indicated to the Chief of 
Staff that by refusing to supervise the CRNAs, Dr. Odom had failed 
to uphold the Rotation Agreement.  This tends to show the Defendant 
doctors believed that it was a provision of the Rotation Agreement 
to accept the CRNAs employed by Anesthesia Associates, Inc. 

Reviewing the facts in the light most favorable to Dr. 
Odom, he refused to handle two operating rooms when one room was 
staffed by a CRNA who had refused to cooperate with him during a 
Propofol Infusion.  He asked the surgical secretary, who had filled 
vacancies on the anesthesia rotation for five years, to ask the 
number two doctor on the rotation to assume responsibility for the 
second operating room.  He believed the matter could be resolved 
before the next time he was number one on the rotation and required 
to take both operating rooms.  Dr. Odom attempted to enlist the 
help of Dr. Lee in correcting CRNA Wilson and failed.  He believed 
his action of refusing to work with her would force a meeting to 
resolve the situation.   
Whether Dr. Odom's breach was the first material breach 
is a genuine issue of material fact, depending on who was 
responsible for supervising the CRNAs and whether Dr. Odom was 
obligated to work with them under the terms of the Rotation 
Agreement.  The superior court erred in granting summary judgment 
on this issue.
2.	Good faith

Dr. Odom argues that because he was acting in good faith 
in seeking to call the problem with CRNA Wilson to the attention of 
the Defendant doctors and to rectify the problem, that the 
Defendant doctors acted in bad faith by treating Dr. Odom's action 
as breach of contract.  On October 5 the Defendant doctors met 
without Dr. Odom and, without consulting him, they decided to 
exclude him from the Rotation Agreement.  The Defendant doctors' 
bad faith, Dr. Odom argues, is further evidenced by FMH reinstating 
his staff privileges in full after twenty-four hours.  In a memo 
the Defendant doctors sent to the Chief of Staff, they state that 
"[i]t is a further concern of the below signed that patient care is 
being jeopardized by Dr. Odom's professional practice of medicine." 
There is no indication whether that statement reflects their 
concern over Dr. Odom's refusal to follow the rotation, or whether 
there were other motives which caused them to contact the Chief of 
Staff about Dr. Odom's staff privileges at FMH.  The superior court 
should not have resolved by summary judgment the issue of whether 
the Defendant doctors acted in bad faith. 
3.	The course of dealing
Dr. Odom gave the superior court two examples of how the 
Rotation Agreement had been modified by a doctor's unavailability 
in the past.  One was a medical emergency where a doctor could not 
leave a patient to cover his assigned operating rooms, and the 
other was a health emergency where one doctor was too ill to take 
responsibility for his rooms.
The Defendant doctors argue that even if the course of 
dealing had changed or modified the Rotation Agreement terms for 
dealing with "unavailability," there is nothing to suggest that the 
course of dealing modification would cover a dispute over 
supervision of the CRNAs where Dr. Odom was clearly available.

The superior court concluded that any modification that 
may have been made to the Rotation Agreement reached only 
unexpected emergencies, and that there was no factual basis to 
conclude it was modified to authorize Dr. Odom's behavior.  It is 
true that Dr. Odom was available to cover both operating rooms, and 
that he elected not to because of his problems with CRNA Wilson. 
 However, Dr. Odom raised a question of fact whether it was 
reasonable for him to assume that he could cover his operating 
rooms in the manner that had been used before, if in fact he was 
obligated to use the CRNAs provided by Anesthesiology Associates, 
Inc.   Whether Dr. Odom's conduct was reasonable hinges on the 
resolution of who supervised the CRNAs and whether Dr. Odom had any 
other choice but to employ them under the terms of the Rotation 
Agreement.
B.	Tortious Interference with Contract
The superior court granted summary judgment on this issue 
from the bench.  The court concluded that the contract at issue was 
the one between the doctors and FMH.  The superior court concluded 
that there had been no breach of any obligation running to FMH. 
Based on the lack of breach, the superior court determined there 
could be no tortious interference with contract.
To establish a tortious interference with contract claim, 
Dr. Odom must show: (1) an existing contract between him and a 
third party; (2) the Defendant doctors' knowledge of the contract 
and intent to induce a breach; (3) breach; (4) wrongful conduct of 
the Defendant doctors which caused the breach; (5) damages; and (6) 
the Defendant doctors' conduct was not privileged or justified.  
See Geolar, Inc. v. Gilbert/Commonwealth Inc. of Michigan, 874 P.2d 
937, 940 (Alaska 1994).

