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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sisters of Providence in Washington v. A.A. Pain Clinic, Inc. (12/19/2003) sp-5764

Sisters of Providence in Washington v. A.A. Pain Clinic, Inc. (12/19/2003) sp-5764

     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,


WASHINGTON, d/b/a PROVIDENCE       )    Supreme Court No. S-10390
HOSPITAL, ANCHORAGE, a Washington  )
nonprofit corporation, and PROVIDENCE   )
GROUP,                             )
               Appellants,              )
     v.                            )
A.A. PAIN CLINIC, INC., an Alaska       )
corporation, MICHAEL T. BORRELLO,  )
CLINIC, LLC,                       )
               Appellees.               )

A.A. PAIN CLINIC, INC., and             )
MICHAEL T. BORRELLO, M.D.,         )    Supreme Court No. S-10419
               Cross-Appellants,        )
                                   )    Superior Court No.
     v.                            )    3AN-98-4312 CI
HOSPITAL, ANCHORAGE, a Washington  )    O P I N I O N
nonprofit corporation, PROVIDENCE       )
GROUP, and ALASKA PAIN             )
MANAGEMENT CLINIC, LLC,       )    [No. 5764 - December 19, 2003]
               Cross-Appellees.         )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Rene J. Gonzalez, Judge.

          Appearances:   John  A. Treptow,  Jeffrey  J.
          Jarvi,  Dorsey & Whitney LLP, Anchorage,  for
          Appellants  and Cross-Appellees.  Richard  W.
          Maki,  David  H.  Shoup,  Tindall  Bennett  &
          Shoup,  Anchorage, for Appellees  and  Cross-
          Appellants  A.A.  Pain  Clinic,   Inc.,   and
          Michael T. Borrello.

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

          MATTHEWS, Justice.

           Sisters  of Providence in Washington, d/b/a Providence

Hospital  Anchorage  ("Providence"), entered  into  an  exclusive

contract with Providence Anchorage Anesthesia Medical Group ("the

Group")  for  chronic pain management services.   Leon  Chandler,

M.D., and Michael Borrello, M.D., are anesthesiologists who  were

excluded  by  the contract and claim to have been harmed  by  it.

They  sued for anti-competitive conduct and received a jury award

that  was  in  part  set  aside by the trial  court.   This  case

involves  a number of challenges to the verdict and to the  trial

court's rulings.


           The following facts appear to be uncontested.  In 1989

Dr.  Leon Chandler launched A.A. Pain Clinic, Inc. ("A.A. Pain")1

to  devote more of his practice to pain management.2  Within  the

relevant  time  periods  Chandler  has  also  had  medical  staff

privileges at Providence.

           On August 25, 1992, Providence and the Group finalized

an  agreement   ("1992 exclusive") granting the  Group  exclusive

rights  to  provide "anesthesia services" at Providence  for  two

years.  The 1992 exclusive defined "anesthesia services" as  "the

practice  of  medicine dealing with the management of  procedures

for  rendering a patient insensitive to pain and emotional stress

during surgical, obstetric, and other medical procedures and  the

support  of  life  functions under the stress of  anesthetic  and

surgical  procedures."   Nothing in the contract  indicated  that

chronic  pain management and treatment, as opposed to acute  pain

treatment,  was  within  its range of services  -  a  possibility

previously considered but apparently not adopted by the Group.

           In  April  1994 the Group hired Dr. James Laidler,  an

anesthesiologist trained in chronic pain management.  Also around

that  time,  the  Group opened up its own chronic pain  treatment

facility, the Alaska Pain Management Clinic, LLC ("APMC").

           Providence  and  the Group renewed and  amended  their

exclusive contract in 1994 ("1994 exclusive"), for the first time

including  "pain  management" within  the  professional  services

definition.  Also new to this definition was a provision stating,

"[n]otwithstanding the above, this agreement is not  intended  to

reduce or limit the existing practice of Dr. Leon Chandler."

            Though  expressing  concerns  about  the  impact  the

exclusive would have on his practice, Chandler chose not to  join

the Group before or after either the 1992 or 1994 exclusive.   He

did  however communicate his concerns in at least two letters  in

1994  to  Dr.  Michael Norman, Chief of Anesthesia Department  at

Providence, and a prominent shareholder of the Group.   In  those

letters  Chandler asked for an assurance in writing  which  would

delineate his established privileges at the hospital, as  it  was

his understanding that he was being "grand-fathered in to do pain

management at Providence."  He also inquired about the  privilege

status  of  his colleague, Dr. Swift, suggesting that  Swift  was

needed  to cover any problems that might arise when Chandler  was

out of town.

           In  January  1995 Providence and the  Group  signed  a

"Letter  of  Understanding," indicating that it  came  in  direct

response  to  questions raised by Chandler:   "He is specifically

concerned  about  whether his privileges are  being  reduced  and

whether  he  will  be able to obtain coverage  for  his  patients

during  his absence."  The Letter of Understanding purported  not

to  affect  Chandler's  existing  privileges  at  Providence  and

further stated that doctors having "the appropriate medical staff

privileges"  would  be allowed to cover for Chandler  during  his


           In  August  1995 A.A. Pain hired anesthesiologist  Dr.

