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Odom v. Fairbanks Memorial Hospital (3/17/00) sp-5251

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-8007
			Appellant,	)
					)	Superior Court No.
	v.				)	4FA-95-3001 CI
					)
FAIRBANKS MEMORIAL HOSPITAL,	)	
LUTHERAN HEALTH SYSTEMS, INC.,)	O P I N I O N
WESTERN HEALTH NETWORK, INC.,	)
JAMES H. GINGERICH, SUSAN	)	[No. 5251 - March 17, 2000]
McLANE, LINDA SMITH, RONALD L.)
BLISS, HOI P. LEE, M.D.,	)
STEVE E. MANCILL, M.D.,		)
JERRY A. PERISHO, M.D.,		)
RANDALL K. McGREGOR, M.D.,	)
LAWRENCE W. STINSON, JR.,	)
M.D., ANESTHESIA ASSOCIATES,	)
INC., WILLIAM F. STODDARD,	)
M.D., DANNY R. ROBINETTE,	)
M.D.,					)
					)
			Appellees.	)
                              )


Appeal from the Superior Court of the State of 
Alaska, Fourth Judicial District, Fairbanks,
	Dale O. Curda, Judge.

Appearances: David M. Odom, M.D., pro se, 
Fairbanks, and James Forbes, James Forbes, 
P.C., Anchorage, for Appellant.  Howard A. 
Lazar, Delaney, Wiles, Hayes, Gerety & Ellis, 
Inc., Anchorage, and David L. White, White, 
Cummings & Longino, P.C., Phoenix, Arizona, 
for Fairbanks Memorial Hospital, Lutheran 
Health Systems, Inc., Western Health Network, 
Inc., James H. Gingerich, Susan McLane, Linda 
Smith, and Danny R. Robinette, M.D., 
Appellees.  Leroy J. Barker, Robertson, 
Monagle & Eastaugh, Anchorage, for Ronald L. 
Bliss, Hoi P. Lee, M.D., Steve E. Mancill, 
M.D., Jerry A. Perisho, M.D., Randall K. 
McGregor, M.D., Lawrence W. Stinson, Jr., 
M.D., Anesthesia Associates, Inc., and William 
F. Stoddard, M.D., Appellees.

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

COMPTON, Justice.
FABE, Justice, concurring in part and 
dissenting in part.


I.	INTRODUCTION
David M. Odom sued Fairbanks Memorial Hospital and 
various health care providers, asserting eleven separate claims for 
relief.  All of Odom's claims were dismissed for failure to state 
a claim upon which relief may be granted.  He seeks reversal on 
eight of the dismissed claims.  We reverse the superior court's 
order dismissing those eight claims.
II.	FACTS AND PROCEEDINGS
David M. Odom is a licensed physician.  He was employed 
by Fairbanks Memorial Hospital (FMH) as an anesthesiologist from 
1988 until his staff privileges were terminated in 1994.  FMH is 
the only full service civilian hospital in Fairbanks. 
Anesthesiologists employed by FMH enter into an agreement 
(Anesthesiologist Agreement) with FMH which provides that each 
party to the Anesthesiologist Agreement will get a pro-rated share 
of the anesthesia practice at FMH.
In December 1992 Odom informed FMH administrators of his 
intention to establish an outpatient surgery center.  It was Odom's 
announcement of his plans to open the Fairbanks Surgery Center 
(FSC), in potential competition with FMH, that Odom argues 
precipitated the events that resulted in the termination of his 
staff privileges.

In October 1993 Odom refused to work with nurse 
anesthetist Kay Wilson.  FMH suspended Odom's staff privileges for 
twenty-four hours and his rights under the Anesthesiologist 
Agreement were terminated.  Unable to exercise rights under the 
Anesthesiologist Agreement, Odom could get an anesthesiology 
assignment only if specifically requested by a patient or surgeon. 
His pro-rated share of the anesthesia work was distributed to the 
remaining five anesthesiologists.  In December 1993 Odom's rights 
under the Anesthesiologist Agreement were reinstated.
FMH continued to conduct an investigation into quality 
assurance issues surrounding Odom's medical practices that were 
raised by other anesthesiologists.  A Special Investigative 
Committee (SIC) was formed to investigate these issues.  Upon FMH's 
request for an opinion as to what should be done in regard to 
Odom's staff privileges, the American Medico-Legal Foundation 
(AMLF) recommended that Odom attend "extensive [Continuing Medical 
Education] or . . . repeat a period of anesthesia residency 
training."  SIC, however, recommended that FMH suspend Odom's staff 
privileges.
In June 1994 the FMH Executive Committee recommended to 
its Governing Board that Odom's staff privileges be suspended until 
the earliest of one of the following occurred:
1.	The request to the Governing Body 
that [Odom's] privileges be terminated is 
finally resolved; or


2.	The Executive Committee approves a 
written proposal from [Odom] that [his] 
privileges be exercised only when [he is] 
accompanied by and supervised by an 
anesthesiologist with appropriate 
qualifications; or

3.	[Odom] attend[s] further residency 
training or other proctored form of additional 
training which results in recommendations 
which satisfy the Executive Committee that [he 
has] identified and corrected the problems 
which have resulted in the substandard level 
of care reflected by the attached documents. 