Dr. Odom argues that the superior court was looking at 
the wrong contract.  Since there can be no tortious interference 
claim among parties to the same contract, the superior court should 
not have considered the contract between the doctors and FMH.  Dr. 
Odom is arguing that the Defendant doctors tortiously interfered 
with his contract for hospital privileges at FMH.  Those privileges 
were revoked for twenty-four hours after the Defendant doctors sent 
a letter to the Chief of Staff, informing him that Dr. Odom had 
"disrupted the smooth operation of the O.R. schedule" and 
disregarded the Rules and Regulations.
The Defendant doctors claim that Dr. Odom failed to raise 
this argument below.  Dr. Odom's complaint is not specific about 
which contract he is alleging was interfered with.  However, Dr. 
Odom did not have an opportunity to elaborate on this issue when 
the superior court ruled from the bench.  There is no prejudice to 
the Defendant doctors in considering the issue.
Dr. Odom's attempt to establish his claim of tortious 
interference was cut short when the superior court ruled from the 
bench, based on its apparent misunderstanding of which contract was 
at issue.  Dr. Odom should be allowed to develop this claim on 
remand.
C.	Antitrust/Unfair Trade Practices

 		In his complaint, Dr. Odom alleges conspiracy to restrain 
trade, in violation of AS 45.50.562,7  monopolization, in violation 
of 45.50.564, 8  and unfair trade practices, in violation of 
45.50.566. 9  

This court is guided by federal Sherman Act cases in 
construing the Alaska antitrust law.  See West v. Whitney-Fidalgo 
Seafoods, Inc., 628 P.2d 10, 14 n.6 (Alaska 1981).  Claims brought 
under AS 45.50.562 are also referred to as Sherman Act  1 claims; 
claims under AS 45.50.564 have been termed Sherman Act  2 claims. 
 Section 1 of the Sherman Act prohibits unreasonable restraints on 
trade.  See 15 U.S.C.  1 (1997); Business Elecs. Corp. v. Sharp 
Elecs. Corp., 485 U.S. 717, 723 (1988) (recognizing that  1 of the 
Sherman Act "was intended to prohibit only unreasonable restraints 
of trade").  Federal courts have interpreted this prohibition two 
ways: (1) under a per se rule, where certain activities are 
considered illegal, with no requirement to prove actual damage to 
competition, or (2) under the "rule of reason."  See Federal Trade 
Comm'n v. Indiana Fed. of Dentists, 476 U.S. 447, 457-58 (1986). 
 Dr. Odom's brief criticizes the superior court for applying "some 
nebulous 'rule of reason' not recognized in any authority on the 
subject."  The rule of reason has been uniformly adopted by federal 
courts, and there is a presumption in favor of applying this 
standard.  See Business Elecs. Corp. v. Sharp Elecs. Corp., 485 
U.S. 717, 726 (1988).  Under the rule of reason test "[a]fter the 
claimant has proven that the conspiracy harmed competition, the 
fact finder must balance the restraint and any justifications or 
pro-competitive effects of the restraint in order to determine 
whether the restraint is unreasonable."  Oltz v. St. Peter's 
Community Hosp., 861 F.2d 1440, 1445 (9th Cir. 1988).  A contract 
between a hospital and a group of anesthesiologists is not 
considered a per se violation of the Sherman Act.  See Jefferson 
Parish Hosp. v. Hyde, 466 U.S. 2 (1984).  The rule of reason thus 
applies to this case.