Michael  Borrello.   Borrello immediately  applied  for  clinical

privileges  for  both anesthesia and pain management  at  several

hospitals, including Providence.  Providence granted him  limited

privileges confined to covering Chandler's patients when Chandler

was out of town.

           Meanwhile, APMC had problems retaining the services of

its chronic pain management physicians and twice had to shut down

operations  for  lack of specialists.  During the  closures  some

pain management patients were referred to Chandler.

           In  February 1998 Chandler's patient S.H., a "more  or

less" comatose woman suffering from severe spasticity, required a

treatment  intended  to  reduce her condition.   Because  he  was

leaving  on  vacation  the next day, Chandler  referred  S.H.  to

Borrello.   Borrello scheduled the procedure at  Providence,  but

because  Chandler  had  by  that  time  returned  from  vacation,

Providence canceled the procedure in response to objections  from

the  Group's  Dr.  Norman.   Chandler  (through  A.A.  Pain)  and

Borrello immediately filed a complaint together with a motion for

a  temporary restraining order.  The motion was granted  and  the

procedure  was performed at Providence after at least  a  one-day

delay.   The  initial complaint was then twice amended,  pleading

the claims that are the subject of this appeal.

           In  October 1998 Providence and the Group removed  the

clause  regarding  chronic pain management from  their  exclusive

contract, and since November 1, 1998, both Borrello and  Chandler

have had full privileges at the hospital.


            Borrello   and  Chandler  (through  his  professional

corporation A.A. Pain Clinic, Inc. ("Chandler")) sued Providence,

the Group and APMC for various types of anti-competitive conduct.

Their   amended   complaint  included  common  law   claims   for

intentional    interference   with   a   contract,    intentional

interference  with  prospective  economic  advantage,  breach  of

contract,  and breach of the implied covenant of good  faith  and

fair dealing.  They also pleaded two state anti-trust claims, one

for unreasonable restraint of trade in violation of AS 45.50.562,

and   one  for  attempted  monopolization  in  violation  of   AS


           A  jury  trial ensued.  On a special verdict form  the

jury  reached  a  verdict  that was generally  favorable  to  the

plaintiffs.   The jury found that the defendants had unreasonably

restrained  trade and that as a result Chandler had been  damaged

in  the sum of $44,958 by Providence and in the sum of $89,916 by

the Group.  The jury found that Chandler had not been damaged  by

APMC by an unreasonable restraint of trade, and that Borrello had

not  been  damaged  by  any of the defendants  by  reason  of  an

unreasonable  restraint of trade.  The jury also  found  that  at

least  one  of  the  defendants  had  engaged  in  predatory   or

exclusionary  conduct with a specific intent to achieve  monopoly

power,  but there was no probability that such a defendant  would

achieve  its goal of monopoly power in the relevant  market.   In

view of this, the jury did not assess damages under the attempted

monopolization claim.

           As  to the tort claims, the jury found that all  three

defendants  had intentionally interfered with a contract  between

Chandler  and patient S.H.  The jury also found that  the  Group,

but  not  APMC,  had  intentionally interfered  with  a  contract

between  Borrello and Providence.  As to the claim of intentional

interference with prospective economic advantage, the jury  found

that  only  the Group had intentionally interfered with  Chandler

and  Borrello's prospective economic advantages.  Three  contract

claims  were presented.  The jury found Providence did not breach

its  medical staff agreement with Borrello, nor did it breach the

covenant  of  good  faith and fair dealing  in  a  contract  with

Borrello.   The jury found that Providence breached the  covenant

of good faith and fair dealing in a contract with Chandler.

           The  jury  assessed damages on the tort  and  contract

claims  as  follows:   in favor of Chandler  against  Providence,

$292,480;  in  favor of Chandler against the Group, $292,480;  in

favor  of  Chandler against APMC, $146,240; in favor of  Borrello

against the Group, $365,600.

           Subsequent  to  the verdict the defendants  moved  for

judgment  notwithstanding the verdict  ("j.n.o.v.").   The  court

granted  their  motion in part.  Specifically, the court  granted

j.n.o.v. as to the award of $292,480 in favor of Chandler against

Providence  for  breach of the covenant of good  faith  and  fair

dealing.   The  court concluded that there was no  evidence  that

A.A.  Pain, as distinct from Chandler personally, had a  contract

with   Providence.   That  same  damages  award   also   included

Chandler's  successful claim against Providence  for  intentional

interference with the S.H. contract.  The superior court  vacated

this  claim  as  well  because it found  that  Chandler  had  not

presented  any  evidence  as to the monetary  loss  arising  from

interference with this contract.  For the same reason, the  court

also  granted  j.n.o.v. on the verdict for Chandler against  APMC

for  $146,240  for  intentionally interfering with  the  contract

between  Chandler and S.H.  But the court did not grant  j.n.o.v.

as  to  Chandler's  $292,480 award against  the  Group  based  on

intentional interference with the S.H. contract.  The court found

that even though this particular claim lacked evidentiary support

as  to damages, the monetary award also included Chandler's claim

against  the  Group  for interference with  prospective  economic

advantage and adequate evidence supported the award in  full  for

this latter claim.