On August 22, 1994, Odom entered a formal 
evaluation/retraining program at Loma Linda University Medical 
Center.  On September 10, while he was still in the retraining 
program, the Governing Board accepted the Executive Committee's 
recommendation to terminate Odom's medical staff membership and 
clinical privileges.  Odom was informed of his termination on 
September 27.  In compliance with 42 U.S.C.  11133, FMH reported 
to a national reporting system that Odom's staff privileges had 
been terminated.  The reasons given for Odom's termination were 
"Incompetence/Malpractice/Negligence."  Persons who are the 
subjects of such a report are allowed to comment on the report; 
Odom did so.  In his response, Odom alleged that the quality 
assurance investigation was a result of his announced intention to 
compete with FMH and that the information provided in the report 
was knowingly false.
Upon Odom's completion of the program at Loma Linda, he 
reapplied for staff privileges at FMH and was denied.  

Odom, pro se, brought suit against FMH, Lutheran Health 
System; Western Health Network; Former FMH Administrator James H. 
Gingerich; FMH Assistant Administrator Susan McLane; FMH Quality 
Assurance Manager Linda Smith; FMH attorney Ronald Bliss; medical 
doctors Hoi P. Lee, Steve E. Mancill, Jerry A. Perisho, Lawrence W. 
Stinson and William F. Stoddard; Anesthesia Associates, Inc.;1  and 
former Chief of the FMH Surgery Department, Danny R. Robinette 
(collectively FMH).  Odom alleged eleven claims for relief: (1) 
unreasonable restraint of trade; (2) group boycott; (3) attempted 
monopolization; (4) defamation; (5) breach of contract; (6) unfair 
trade practices; (7) tortious interference with prospective 
economic advantages; (8) intentional infliction of emotional 
distress; (9) denial of due process and equal protection; (10) 
claim for declaratory relief; and (11) permanent injunction.
The superior court granted FMH's motion to dismiss for 
failure to state a claim, pursuant to Alaska Rule of Civil 
Procedure 12(b)(6), dismissing all of Odom's claims.  It awarded 
FMH attorney's fees and costs in the amount of $7,220.30.  It 
awarded the doctors and Anesthesia Associates, Inc. attorney's fees 
and costs in the amount of $5,520.00.  Odom appeals the ruling as 
to eight of the eleven claims.  Odom also appeals the superior 
court's order granting attorney's fees.
III.	DISCUSSION
A.	Standard of Review

An order dismissing a complaint for failure to state a 
claim is reviewed de novo.  See Kollodge v. State, 757 P.2d 1024, 
1026 n.4 (Alaska 1988).  For a complaint to survive a Rule 12(b)(6) 
motion, the complaint need only allege a set of facts "consistent 
with and appropriate to some enforceable cause of action."  Linck 
v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983).  A complaint 
should be deemed sufficient, and a motion to dismiss denied, if 
"evidence may be introduced that will sustain a grant of relief to 
the plaintiff."  Id.  Because complaints should be liberally 
construed, "[m]otions to dismiss are viewed with disfavor and 
should rarely be granted."  Kollodge, 757 P.2d at 1026.
B.	The Superior Court Improperly Dismissed All of Odom's 
Claims Alleging That FMH Violated Alaska's Antitrust 
Statute, AS 45.50562-.596.
Odom alleges that FMH violated two separate provisions of 
Alaska's antitrust act, AS 45.50.562 and AS 45.50.564.  He raises 
three claims: (1) unreasonable restraint of trade,2  (2) group 
boycott,3  and (3) unlawful monopoly.4   We look to federal precedent 
when analyzing an antitrust claim.  See West v. Whitney-Fidalgo 
Seafoods, Inc., 628 P.2d 10, 14 (Alaska 1981) ("The legislature 
intended that Alaska courts would look to Sherman Act cases in 
construing the [antitrust] Act.").  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. 

1.	Odom alleged injury to competition overall, as is 
necessary for Odom to have standing to sue FMH for 
antitrust violations.

For a private litigant seeking treble damages to have 
standing, "[a] plaintiff must show not only the fact of injury from 
the alleged violation, but that the injury alleged is 'of the type 
the antitrust laws were intended to prevent and that flows from 
that which makes defendants' acts unlawful.'"  KOS v. Alyeska 
Pipeline Serv. Co., 676 P.2d 1069, 1073-74 (Alaska 1983) (quoting 
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 479 
(1977)).  Furthermore, the "plaintiff must demonstrate that the 
defendant's conduct was intended to or did have some 
anticompetitive effect beyond his own loss of business or the 
market's loss of a competitor."  KOS, 676 P.2d at 1074 (quoting 
California Computer Prods., Inc. v. International Bus. Machs. 
Corp., 613 F.2d 727, 732 (9th Cir. 1979)).  
Paragraphs 7 and 135 of Odom's complaint allege facts 
sufficient to establish standing to sue under Alaska's antitrust 
statute.5   