Sherman Act cases of this kind generally must be 
determined on the facts of each case.  See Maple Flooring Mfrs. 
Ass'n v. United States, 268 U.S. 563, 579 (1925).  This court has 
noted the United States Supreme Court's admonition that summary 
judgment should be used sparingly in antitrust litigation.  See KOS 
v. Alyeska Pipeline Serv. Co., 676 P.2d 1069, 1073 (Alaska 1983) 
(citing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 
(1962)).  When an antitrust plaintiff has established a prima facie 
case, he should have an opportunity to prove the necessary 
supporting facts at trial.  See id.  
To establish a prima facie case of unlawful restraint of 
trade Dr. Odom must initially prove three elements: "(1) an 
agreement or conspiracy among two or more persons or distinct 
business entities; (2) by which the persons or entities intend to 
harm or restrain competition; and (3) which actually injures 
competition."  Oltz, 861 F.2d at 1445.  Only after Dr. Odom proves 
these three elements is it incumbent upon the fact finder to 
"balance the restraint and any justifications or pro-competitive 
effects of the restraint in order to determine whether the 
restraint is unreasonable."  Id.  

An attachment to an affidavit Dr. Odom filed with his 
Verified Complaint, and re-filed in connection with the summary 
judgment proceedings, discloses that on the day Dr. Odom stated he 
would not work with CRNA Wilson until problems he perceived with 
her performance were resolved, Dr. Keith B. Gianni, Chief of Staff 
at FMH, summarily revoked Dr. Odom's hospital privileges, without 
prior notice.  This was done at the request of the Anesthesia 
Department, which consisted of the contract Anesthesia Staff, i.e., 
the Defendant doctors, that had the Anesthesiologist Agreement with 
FMH.  Their unverified memorandum to Dr. Gianni, which listed as 
its subject "Physician Behavior," stated no more than that "[Dr. 
Odom's] behavior has disrupted the smooth operation of the O.R. 
schedule and is in disregard of the Rules and Regulations, to which 
we have all agreed and signed."  In a similarly conclusory manner 
they state that "[i]t is further a concern of the below signed that 
patient care is being jeopardized by Dr. Odom's professional 
practice of medicine."  Apparently Dr. Gianni made no independent 
verification of the issues raised by the contract Anesthesia Staff. 
 The afternoon following the episode involving Dr. Odom's admitted 
refusal to work with CRNA Wilson, Dr. Perisho, Chairman of the FMH 
Department of Anesthesia, one of the contract Anesthesia Staff as 
well as a Defendant doctor, sent a memorandum to Dr. Odom.  The 
memorandum recites that he and Drs. Mancil, Lee, McGregor, and 
Stinson, who constituted the contract Anesthesia Staff under the 
Anesthesiologist Agreement with FMH, had met and decided that: 
1.	Dr. Odom has violated anesthesia contract 
[with FMH] and rules and regulations [of the 
Anesthesia Staff].

2.	The [Anesthesia Staff] wishes not to 
continue Dr. Odom as a party to the agreement 
[with FMH].

3.	Effective immediately Dr. David Odom will 
be an independent and solo practitioner with 
responsibility to maintain privileges 
according to the medical staff bylaws.  He may 
do cases on request both scheduled and 
emergency.  It should be understood that if 
Dr. Odom is not specifically requested, 
Anesthesia [S]taff as part of the 
[A]nesthesiologist [A]greement will provide 
the anesthesia services and follow the revised 
rules and regulations parallel to the past.

4.	Issues regarding quality assurance review 
and recommendations made to Dr. Odom must 
continue to be addressed by Dr. Odom.