          Ultimately, final judgment was entered as follows:

         Chandler  against  Providence  -  $44,958  in  antitrust
          damages, trebled to $134,874.
               Chandler  against the Group - $89,916 in antitrust
          damages, trebled to $269,748.
               Chandler  against  the Group -  $292,480  in  tort
          damages  for  intentional interference with prospective
          economic advantage.
               Borrello  against  the Group -  $365,600  in  tort
          damages  for  intentional interference with prospective
          economic  advantage and intentional  interference  with
          the   medical  staff  agreement  between  Borrello  and
          Attorney's fees were awarded as follows:

               Full  reasonable  attorney's fees  of  $252,862.50
          under  the  antitrust statute in favor of Chandler  and
          Borrello against Providence and the Group, jointly  and
               Partial fees under Civil Rule 82 of $33,183.25  in
          favor  of  APMC against Chandler and Borrello,  jointly
          and severally.

           Providence  and the Group have appealed, and  Chandler

and  Borrello have cross-appealed.  The issues on appeal  and  on

cross-appeal and summaries of our decision concerning each  issue

are set out below.

     Appeal Issues

      1.    For  the  sixth element of the claim  of  intentional

interference  with prospective advantage, did the  court  err  in

failing  to instruct the jury that the plaintiffs had the  burden

of proving the absence of privilege?

           Decision:   No, the jury was properly instructed  that

the plaintiffs had this burden.

      2.   Was the evidence sufficient to satisfy the elements of

the   plaintiffs'   claims  of  intentional   interference   with

prospective economic advantage?

           Decision:  Yes, the evidence was sufficient as to each


      3.   Was the evidence sufficient to satisfy the elements of

Chandler's claim of restraint of trade?

           Decision:  Yes, the evidence was sufficient as to each


     4.   Was the evidence sufficient to warrant an award of lost

profits to the plaintiffs?

          Decision:  Yes, the evidence was sufficient.

      5.    Was the award of attorney's fees to both Chandler and

Borrello  under the full reasonable fee standard of the antitrust

act  erroneous  because only Chandler prevailed on  an  antitrust


          Decision:  The award was erroneous as to Borrello since

he  did  not prevail on his antitrust claims.  He is entitled  to

attorney's  fees under Civil Rule 82 against the  Group  but  not

against Providence.

     Cross-Appeal Issues

     1.   Did the court err in granting j.n.o.v. in favor of APMC

and  Providence  on Chandler's claim of intentional  interference

with contractual relations?

           Decision:   Yes, Chandler showed a compensable  injury

for  loss  of  professional  time due  to  the  delay  of  S.H.'s

procedure and was at least entitled to nominal damages  for  this


      2.    Did  the court err in granting j.n.o.v. in  favor  of

Providence  on  Chandler's  claim of  violation  of  the  implied

covenant  of  good  faith and fair dealing  on  the  ground  that

Providence's contract was with Chandler rather than A.A. Pain?

           Decision:   Yes, the court erred because Chandler  was

practicing through A.A. Pain as his professional corporation.

      3.   Did the court err in awarding prevailing party fees of

$33,183.35  to  APMC?           Decision:  As  to  Chandler,  the

court  should  consider whether APMC was a  prevailing  party  in

light of our decision that the grant of j.n.o.v. in favor of APMC

on  Chandler's claim of intentional interference with contractual

relations was erroneous.  As to Borrello, the court did not abuse

its  discretion in making the award.  The fact that APMC  had  an

indemnity agreement with Providence under which APMC did not have

to  pay its own fees did not require that fees not be awarded  to


We proceed to a discussion of these issues in the order that they

are set forth.

                    Appeal  Issue 1 Did the court err in  failing
                    to  instruct the jury that the plaintiffs had
                    the   burden   of  proving  the  absence   of
                    privilege    element   of   the   intentional
                    interference with prospective advantage tort?
           This  issue and the second issue involve the  tort  of

intentional interference with prospective economic advantage.  We

have  identified  six  elements of  this  tort.   There  must  be

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.3

           Providence  and the Group claim that the  trial  court

improperly instructed the jury as to the sixth element by placing

on  them  the burden of proving that their conduct was privileged

or justified rather than requiring Chandler and Borrello to prove

that the defendants' conduct was not privileged or not justified.4

The   trial  court  indicated  in  a  pretrial  ruling  that  the

defendants  should have the burden of proving that their  conduct

was  privileged or justified.  Instructing the jury in accordance

with  such  a ruling would be erroneous, because the  absence  of

justification or privilege is an element of the tort.   Typically

the  burden is placed on a plaintiff to prove each element  of  a

tort.   Specifically,  we have stated that  "the  plaintiff  must

prove" each of the six elements of the tort.5  But an examination

of  the jury instructions as given does not reflect that the jury

was   instructed  that  the  burden  of  proving   privilege   or

justification was on the defendants.

           An instruction on burden of proof tells the jury which

party  must  lose if the jury is not persuaded that a  particular

set  of  circumstances existed.6  For the following  reasons,  we

conclude  that the jury was instructed that if it  did  not  find

that  the  defendants' conduct was not privileged the  plaintiffs

must lose, and thus the burden of proof was properly allocated to

the plaintiffs.