In a similar case, the United States Court of Appeals for 
the Ninth Circuit found that a doctor proved injury to competition 
and had standing to sue for having his medical staff privileges 
terminated.  See Pinhas v. Summit Health, LTD., 880 F.2d 1108 (9th 
Cir. 1989).  The doctor alleged that the "conspiracy was intended 
to boycott his attempts at providing patients with lower prices as 
a result of his ability to perform operations at a rate quicker 
than that of his competitors."  Id. at 1116.  The court held that 
Pinhas could prove injury to competition by showing "that his 
preclusion . . . substantially reduced total competition in the 
market."  Id.  Odom has alleged facts that, assuming them true, 
show that total competition of the Fairbanks market was reduced 
because of FMH's actions.  If the trier of fact finds, as Odom's 
complaint alleges, that termination of Odom's staff privileges 
financially incapacitated him so that he could not continue with 
his plans to open FSC, the competitive market for anesthesiology 
services in Fairbanks was harmed by FMH's action. 
2.	Odom alleged a prima facie case of unreasonable  
restraint of trade. 

To establish a prima facie case of unreasonable restraint 
of trade under AS 45.50.562, Odom must set forth facts which if 
proven would establish that "the defendants combined or conspired 
with an intent to unreasonably restrain trade."  Smith v. Northern 
Mich. Hosps., Inc., 703 F.2d 942, 949 (6th Cir. 1983).  Whether 
actions are tantamount to unreasonably restraining trade is 
determined by either the rule of reason test or the per se 
analysis.  The rule of reason test should be applied to Odom's 
termination of staff privileges to determine whether FMH's conduct 
was unreasonable.  See Miller v. Indiana Hosp., 843 F.2d 139, 144 
n.6 (3d Cir. 1988) ("[I]n a hospital staff privilege case in which 
the hospital defends on lack of professional ability, the rule of 
reason test would apply.").  To establish unreasonable restraint of 
trade under the rule of reason test, Odom must 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 v. St. Peter's Community Hosp., 861 
F.2d 1440, 1445 (9th Cir. 1988). 
Applying the rule of reason test, paragraphs 2, 7, and 
135 of Odom's complaint allege a prima facie case of unreasonable 
restraint of trade.  
3.	Odom alleged facts sufficient to state a claim that 
FMH engaged in a per se group boycott.
Group boycotts constitute per se violations of the 
Sherman Act  1, and Alaska's statutory equivalent, AS 45.50.562. 
 Id. at 1445 n.1 ("Group boycotts or concerted refusals to deal 
constitute per se categories . . . .").  The three characteristics 
which are "indicative of per se illegal boycotts [are]: (1) the 
boycott cuts off access to a supply, facility, or market necessary 
to enable the victim firm to compete; (2) the boycotting firm 
possesses a dominant market position; and (3) the practices are not 
justified by plausible arguments that they enhanced overall 
efficiency or competition."  Hahn v. Oregon Physicians' Serv., 860 
F.2d 1501, 1509 (9th Cir. 1988).  See also Northwest Wholesale 
Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 
284, 294-95 (1985). 
Paragraphs 3, 5, 50, and 52 of Odom's complaint allege 
facts sufficient to state a claim that FMH engaged in a group 
boycott.

4.	Odom alleged enough facts to state a claim for 
attempted monopolization.

Odom's final antitrust claim alleges that FMH violated 
AS 45.50.564. 6  
"'[A] prima facie case of attempt to monopolize is made 
out by evidence of a specific intent to monopolize "any part" of 
commerce, plus anti-competitive conduct directed to the 
accomplishment of that unlawful purpose.'"  West v. Whitney-Fidalgo 
Seafoods, Inc., 628 P.2d 10, 15 (Alaska 1981) (alteration in 
original) (quoting Greyhound Computer v. International Bus. Machs., 
559 F.2d 488, 504 (9th Cir. 1977)).  The court noted that "[t]he 
more market power that exists, the more likely it is that a given 
course of questionable conduct will suggest the existence of intent 
to monopolize."  Id.  
Paragraphs 3, 7, 15, and 25 of Odom's complaint 
sufficiently allege an attempt to monopolize claim.
C.	Odom Stated a Claim for Defamation.


A prima facie case of defamation requires the plaintiff 
to establish "(1) a false and defamatory statement; (2) an 
unprivileged publication to a third party; (3) fault amounting at 
least to negligence on the part of the publisher; and (4) the 
existence of either 'per se' actionability or special harm."  
French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996).  For a 
statement to be libel per se, "the words used must be so 
unambiguous as to be reasonably susceptible of only one 
interpretation -- that is, one which has a natural tendency to 
injure another's reputation."  Fairbanks Publ'g Co. v. Pitka, 376 
P.2d 190, 194 (Alaska 1962).  
Included in Odom's allegations of defamatory conduct is 
a claim that FMH defamed Odom in its reporting of the disciplinary 
action to the federally mandated National Practitioner Data Bank 
(Data Bank), a report FMH is required to make.  Although a health 
care entity that is complying with the federal reporting 
requirement, pursuant to 42 U.S.C.  11133(a)(1), is afforded a 
certain amount of immunity in reporting to the Data Bank, that 
immunity is limited.  42 U.S.C.  11137(c) provides that "No person 
or entity . . . shall be held liable in any civil action with 
respect to any report made under this subchapter . . . without 
knowledge of the falsity of the information contained in the 
report."  FMH, therefore, is immune from liability unless it had 
knowledge that the report was false.  