The next day Dr. Gianni, Chief of Staff, sent Dr. Odom a memorandum 
in which Dr. Gianni stated that "[y]our summary suspension issued 
yesterday has expired and I have elected not to continue it."  The 
crisis that presumably had justified Dr. Odom's summary suspension 
without notice, and thus terminated Dr. Odom's responsibilities 
under the Anesthesiologist Agreement, had thus resolved.  However, 
Dr. Gianni also stated that "[y]ou have your former privileges in 
full; specifically, you may render anesthesia care when so asked by 
another physician or patient."
In his affidavit, Dr. Odom swears that:

After the meeting with the Defendants, I 
met with Gingerich to determine whether FMH 
would continue to allow me to practice and, 
more particularly, would the hospital provide 
me with a pro-rated portion of the anesthesia 
practice.  Gingerich advised me that my 
privileges at the hospital would remain valid, 
however, the hospital would not give me a pro-
rated portion of the anesthesia practice, 
since it had a contract with the Defendants. 
 Gingerich did indicate that if I was 
specifically name requested by a physician, 
hospital staff would permit the scheduling. 
The effect of Defendants' conduct was to 
eliminate my practice of medicine in 
Fairbanks.

According to this affidavit, Dr. Odom later sent a letter to 
Gingerich
requesting that I be permitted to continue 
sharing on a pro-rated basis in the anesthesia 
practice at FMH and that steps be taken to 
resolve the dispute between myself and the 
Defendants. . . .  Gingerich did not respond 
in writing to my correspondence, however, 
verbally he told me that he would not 
intercede and would not allow me a pro-rated 
portion of the anesthesia practice.  

In the same affidavit, Dr. Odom swears that:


The gross value of anesthesiology 
services provided at FMH is approximately 
Three Million ($3,000,000) Dollars per year. 
 In the past five years, surgeons have not 
been permitted to name request 
anesthesiologists.  Although this practice has 
changed, neither the surgeon nor the patient 
is advised that they have a choice of 
anesthesiologists, the names of the 
anesthesiologists, or the rates which each 
anesthesiologist charges.  Because of past 
practice and the present lack of information, 
almost all anesthesia will go to the 
Defendants because FMH does not provide or 
permit otherwise.  The Defendants have had a 
contract with FMH every year that I have been 
here, since 1989, except for 1991 and 1992.  
Despite not having a contract in 1991 and 
1992, the anesthesiologists continued the 
rotation system and pro-rated the anesthesia 
practice.  During these years, total gross 
revenues have been about the same -- meaning 
that each anesthesiologist receives 
approximately Five Hundred Thousand ($500,000) 
Dollars annually.  Since I am now precluded 
from the Anesthesia Agreement, my portion of 
these gross revenues (approximately Five 
Hundred Thousand ($500,000) Dollars) is being 
taken by the Defendants and divided among 
themselves -- essentially each of them picks 
up another One Hundred Thousand ($100,000) 
Dollars, at my expense.

The Defendant doctors argued to the superior court that 
the "Anesthesiologist Agreement at issue provided benefits to the 
community outweighing any concomitant restraint on commerce."  The 
superior court agreed, determining that the Anesthesiologist 
Agreement did not constitute a conspiracy in restraint of trade:

It's not clear to me, and it's not necessary 
to decision in this case, whether that 
contract -- now we're talking about again the 
contract between the [anesthesiologists] and 
FMH -- would be viewed as an anti-trust 
violation outside the context of this case.  
But the specific context of this case, that is 
contract for the provision of medical 
services, makes it pretty clear to me that no 
such violation occurred here, even colorably. 
 It's certainly in the public interest that 
the coverage that we're talking about here be 
provided reliably and constantly.   It's 
pretty clear that, given the rule of reason, 
there is no anti-trust violation even though 
there may have been some combination that 
somehow acted to restrict free trade and free 
competition in the area.