           An instruction that tells a jury that if it finds that

each  element  of  a tort has been proved it must  find  for  the

plaintiff,  but  if  it  finds otherwise it  must  find  for  the

defendant,  places on the plaintiff the risk  of  losing  if  the

proof  is insufficient.  Such an instruction allocates the burden

of  proof to the plaintiff even if no mention of burden of  proof

is  made.  The challenged instruction in this case contained this


           There was no general burden of proof instruction.  But

the  instruction pertaining to the intentional interference  tort

told  the  jury that if it found that the first five elements  of

the  tort were proven by the plaintiffs by a preponderance of the

evidence,  then the jury would have to decide "if the defendants'

conduct  was  legally justified or privileged."7  The instruction

went  on  to say that if the jury decided that the five  elements

were  established  and  "that  the defendants'  conduct  was  not

legally  justified or privileged" then a verdict must be returned

in favor of the plaintiffs; but if the jury found "otherwise,"  a

verdict  for the defense was required.  With the word "otherwise"

the  court  addressed the subject of what should be done  if  the

jury failed to find that defendants' conduct was not justified or

privileged.  In that event the jury was instructed that  it  must

find for the defendants.8

           Thus  the jury was told that if it found that all  six

elements  of  the  tort had been proved it should  find  for  the

plaintiffs;  if  not,  it should find for  the  defendants.   The

instruction properly placed on the plaintiffs the risk of  losing

if  any element was not proved.  Although not a model of clarity,

the instruction was legally sufficient to allocate the burden  of

proof to the plaintiffs.

                    Appeal Issue 2 Was the evidence sufficient to
                    satisfy   the  elements  of  the  plaintiffs'
claims for intentional              interference             with
                    prospective economic advantage?
           The appellants' first contention here is that the tort

of  interference  with a prospective economic advantage  requires

specifically identified third parties and that interfering with a

doctor's  ability  to  form  a  professional  relationship   with

patients  who  are  unidentified at the time  of  the  challenged

conduct is insufficient.

          We have not so limited this tort.  We have described it

in  the  following  terms:   "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.'  "9    The

highlighted  language  contemplates  a  broader  range  of  third

parties than merely those that are specifically identified.

           The  Group  also  argues that there  was  insufficient

evidence to demonstrate any prospective business relationships.10

We do not find this argument persuasive.  Chandler testified that

he  began  seeing a twenty percent decrease in referrals  to  his

office  after the 1994 exclusive went into effect.  He  explained

in detail exactly how the referral process changed, and named one

physician  who  stopped  making referrals to  Chandler's  office.

Chandler's  testimony that he had heard of such a prohibition  on

referrals  was corroborated by Providence employees.   From  this

testimony,  it  would be reasonable for a juror to conclude  that

Chandler   was   seeking  reasonable  and   legitimate   business

opportunities   which  were  at  least  in  part  frustrated   by

defendants' actions.  Furthermore, other testimony, such as  that

from  one  of  Chandler's  former  patients,  who  described  her

frustrated   attempts   to   have  Chandler   contacted,   helped

demonstrate  that  there  was  a class  of  third  parties  being

affected   by  the  interference.   Coupled  with  the  testimony

regarding  patient S.H., the evidence is sufficient; a reasonable

juror could have resolved this element in favor of plaintiffs.

           To  satisfy the tort of intentional interference  with

prospective economic advantage, Chandler and Borrello also had to

demonstrate  that  defendants were responsible  for  causing  any

prospective business relationship not to materialize.11

           Contrary to the Group's suggestions that Chandler  and

Borrello  only  provided self-serving testimony,  other  evidence

exists.    Two  pieces  of  evidence  implicate  the   Group   by

demonstrating a policy bent on centralizing the referral  process

to insure that only Chandler's former patients would see him.   A

memo to Providence nursing and supervisors staff stated:

          (1)  All  orders for Pain Management will  be
          referred to [the Group] pain MD by the  nurse
          or health unit coordinator. . . .
            (2)  [The Group] pain doctor will determine
          if  the  patient has previously been seen  by
          Dr.  Chandler,  and, if so, will  inform  him
          that his patient is here.
Providence's pain service clinician verified that this policy was

in  place  throughout  the  entirety of the  exclusive  contract.

There  also exists evidence suggesting that this policy  resulted

in  occasions where Borrello and Chandler were actually prevented

from  seeing  their own patients.  There was sufficient  evidence

for  a  reasonable  juror  to decide in  favor  of  Chandler  and


           As  discussed  above,  the  superior  court  correctly

instructed the jury that plaintiffs had the burden of proving the

Group's  actions were not privileged.  The Group now argues  that

Chandler  and  Borrello  were not able  to  satisfy  that  burden

because  no  evidence  demonstrated the Group  was  motivated  by

spite, malice, or some other improper objective.  We disagree.

           Plaintiffs presented evidence that Dr. Norman13 held a

personal  grudge  against  Chandler based  on  a  prior  business

association  and lawsuit.  While Norman disputed this  inference,

whether  there  was  a grudge and, if so, its  impact  were  jury

questions.   Other  evidence was presented that  members  of  the

Group  felt Borrello, as an associate of Chandler, was "tainted."

One  witness  testified to overhearing Norman saying that  "there

was  no  way  he  was  going to credential" Borrello  because  he

"didn't  want  to  give  Chandler any extra  help  at  Providence

Hospital."   Such evidence, coupled with the expressed intentions

of  Norman and other Group members to drive Chandler out  of  the

hospital and out of business could have led a reasonable juror to

decide in favor of defendants as to the privilege element.