In our view "falsity" in this statute refers to a false 
report of the nature of or the stated reasons for the actions of a 
health care entity.  Thus in Brown v. Presbyterian Healthcare 
Services, 101 F.3d 1324, 1334 (10th Cir. 1996), a report was made 
to the Data Bank that Brown's obstetrical privileges had been 
suspended for the coded reasons "Incompetence/Mal-
practice/Negligence."  But the reason stated by the health care 
provider in the suspension order was that Brown had failed to abide 
by an agreement to consult in handling certain types of cases. 
Since the stated reason relied on by the health care provider did 
not necessarily match the stated reason reported to the Data Bank, 
the court concluded that a jury question was presented as to 
whether the report to the Data Bank was false and whether the 
defendant who had made the report knew it to be so.  That is not 
the situation here where the complaint and exhibits attached to the 
complaint demonstrate the facial truth of the report to the Data 
Bank -- that Odom was suspended for stated reasons expressed by FMH 
that fairly fell within the coded reasons.  The statutory privilege 
would be meaningless if it meant that one who accurately reported 
the stated reasons for a health care provider's action would 
nonetheless have to defend the underlying validity of the stated 
reasons.  Thus, to the extent that Odom's claim is based on the 
assertion that the stated reasons relied on by the health care 
provider were not those reported to the Data Bank, Odom's claim was 
properly dismissed.  
However, Odom's defamation claim asserts many 
communications other than the falsity of the stated reasons 
reported to the Data Bank.  To the extent that it does so it 
alleges a prima facie case of defamation.  Paragraphs 3, 5, 9, 50, 
and 146-150 of Odom's complaint allege a prima facie case of 
defamation.  
D.	The Order of Suspension Does Not Preclude Odom from Suing 
FMH for Breach of an Oral Contract.


Odom claims FMH breached an oral contract.  The contract, 
he alleges, resulted from statements made by defendant Ronald 
Bliss, on which Odom relied when he withdrew his request for an 
administrative hearing.  Odom's complaint alleges: 
On August 30, 1994 Defendant Bliss entered 
into a verbal agreement with [Odom's] attorney 
Burbank authorizing [Odom's] course of study 
at LLUMC as a remedy which if satisfactorily 
completed, would fulfill the June 2, 1994 
Order of Suspension and allow [Odom] to return 
to his practice at FMH.  Bliss and Burbank 
further agreed that in light of [Odom's] 
participation in the training program at Loma 
Linda that the FMH medical staff 
administrative hearing scheduled for November, 
1994 would not be required.

The alleged oral contract was made subsequent to Odom receiving the 
Order of Suspension,7  which listed three options the Executive 
Committee could take in relation to Odom's suspension.8 

The Order of Suspension, dated June 2, 1994 is clear; 
Odom's suspension was to continue until "the earliest of one [of 
three] events."  The existence of the Order of Suspension does not, 
however, preclude Odom from making a claim that there was a 
separate oral contract made and breached by FMH.  Whether an oral 
contract exists is an issue for the trier of fact and was 
improperly dismissed by the superior court.  See George v. Custer, 
862 P.2d 176, 178 n.3 (Alaska 1993) ("It is for the trier of fact 
to determine whether an oral contract exists and the contract's 
terms where the evidence conflicts."); B.B. & S. Constr. Co., Inc. 
v. Stone, 535 P.2d 271, 273 (Alaska 1975) ("Where the existence of 
an oral contract and the terms thereof are the points in issue and 
the evidence is conflicting, it is for the trier of the facts to 
determine whether the contract did in fact exist and, if so, the 
terms thereof.").
E.	Odom Stated a Claim for Violation of Alaska's Unfair 
Trade Practices Act.


Odom sought relief for violation of AS 45.50.471(a), 9  
(b)(7), (11) and (12). 10   Odom, as a private litigant, sued for 
violation of the Unfair Trade Practices Act pursuant to former 
AS 45.50.531. 11  "Two elements must be proved to establish a prima 
facie case of unfair or deceptive acts or practices under the 
Alaska Act: (1) that the defendant is engaged in trade or commerce; 
and (2) that in the conduct of trade or commerce, an unfair act or 
practice has occurred."  State v. O'Neill Investigations, Inc., 609 
P.2d 520, 534 (Alaska 1980).  "An act or practice is deceptive or 
unfair if it has the capacity or tendency to deceive.  Actual 
injury as a result of the deception is not required. . . .  All 
that is required is a showing that the acts and practices were 
capable of being interpreted in a misleading way."  Id. at 534-35 
(footnotes omitted).  
Paragraphs 3, 8, 15, 50, 73, 119, and 125 of Odom's 
complaint allege facts sufficient to state a claim under Alaska's 
Unfair Trade Practices Act.
F.	Odom Alleged Sufficient Facts to State a Claim that FMH 
Interfered with His Prospective Economic Advantage with 
the FSC.