See Oltz, 861 F.2d at 1449 (noting that "[t]he rule of reason 
requires an evaluation of each challenged restraint in light of the 
special circumstances involved").
Viewing the record in the light most favorable to Dr. 
Odom, and drawing all reasonable inferences in his favor, a jury 
could find that the Defendant doctors had engaged in a conspiracy 
to restrain trade, had attempted to monopolize the anesthesiology 
practice at FMH, and had engaged in trade practices the effect of 
which was substantially to lessen competition or tended to create 
a monopoly in the anesthesiology practice at FMH.  Thus Dr. Odom 
has presented sufficient evidence to establish prima facie 
statutory causes of action against the Defendant doctors.
In briefing before this court, the Defendant doctors note 
that the rule of reason "requires an evaluation whether, under all 
the circumstances of the case, the restrictive practice imposes an 
unreasonable restraint on competition."  As noted, they argue that 
the public interest benefits flowing from the Anesthesiologist 
Agreement satisfy the rule of reason.

Dr. Odom has sworn that during a two-year interval there 
was no contract between the anesthesiologists and FMH, from which 
it could be inferred that any public interest benefits flowing from 
the contract, which largely consisted of the assurance of reliable 
and constant anesthesiology coverage at all times, could be 
achieved without a contract.  He also has sworn that it was the 
practice of FMH to prohibit surgeons from "name requesting" an 
anesthesiologist, a practice that had been replaced by the policy 
of simply not advising surgeons or patients that they could "name 
request" an anesthesiologist.  Balancing the restraint of 
competition against the public interest also is a question of fact 
to be determined by the jury.  It is not a determination to be made 
on summary judgment.   
IV.	CONCLUSION
The summary judgment is REVERSED and the case is REMANDED 
for further proceedings consistent with this opinion. 


Footnotes

1	In view of our reversal of the summary judgment, we need 
not address the denial of the motions for continuance and to amend 
pleadings.
2	A sixth doctor, Lawrence W. Stinson, joined the group 
later.
3	In 1991 and 1992, the sharing was not pursuant to the 
formal agreement with FMH later herein described. 
4 	The procedure CRNA Wilson refused to cooperate in is 
called Propofol Infusion.  This type of anesthesia is administered 
through the blood stream rather than through the respiratory 
system.  There is no dispute about Dr. Odom's use of this 
procedure.
5 	The other doctors point out in their briefing that Dr. 
Odom filed a second suit in Fairbanks superior court, Odom v. 
Fairbanks Memorial Hospital et al., Case No. 4FA-95-3001.  In that 
suit Dr. Odom raises claims similar to the ones included in this 
suit, but which stem from the administrative proceeding in which 
FMH revoked his staff privileges.  The other doctors are included 
among the fifteen defendants in that case.

That case is now on appeal to this court, docketed as 
Case No. S-8007.  We make no determination of the effect of our 
resolution of this case on the issues raised in that appeal.
6	There were three CRNAs employed by Anesthesia Associates, 
Inc. at the time of this dispute.  Dr. Odom requested the third 
CRNA replace Wilson on October 5.  However, the third CRNA was 
unavailable.
7 	AS 45.50.562 provides:
Every contract, combination in the form of 
trust or otherwise, or conspiracy, in 
restraint of trade or commerce is unlawful.
8 	AS 45.50.564 provides:

It is unlawful for a person to monopolize, or 
attempt to monopolize, or combine or conspire 
with another person to monopolize any part of 
trade or commerce.
9 	AS  45.50.566 provides:

It is unlawful for a person to . . . make a 
. . . contract for sale of . . . services, 
. . . on the condition, agreement, or 
understanding that the . . . purchaser will 
not use or deal in the . . . service of a 
competitor or competitors of the . . . seller, 
if the effect of the . . . contract for sale, 
or of the condition, agreement, or 
understanding may be substantially to lessen 
competition or tend to create a monopoly in 
any line of commerce.

	-10-	5250