           The  Group  next argues that Chandler  and  Borrello's

damages  awards  for  intentional interference  with  prospective

economic advantage were excessive because they exceed plaintiffs'

own  expert's  estimates.  The Group claims  this  expert's  only

testimony with regard to this claim referenced injuries  stemming

from  lost referrals, estimating damages at $136,212 for Borrello

and  $116,256  for  Chandler.  But the  jury  eventually  awarded

$365,600 to Borrello and $292,480 to Chandler.

           The Group concedes having not addressed this point  at

the  j.n.o.v.  stage.  Thus it is only entitled to relief  if  we

find plain error "so substantial as to result in injustice."14

            The  superior  court  found  that  "there  [was]   an

evidentiary basis for the award of damages to [Dr. Chandler]  and

to  Dr.  Borrello  for the tort of intentional interference  with

prospective  advantage."   We  agree.   The  expert's   testimony

encompassed more than just referrals, also referencing  "Medicare

dumping"  and restrictions on the doctors' practices,  estimating

additional  damages exceeding the amount awarded.   It  would  be

reasonable  for  a  juror to include these practices  within  the

scope  of  the tort of intentional interference with  prospective

advantage, and to allow them to do so was not plain error.

                    Appeal Issue 3 Was the evidence sufficient to
                    satisfy  the elements of Chandler's claim  of
                    restraint of trade?
            Alaska   Statute  45.50.562  provides  that  "[e]very

contract,  combination  in the form of  trust  or  otherwise,  or

conspiracy,  in  restraint of trade or commerce  is  unlawful."15

When  appropriate,  this court is guided by federal  Sherman  Act

cases in construing Alaska antitrust law.16

          In order to establish a prima facie case under Alaska's

restraint  of  trade  statute,  a  plaintiff  must  prove   three

elements:  (1) the existence of an agreement or conspiracy  among

two or more persons or distinct business entities; (2) intent  on

the  part  of  those  persons or entities  to  harm  or  restrain

competition; and (3) the agreement or conspiracy actually injured

competition in the relevant market.17

          Unless a case involves a per se violation,18       Here

both  sides  agreed - and still agree - with the  superior  court

that  there was no per se violation and thus the rule  of  reason

test applied.  See Lee, 999 P.2d at 762 ("[A] contract between  a

hospital and a group of anesthesiologists is not considered a per

se violation of the Sherman Act."). most jurisdictions, including

ours, utilize a "rule of reason" test to determine whether or not

competition  has  actually been damaged:19  "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.' "[20]

           After  the  presentation of plaintiffs' evidence,  the

defense  moved  for  directed verdict  on  the  antitrust  claim,

attacking  plaintiffs' case on several grounds.  This motion  was

denied.   After  a jury verdict against both Providence  and  the

Group  on the antitrust claim, the defense again raised all their

arguments  in  a  motion  for j.n.o.v.,  which  was  subsequently

denied.   Providence  and  the Group  renew  their  arguments  on

appeal. In addition, they argue that Chandler failed to establish

cognizable antitrust injury and antitrust standing.

           Providence  and the Group contend that  "the  critical

question  is  where  the consumer of chronic  pain  services  can

reasonably  turn  for  alternative  care"21  and  conclude   that

Chandler, in only describing "out-of-office" procedures performed

at  Providence,  has  not  answered  this  question.   They  cite

authority  holding  that one hospital is not  a  relevant  market

unless  it  "is the only one serving a particular area or  offers

unique set of services."22  They claim Chandler provided no other

information such as prices or patient volumes about other  market

participants, especially pain clinics, and conclude that the jury

had  no  framework  for  deciding whether  competition  had  been


            Appellants'   representation  of  the   evidence   is

deficient.23  The evidence was replete with references to the pain

services  market,  which for the relevant periods  of  time  only

contained  two to four providers and did not extend  outside  the

Anchorage  area.  Though this evidence comes from self-interested

parties,  that does not mean that it is presumptively  worthless.

Hard  data  is not necessarily required in antitrust  cases.   In

Oltz v. St. Peter's Community Hospital, a case heavily relied  on

by  this  court in interpreting our antitrust statute, the  Ninth

Circuit  stated  that  "the  failure to  pinpoint  precisely  the

relevant market through detailed market analysis is not uniformly

fatal to a claim under Sherman Act  1."24

           Furthermore,  Chandler presented statistical  evidence

describing the market at trial.  Chandler's estimates that around

sixty  to  sixty-five percent of hospital patients  in  Anchorage

"run  through  Providence" were corroborated by statistical  data

published by the Department of Health and Social Services and  by

Providence.25   Though  much  of  this  evidence  only  considers

hospital in-patients, Chandler testified that Providence  retains

a  similar market percentage in out-patient services.  We believe

that  a  reasonable  juror  could  conclude  that  this  evidence

demonstrates Providence's powerful position in the Anchorage area

pain management market.