The tort of intentional interference with prospective 
economic advantage is analyzed under the same rubric as the tort of 
intentional interference with contractual relations.  See Oaksmith 
v. Brusich, 774 P.2d 191, 198 (Alaska 1989).  The elements a 
plaintiff must prove when alleging intentional interference with a 
prospective economic advantage are:
[I]s [there] sufficient evidence that:  1) a 
prospective business relationship existed 
. . . 2) [the defendant] knew of the 
prospective relationship and intended to 
prevent its fruition, 3) the prospective 
business relationship did not culminate in 
pecuniary benefit to [the plaintiff], 4) [the 
defendant's] conduct interfered with the 
prospective relationship, 5) the interference 
caused [the plaintiff's] damages, and 6) [the 
defendant's] conduct was not privileged or 
justified. 

Id.  Under the theory of intentional interference with prospective 
economic advantage, "a person who is involved in an economic 
relationship with another, or who is pursuing reasonable and 
legitimate prospects of entering such a relationship, is protected 
from a third person's wrongful conduct which is intended to disrupt 
the relationship."  Ellis v. City of Valdez, 686 P.2d 700, 707 
(Alaska 1984). 

Odom alleges facts which if proven state a claim that FMH 
intentionally interfered with his prospective business relationship 
with FSC.  Odom alleges: (1) a prospective business relationship 
existed between him and the Fairbanks Surgery Center, Inc., a 
distinct and separate entity;12  (2) FMH knew of this relationship; 
(3) Odom has not been able to open the FSC because he was 
financially devastated when his staff privileges were terminated; 
(4) FMH intentionally interfered with his relationship with FSC by 
terminating his staff privileges; (5) terminating his staff 
privileges damaged him financially so as to be unable to open FSC; 
and (6) FMH's conduct was not privileged or justified. 
G.	The Superior Court Abused Its Discretion in Making the 
Threshold Determination that FMH's Conduct Was Not  
Outrageous and Odom Did Not Suffer Severe Distress.

The last claim Odom appeals is the dismissal of his claim 
for damages arising from intentional infliction of emotional 
distress. Odom alleges that the "[d]efendants' conduct 
intentionally inflicted extreme emotional distress upon [him]."
To establish a prima facie case of intentional infliction 
of emotional distress, the plaintiff must prove that the defendant 
"through extreme or outrageous conduct . . . intentionally or 
recklessly cause[d] severe emotional distress or bodily harm to 
another."  Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 
456 (Alaska 1985).  This court has stated that a trial judge 
"should make a threshold determination whether the severity of the 
emotional distress and the conduct of the offending party warrant 
a claim of intentional infliction of emotional distress."  Id.  A 
trial judge's threshold determination, should not be overruled by 
this court "absent an abuse of discretion."  Id.  

This court has held that liability for intentional 
infliction of emotional distress should only be found when "'the 
conduct has been so outrageous in character, and so extreme in 
degree, as to go beyond all possible bounds of decency, and to be 
regarded as atrocious, and utterly intolerable in a civilized 
community.'"  Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 
1016 (Alaska 1995) (quoting Oaksmith v. Brusich, 774 P.2d 191, 200 
(Alaska 1989)).  The conduct in which FMH allegedly engaged reaches 
the level of outrageousness necessary for Odom to state a claim for 
intentional infliction of emotional distress.  Paragraphs 3, 7, 8, 
35, 119, and 125 of Odom's complaint allege facts sufficient to 
state a claim of intentional infliction of emotional distress. 
IV.	CONCLUSION
Odom's complaint alleges facts which if proven are 
sufficient to state a claim for unreasonable restraint of trade, 
group boycott, attempted monopolization, defamation, breach of oral 
contract, unfair trade practices, interference with a prospective 
economic advantage, and intentional infliction of emotional 
distress.  Accordingly, we REVERSE the superior court's dismissal 
of these claims and its awards of attorney's fees to FMH and to the 
doctors and Anesthesia Associates, Inc.

FABE, Justice, concurring in part and dissenting in part.
I disagree with the court's view that Odom has alleged a 
prima facie case of defamation.  Although the court is correct in 
its determination that Fairbanks Memorial Hospital should not be 
liable for its report to the National Practitioner Data Bank, the 
court also concludes that "Odom's defamation claim asserts many 
communications other than the falsity of the stated reasons 
report[ed] to the Data Bank" and thus "alleges a prima facie case 
of defamation."  It is with this conclusion that I disagree.  
Odom's complaint contains a broad charge that FMH  
engaged in a pattern of communicating "false and fraudulent 
information against the Plaintiff" and avers that these 
communications "occurred on numerous occasions by United States 
mail, telephone, in person, and through other forms of fraudulent 
communications."  But the only specific instances of defamation 
described in the complaint are FMH's report to the National 
Practitioner Data Bank, which this court has disallowed as a basis 
for a claim of defamation, and Odom's own report of his predicament 
to insurance companies and lending institutions.  The question 
presented to the superior court in the motion to dismiss was 
whether these latter instances of "self-publication" could form the 
basis of a defamation claim.  The superior court decided that they 
could not, dismissing the defamation claim on the basis that "the 
statements were not false or defamatory because Odom had lost his 
hospital privileges.  Also, the statements were not concerning 
another, as Odom relayed the information about his predicament."

In his briefing before us on appeal, Odom does not 
contest the superior court's conclusion that "Odom has self-
published, which is not grounds for a defamation action."  Instead, 
he argues that FMH's transmission of information about his 
terminated privileges to the National Practitioner Data Bank forms 
the basis of his defamation claim:
[D]efendants have uttered and published 
false and defamatory statements about 
plaintiff in writing and, upon information and 
belief, orally, with respect to plaintiff's 
conduct, employment, career, and fitness to 
practice medicine. . . .