           Providence  and  the  Group next argue  that  Chandler

failed  to  present any evidence that Providence  and  the  Group

entered  into an agreement26 whose object was to harm or restrain

competition.27  They point out that simple competitive desires to

maximize  profits  at  the  expense  of  rivals,  to  even  drive

competitors out of business, are not objective bases  upon  which

antitrust liability may be found.28

           As  Professors  Areeda  and Hovenkamp  note  in  their

treatise on antitrust law, proving a conspiracy intended to  harm

competition  is complicated by certain features inherent  in  any

restraint of trade agreement:  (1) conspirators will seldom admit

to  their  unlawful  agreement; (2) "behavior  can  sometimes  be

coordinated  without any communications or other  observable  and

reprehensible  behavior"; and (3) the causal  connection  between

observable acts and subsequent corroborating acts may be obscure.29

Thus,  courts  will  often have before them agreements  which  on

their  face offer legitimate and lawful profit-seeking motives.30

Because  of  this,  courts must look deeper to  the  longer  term

effects  of  the agreement to discover whether it is intended  to

harm competition:

               It is not the form of the combination or
          the  particular means used but the result  to
          be  achieved that the statute condemns. It is
          not  of importance whether the means used  to
          accomplish  the  unlawful  objective  are  in
          themselves lawful or unlawful. Acts  done  to
          give  effect  to  the conspiracy  may  be  in
          themselves wholly innocent acts. Yet, if they
          are  part  of the sum of the acts  which  are
          relied  upon  to  effectuate  the  conspiracy
          which  the statute forbids, they come  within
          its prohibition.[31]
          Because of the difficulty of proving intent, as well as

the   necessity  of  considering  the  long-term  effects  of   a

defendant's behavior, it would be natural to conclude  then  that

proof of intent and proof of injury are closely related, and that

the latter is inferential proof of the former.  Professors Areeda

and Hovenkamp reach just this conclusion:

                It is often said that agreements do not
          offend  the Sherman Act in the absence  of  a
          purpose or effect to restrain trade, or  that
          a  restraining agreement may be redeemed by a
          legitimate purpose.  Such statements seem  to
          call for inquiry into a defendant's state  of
          mind.  That inquiry often seems to invite the
          parties to examine thousands of documents, to
          depose  nearly  everyone,  to  resist   early
          disposition  on  the  ground  that   disputed
          intent  requires trial, to burden  the  judge
          and  jury  with  ambiguous evidence,  and  to
          invite  decision  on the  basis  of  relative
          purity   of  heart  rather  than  competitive
               These problems cannot be entirely avoided, because
          mental  state is sometimes relevant, particularly  when
          conduct   is   ambiguous.    However,   intent   seldom
          determines  reasonableness.  Indeed,  intent  is  often
          superfluous to the analysis of reasonableness,  for  it
          adds  nothing to the conduct from which it  is  usually
As the United States Supreme Court has noted:

          Often   crimes  are  a  matter  of  inference
          deduced  from the acts of the person  accused
          and  done in pursuance of a criminal purpose.
          Where the conspiracy is proved, as here, from
          the  evidence of the action taken in  concert
          by  the  parties to it, it is  all  the  more
          convincing proof of an intent to exercise the
          power  of  exclusion  acquired  through  that
          conspiracy.  The  essential  combination   or
          conspiracy  in violation of the  Sherman  Act
          may be found in a course of dealings or other
          circumstances as well as in any  exchange  of
           Keeping  these  principles in mind, we  conclude  that

there  was  evidence upon which a reasonable juror  could  decide

defendants had an intent to harm competition. As discussed above,

testimony   indicated  that  numerous  members  of   the   Group,

especially  Norman, were not particularly fond of  Chandler,  and

that  some  intended  to put Chandler out of business;  Borrello,

too,  was labeled by some in the Group as tainted because of  his

close   association  with  Chandler.   Other  evidence  suggested

defendants'  motives  went beyond mere  competition.   Chandler's

efforts  to treat his patients at Providence - something  he  was

permitted to do by the terms of the agreement - appeared at times

to  be  frustrated by defendants' refusal to contact him.  On  at

least  one  occasion hospital staff were prevented  from  calling

Borrello  to  see one of Chandler's patients when it was  evident

that  Chandler was out of town.  A reasonable juror  could  piece

together  defendants' declarations with their  actions  and  find

intent to harm competition.

           Appellants respond that this evidence only shows  one-

half of the picture, indicating at most that the Group wanted  to

drive  Chandler  out  of business, and indicating  nothing  about

Providence.    They  argue,  "[w]ithout  evidence  showing   that

Providence `knowingly became members of that conspiracy with  the

intent  to  further  its purposes,' no conspiracy  existed  as  a

matter of law."34

          Unilateral conduct by a single entity is not actionable

as  an agreement in restraint of trade.35  But the Group did  not

act unilaterally.  The exclusive contracts were bilateral, and if

they caused injury to competition, an inference of intent may  be

drawn against Providence as well as against the Group.

           The  plaintiffs presented substantial evidence of harm

to  competition.  In order to demonstrate harm to competition  in

an antitrust claim, a plaintiff must show proof of actual harm to

competition reaching beyond mere harm to itself as a competitor.36

Reduced output, decreased consumer welfare, and higher prices are

all relevant considerations.37  Unlike tort law, in antitrust law

"the  `reasonableness' of a restraint is judged  by  its  general

effect  on  the market, not by the circumstances of a  particular


           With  regard to consumer welfare, or quality of  care,

Chandler presented evidence which, when viewed in its best light,

painted  the  following picture.  The Group often had  difficulty

retaining  chronic  pain  management  specialists,  resulting  in

understaffing,  which,  when coupled with  the  exclusive,  meant

patients had to needlessly suffer in pain.  For example, the lack

of  availability of physicians, sometimes only amounting  to  one

available  physician,  resulted in a  lack  of  continuity  among

physicians,  backlogs  of patients and overall  delays.39   Other

evidence  suggested  that  the Group's  pain  doctors  gave  less

priority  to  pain services than other forms of anesthesia.   One

former  Providence nurse went so far as to agree that "the  Group

never developed the depth of staff to provide sufficient coverage

for the pain service."