In support of this allegation, Odom 
alleged the following:

Gingerich sent notification of Odom's 
termination to the U.S. National Practitioner 
Data Bank as mandated by 42 U.S.C.  11111.  
Gingerich further characterized the reason for 
Odom's dismissal in this notification as 
"incompetence/malpractice/negligence."  This 
defamed Odom nationally to all future possible 
hospital practice positions.

(Emphasis in original.)

Odom has pointed to no other instance of defamation in 
his complaint1 or his briefing to this court.  The only issue that 
he has raised and discussed is the report to the National 
Practitioner Data Bank.  Because we resolve this issue against 
Odom, I disagree with the draft's conclusion that other claims of 
defamation survive.


	APPENDIX A

Odom's complaint reads in part:

2.	This action arises out of Defendants' combination and 
conspiracy to unlawfully restrain trade and harm competition 
in operating room services and anesthesiology services, 
combination and conspiracy to dominate the relevant market for 
operating room services and anesthesiological [sic] services, 
and group boycott, all having substantial and injurious 
effects upon interstate commerce.  This action also arises out 
of Defendants' open-ended and continuous pattern and scheme to 
defraud, discharge, defame and compete unfairly with Plaintiff 
in connection with Plaintiff's professional career in general, 
Plaintiff's professional affiliation with defendants in 
particular, Plaintiff's plans to develop an outpatient surgery 
center, which pattern and scheme involves multiple victims, 
including the general public, has already extended from at 
least October 5, 1992 to date, and threatens to continue. 


3.	As more fully set forth below, upon information and belief, 
defendant anesthesiologists Jerry A. Perisho, M.D., Hoi P. 
Lee, M.D., Randall K. McGregor, M.D., Steve E. Mancill, M.D., 
Lawrence W. Stinson, Jr., M.D., and William F. Stoddard, M.D., 
as well as Defendant Anesthesia Associates, Inc., with the 
knowledge, participation, and acquiescence of Defendants 
Fairbanks Memorial Hospital ("FMH" or the "Hospital"), 
Lutheran Health Systems ("LHS"), Western Health Network 
("WHN"), FMH Administrator James H. Gingerich, Assistant 
Administrator Susan McLane, FMH Quality Assurance Manager 
Linda Smith, attorney Ronald L. Bliss, Danny R. Robinette, 
M.D.[,] as well as with other unnamed co-conspirators, who 
include physicians within the Hospital, and with malice and 
intent to injure Plaintiff; (a) engaged in a pattern of 
conduct pursuant to which they improperly removed Plaintiff 
from the FMH medical staff in bad faith and reported this act 
to the United States National Practitioner Databank, thus 
preventing Plaintiff from pursuing his livelihood and 
practicing his specialty in any hospital[;] (b) fabricated 
false claims and exaggerated other claims against plaintiff on 
quality of care issues, used discriminatory criteria in 
quality of care determinations, and acted in secrecy to 
further their personal interests rather than those of the 
patients of the Hospital; (c) subverted the mandated Quality 
Assurance and Peer Review mechanisms, corrupted the Hospital 
medical and administrative processes and controls, violated 
the Hospital Medical Staff Bylaws; (d) concealed the real 
anti-competitive motives for discharging and replacing 
Plaintiff, communicated false and fraudulent information on 
repeated occasions within and outside FMH, within and outside 
the state, to, inter alia, medical staff, hospital 
administrators and state agencies regarding Plaintiff's 
performance; (e) caused Plaintiff to be discharged from the 
FMH medical staff by improperly influencing FMH Medical Staff 
procedures in bad faith[;] (f) fabricated additional 
allegations against plaintiff after his termination from the 
FMH medical staff in an attempt to further alter the record 
and give credibility to their actions. 

4.	The communication of false and fraudulent information against 
the Plaintiff occurred on numerous occasions by United States 
mail, telephone, in person, and through other forms of 
fraudulent communications and activities. 

5.	Acting under [the] color of Federal and State law, the 
Defendants also reported, maliciously and in bad faith, these 
false and fraudulent allegations as the purported basis for 
their action to other hospitals and State agencies, the U.S. 
National Practitioner Databank, and triggered a government 
investigation against Plaintiff.  This action was part of a 
successful effort to utilize a sham to exclude plaintiff from 
the medical staff of the Hospital, and from anesthesiological 
 [sic] practice throughout the State of Alaska and throughout 
the United States of America for anti-competitive purposes.

. . . .  

7.	Defendant FMH and Anesthesia Associates, Inc., Lee, McGregor, 
Perisho, Mancill, Stinson, and Stoddard achieved their anti-
competitive objective of maintaining monopoly status in a 
geographically isolated market area for both the Fairbanks 
Memorial Hospital and the contracted FMH anesthesiologists by 
successfully discouraging the development of a competing 
surgery center by financially incapacitating and ruining the 
reputation of its developer and promoter. 

8.	Such conduct has harmed and continues to harm and will 
continue to harm in the future both consumers of 
anesthesiology care and operating room services in the 
Fairbanks North Star Borough area. 
 

9.	Absent the successful development of a surgery center, 
Defendants have precluded Plaintiff from the operating room 
practice of anesthesiology at FMH or elsewhere by a fabricated 
and pretextual basis.  Defendants have maliciously, willfully 
and intentionally defamed plaintiff by fabricating instances 
of plaintiff's misconduct, exaggerating other claims against 
Plaintiff, and reporting such false and defamatory statements 
verbally and in writing to the U.S. National Practitioner 
Databank and to state regulatory authorities, all in 
furtherance of their scheme.

. . . . 

15.	Fairbanks Memorial Hospital ("FMH") is a non-profit hospital, 
located in Fairbanks, Alaska, is authorized to do business in 
Alaska, and is the only full service hospital in Alaska north 
of the Alaska (mountain) Range.

. . . .

25.	FMH is presently the sole civilian provider of operating room 
services in the Fairbanks market area.

. . . .
 

35.	As soon as FMH, LHS and WHN understood that Plaintiff Odom was 
or could become a competitive threat to FMH and its monopoly 
of operating room services, Defendant Gingerich conspired with 
Defendants Anesthesia Associates, Inc., Lee, McGregor, 
Perisho, and Mancill, and later with Defendants Stinson and 
Stoddard, all of whom share in a parallel monopoly for the 
provision of related services, to embark on a course of action 
to discredit Odom and ultimately to remove from him his 
livelihood, through impugning his medical competence.  Hence, 
FMH, WHN, LHS and the Defendants Anesthesia Associates, Inc., 
Lee, McGregor, Perisho, Mancill, Stinson, and Stoddard in 
complicity with Defendants Bliss, McLane, Smith, and Robinette 
sought to remove Odom's financial capacity in order to prevent 
him from pursuing development of the competing enterprise and 
to prevent him from seeking judicial redress. 

. . . .


50.	When the Defendants Anesthesia Associates, Inc., Lee, 
McGregor, Perisho, and Mancill learned of Odom's decision, 
they contacted the Chief of Staff of FMH, Keith Gianni, M.D., 
and requested that Odom's hospital privileges to practice 
medicine at FMH be immediately suspended, without notice or 
hearing.  Defendants Anesthesia Associates, Inc., Lee, 
McGregor, Perisho, and Mancill represented to Dr. Gianni that 
Odom's conduct was disruptive and impaired patient care.  
Defendants Anesthesia Associates, Inc., Lee, McGregor, 
Perisho, and Mancill also represented to Dr. Gianni that there 
were quality assurance issues which also warranted an 
immediate suspension of privileges.  Based on these 
representations, all of which were false, the Chief of Staff 
did, in fact, enter an emergency order suspending Odom's 
privileges to practice at FMH, effective immediately . . . .

. . . .

52.	Within twenty-four hours after requesting FMH's Chief of Staff 
to immediately suspend Odom's hospital privileges, Defendants 
Anesthesia Associates, Inc., Lee, McGregor, Perisho, Mancill, 
and Stinson met, in secret with FMH administrator Gingerich, 
FMH Outpatient Services administrator Susan McLane, and FMH 
Quality Manager Linda Smith, excluding Odom's participation, 
and agreed among themselves to:

(a)	preclude Odom from practicing anesthesiology at FMH 
under the terms and provisions of the 1993 
Anesthesia Agreement and future agreements;
(b)	preclude Odom from receiving a pro-rated share of 
the anesthesia practice at FMH;
(c)	disparage Odom's professional reputation by 
innuendo, accusations and false statements relative 
to Odom's professional competence, thusly 
preventing Odom from pursuing his outpatient 
surgery center project. . . .
(d)	missuse the peer review process to advance personal 
and corporate anti-competitive ends.

. . . .

73.	A set of accusations were prepared under the guidance of 
attorney Bliss.  These accusations deliberately exaggerated 
the severity of the purported incidents and mischaracterized 
and defamed Plaintiff.  Further, the Defendants exaggerated 
the severity of the incidents to justify their request to the 
Medical Staff Executive Committee for Formal Corrective 
Action.  Besides the five cases reviewed by the FMH Anesthesia 
Section quality assurance committee, the case informally 
resolved by Surgery Department QA committee in January, 1993 
is added in to make a total of six cases referenced in the 
final report. 

. . . .


113.	Gingerich sent notification of Odom's termination to the U.S. 
National Practitioner Data Bank as mandated by 42 USC 11111. 
 (NPDB process date 9/16/94) Gingerich further characterized 
the reason for Odom's dismissal in this notification as 
"incompetence/malpractice/negligence."  This defamed Odom 
nationally to all future possible hospital practice 
positions. . . . 

. . . . 

119.	In addition, Bliss made a mischaracterization of Odom's 
practice history.  Bliss made a blanket, false and 
unsubstantiated statement that nine locations of previous 
practice gave damning professional references.  All laudatory 
reports were intentionally omitted.  Bliss also made 
unsubstantiated intimations that where information was 
lacking, it was therefore also damning.  This false and 
misleading practice history was presented to the FMH 
Credentials Committee as well as the Ad Hoc Committee.  Bliss' 
statements were also a significant factor in the May 10, 1995 
rejection. 