           Evidence also suggested that medical knowledge  within

the  Group  was  deficient:  for extended  periods  certain  pain

management  procedures, such as implantable pumps,  were  outside

the  realm  of  expertise of any of the Group's physicians.   One

doctor  testified  that  Chandler had  a  very  good  set-up  for

implantable  pumps  and  that he saw  no  reason  why  Chandler's

practice  should be restricted.  A former pain service  clinician

from  Providence  testified:  "People that needed  further  [pain

treatment beyond steroid injections], I don't think that we  have

served  their needs."  Despite its purported inability  to  fully

serve  patients'  needs,  the Group and Providence  continued  to

enforce  the exclusive agreement.  One nurse testified  that  she

would  have  referred patients to Chandler and Borrello  had  she

been  allowed because it would have helped alleviate many of  the

understaffing   and  quality  control  problems  Providence   was


           Chandler presented other evidence suggesting that  the

Group "dumped" unprofitable patients, thereby decreasing consumer

welfare  and  creating market barriers by saturating  competitors

with  low-paying  patients.   One physician  testified  that  his

superiors  instructed him to dump Medicare and Medicaid  patients

"by  being too busy to see them."  Chandler observed the  effects

on  his  own practice:  the Group would neglect to follow  up  on

cases  when they became less profitable, and these patients would

end   up   at   Chandler's  practice  for   the   less-profitable


           Other  evidence suggested that the Group's  activities

manipulated prices by "unbundling" procedures, making  them  more

expensive  and possibly less effective for patients.   Unbundling

can  be  described as the separation of a medical procedure  into

its  parts,  i.e.,  a number of separately billed  sub-procedures

which,  in their totality, incur a greater total charge  then  if

all were billed as one procedure.40  Witnesses testified that one

physician  within the Group, Dr. Davy, proposed  that  a  certain

pain  treatment  be applied post-operatively  so  that  he  could

charge more for it as a separate procedure.  Though some objected

that  the  proposal  was  not good patient  care,  at  least  one

physician remembers his superiors "stat[ing] that that  would  be

the policy from that point forward."   One pain service clinician

was  told  that  doing the procedure post-operatively  meant  the

patient  could  be billed additionally; on ten or more  occasions

she observed Davy or another doctor performing the procedure post-

operatively.   Other testimony suggested that  others  also  were

aware of this practice.41

           In  an  effort to demonstrate a decrease  in  consumer

welfare,  Chandler  refers to problems  experienced  by  specific

patients.  Appellants counter that Chandler's anecdotal  evidence

fails  to  establish  a baseline standard of  care.   Appellants'

argument  would  be  sound were Chandler solely  relying  on  the

stories of three out of several thousand patients; we note  again

that antitrust law considers general effects on the market rather

than  particular applications.42  But here, a former Group doctor

testified  that, in his opinion, the exclusive contracts  reduced

choices  to patients without any added benefit.  Furthermore,  as

discussed   above,   Chandler  presented  evidence   of   serious

understaffing  in  the Group.  Chandler also  presented  relevant

testimony  demonstrating that one or more members  of  the  Group

were  motivated more by profit concerns than with patients' pain.

It is with this evidence in mind that the three patients' stories

might  be  of  use  to  a juror as illustrative  of  the  adverse

consequences of the Group's exclusive contract with Providence.

            In   summary,  we  conclude  that  the  evidence  was

sufficient  to  satisfy each element of Chandler's  restraint  of

trade claim.

                    Appeal Issue 4 Was the evidence sufficient to
                    warrant  an  award  of lost  profits  to  the
          In connection with their antitrust claims for restraint

of  trade, Chandler and Borrello requested damages in the form of

lost profits and lost income, respectively,43 resulting from  the

exclusive contract between Providence and the Group.  They relied

on  their  expert, economist Dr. Bradford Tuck, to  estimate  the

extent  of  three  sources  of loss:  (1)  losses  stemming  from

Borrello's  exclusion  from Providence and/or  his  inability  to

freely treat patients there; (2) losses resulting from a loss  of

pain   management  patient  referrals  due  to  interference   by

Providence;  and (3) losses resulting from the referral  of  only

Medicare, Medicaid and other low paying or nonpaying patients.44

           After  two failed directed verdict motions and a  jury

verdict in favor of Borrello and Chandler with regard to the lost

profits claim, the defendants moved for j.n.o.v.  The court again

rejected defense arguments.  The court did however inquire as  to

the   correct  measure  of  corporate  profits  for  professional

corporations,    i.e.,    whether    or    not    to     consider

employee/shareholder salaries and other compensation as income or

expenses.   Noting  a split in authority, the  court  sided  with

plaintiffs'  measure,  reasoning "if a  professional  corporation

could  not  prove lost profits via salary compensation,  then  it

would  never  be  able to prove damages for lost profits  if  the

wrongful act of another caused it harm."