. . . .

125.	The statements contained in these various communications were 
false and defamatory, and were uttered and published with 
malice, intent to injure plaintiff and his reputation and 
career, and with intent to restrain trade and monopolize the 
relevant market by injuring and impairing competition. 

126.	Upon information and belief, in addition to the writings 
referred to herein, defendants orally defamed plaintiff by 
uttering false and defamatory statements of the type alleged 
to prospective business partners, investors and others. 

. . . .

135.	The termination of plaintiff's staff privileges and membership 
at Fairbanks Memorial Hospital resulted in his exclusion from 
the practice of anesthesiology.  Plaintiff's capability to 
continue his surgery center project has been severely hampered 
by his loss of financial capacity and reputation.  If 
successful in preventing Plaintiff from completing his 
project, Defendants will have deprived many individual 
patients and referring physicians of access to alternative 
operating room services for a substantial period of time. 

. . . .

146.	Paragraphs 1 through 46 and 65 through 145 are repeated and 
realleged as if set forth in full herein.


147.	Defendants, as originators of the wrongful termination and 
withdrawal of privileges, and other defamatory conduct and 
statements set forth herein, knew that plaintiff would be 
compelled to disclose the contents of such conduct and 
statements to third parties in connection with applications 
for hospital medical staff privileges, malpractice insurance, 
membership in professional organizations, business loan 
applications, stock offerings, and related purposes.

148.	Plaintiff in fact has been compelled to disclose the 
defamatory conduct and statements made about him to third 
parties in connection with discussions for employment, 
malpractice insurance, licensing, business loans, and related 
purposes, and will be compelled to make further disclosures of 
this type in the future.

149.	The defamatory statements set forth herein were motivated by 
Defendants' malice, ill will, personal spite, or in the 
alternative by defendants' culpable recklessness or gross 
negligence. 

150.	By reason of the foregoing, Defendants have uttered and 
published false and defamatory statements about Plaintiff in 
writing and, upon information and belief, orally, with respect 
to Plaintiff's conduct, employment, career, and fitness to 
practice medicine, and have compelled Plaintiff to repeat 
Defendants' defamation to others in connection with his 
professional career, all damaging plaintiff.

	-23-	5251
	APPENDIX A


	APPENDIX A
	Page 6 of 6	5251

Footnotes:
 
1 	Anesthesia Associates, Inc. is an Alaska corporation 
owned and operated by anesthesiologists Lee and McGregor.  The 
corporation employs the certified registered nurse anesthetists 
(CRNAs) who work at FMH.  
2	"Every contract, combination in the form of trust or 
otherwise, or conspiracy, in restraint of trade or commerce is 
unlawful."  AS 45.50.562.
3 	This is considered a per se violation of AS 45.50.562.
4 	"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."  AS 45.50.564.
5 	Appendix A sets out the full text of the paragraphs of 
Odom's complaint needed to decide his appeal.
6 	"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."  AS 45.50.564.
7 	Odom's Order of Suspension is dated June 2, 1994.
8 	The three options the Executive Committee could take 
which were listed in the Order of Suspension are set out supra pp. 
3-4. 
9 	"Unfair methods of competition and unfair or deceptive 
acts or practices in the conduct of trade or commerce are declared 
to be unlawful."  AS 45.50.471(a).
10 	(b)	The terms "unfair methods of competition" 
and "unfair or deceptive acts or practices" 
include, but are not limited to, the following 
acts:

. . . .

(7)	disparaging the goods, services, or 
business of another by false or misleading 
representation of fact;

. . . .

(11)	engaging in any other conduct creating a 
likelihood of confusion or of misunderstanding 
and which misleads, deceives or damages a 
buyer or a competitor in connection with the 
sale or advertisement of goods or services;

(12)	using or employing deception, fraud, 
false pretense, false promise, 
misrepresentation, or knowingly concealing, 
suppressing, or omitting a material fact with 
intent that others rely upon the concealment, 
suppression or omission in connection with the 
sale or advertisement of goods or services 
whether or not a person has in fact been 
misled, deceived or damaged.

AS 45.50.471(b).
11 	(a) A person who suffers an ascertainable loss 
of money or property as a result of another 
person's act or practice declared unlawful by 
AS 45.50.471 may bring a civil action to 
recover actual damages or $200, whichever is 
greater.  The court may, in cases of wilful 
violation, award up to three times the actual 
damages sustained.  The court may provide 
other relief it considers necessary and 
proper.
  
Former AS 45.50.531(a).
12 	The Articles of Incorporation for the Fairbanks Surgery 
Center were recorded on March 9, 1994.  On September 18, 1995, the 
State of Alaska granted the Fairbanks Surgery Center a "Certificate 
of Need."


1	The paragraphs of the complaint cited by the court do not 
support its conclusion that Odom has alleged other defamatory 
statements. Paragraphs 146-150 contain the "self-publication" 
claims, and paragraphs 5 and 9 allege malicious reporting to the 
National Practitioner Data Bank.  Paragraphs 3 and 50 do not relate 
to defamation at all, instead alleging that the hospital wrongfully 
revoked his hospital privileges, "fabricat[ing] false claims and 
exaggerat[ing] other claims against [Odom] on quality of care 
issues."