           Providence and the Group renew all of their  arguments

on appeal.

           They  first  argue that Tuck did not  calculate  "lost

profits"  for  Chandler's corporation A.A. Pain correctly.   They

point  out  that  while  A.A. Pain's total  income  increased  by

seventy-two percent between 1995 and 1998, its corporate  profits

decreased  each of those years because the doctors were receiving

increased  salaries  and  other compensation.   They  argue  that

damages should have been assessed according to the average profit

margin  over the four years, here approximately 1.06%,  a  figure

which would have greatly reduced Chandler's measure of damages.

           Chandler's  witness Tuck utilized a different  margin,

one  that included the salaries and "other compensation"  of  the

doctors  in  the  corporate  profits/losses  category.   Chandler

argues that this was appropriate under the circumstances because,

like  most  professionals  who are  both  shareholders  of  their

professional  corporation and employees of that same corporation,

he  avoids double taxation by compensating himself with a  salary

taken  from  the  corporation's pre-tax revenues.   In  this  way

corporate  net  income  is kept to a minimum  and  only  Chandler

personally is taxed.  But Chandler contends that this unnaturally

low  figure  would  not  be a good basis for  his  damages  award

because  it  does not reflect the corporation's actual  financial


          No Alaska authority effectively deals with this issue.45

In examining other jurisdictions, it is apparent that there is  a

split in authority.  Anesthesiologists Associates of Ogden v. St.

Benedict's Hospital46 effectively represents Providence's argument

that salaries in a professional corporation should be treated  as

saved  expenses for purposes of lost profits.  There the  Supreme

Court   of   Utah  held  that  shareholders  of  a   professional

organization  make  a  choice  to  reap  the  many  benefits   of

incorporation, such as limited liability.47  "In so  doing,  they

[assume]   all   the  attendant  advantages  as   well   as   the

disadvantages of the corporate form.  One of the disadvantages of

doing  business  as  a  corporation is that  losses  suffered  by

individual doctors cannot be recovered by the corporation."48  In

essence,   then,  this  line  of  authority  refuses   to   treat

professional corporations as different from other corporations.49

           Bettius  &  Sanderson,  P.C. v.  National  Union  Fire

Insurance  Co.  represents  the  opposite  view.50   Citing   the

difference   in   corporate  structure  which   distinguishes   a

professional  corporation from the more traditional  corporation,

the   Fourth   Circuit    concluded   that   eliminating   salary

compensation  from the lost profits calculation for  professional

corporations  would make it virtually impossible  to  ever  prove

damages.51  This  would  result  in  an  unrealistic  picture  of

corporate   profits   and  an  injustice  to   the   professional

shareholder.52  The court elaborated that one distinguishing mark

of  a  professional corporation is that its shareholders actually

earn  their  compensation through services rendered  rather  than

through  ownership.53   As  a  result  the  corporation  ends  up

calculating its net income with different goals in mind.54

           In  our  opinion, the Bettius line of thinking  better

reflects  actual  losses  of  a  professional  corporation.    It

prevents a situation where a wrongdoer can avoid liability simply

because  of  a  technicality  in  the  corporate  structure.   We

conclude  therefore  that  the superior  court  did  not  err  in

adopting the Bettius approach.

           We  next  turn  to  the sufficiency of  the  evidence.

"[L]ost profits must be proven with reasonable certainty."55  For

all  three of their lost profits theories, Chandler and  Borrello

rely  almost exclusively on their own testimony coupled with  the

conclusions  of Tuck, which Providence and the Group  assert  are

nothing more than a series of "assumptions" relayed to him by the

doctors' own self-serving testimony.

           Appellants  question  several of  Tuck's  assumptions.

First, with regard to Borrello's practice, Tuck assumed that  the

addition of a second doctor to a clinic should have doubled gross

receipts  within six months.  Appellants argue that more evidence

was  necessary since both doctors "always [had] work to  do"  and

were   both  attempting  to  shift  their  practices   in   other


           With  regard to referrals, Tuck assumed that,  because

Chandler told him he observed a twenty percent decrease in clinic

income  or  billings  during the exclusive, A.A.  Pain's  figures

during  the  exclusive  would have been  twenty  percent  higher,

absent the restraint.56  But Chandler testified in court that  he

had  no  idea  how many referrals his clinic received  before  or

during the time the exclusive contract was in effect.

          With regard to the Medicare and Medicaid patients, Tuck

admitted  that he had not conducted any independent  research  on

the  matter,  relying instead solely on Chandler  and  Borrello's


           The  applicable standard is that "[t]he evidence  must

afford  sufficient data from which the court or jury may properly

estimate  the amount of damages, which data shall be  established

by  facts rather than by mere conclusions of witnesses."58   Were

only   Tuck's   testimony  available,  the  evidence   might   be

insufficient to meet this standard.

           But  other evidence exists.  Appellants' own witnesses

and  documents  provided  support:   in  particular,  preliminary

estimates  made  by  the  hospital as to  how  much  revenue  its

proposed  pain service would generate, and the testimony  of  two

doctors  who  were  able to build their successful  pain  service

practices   in   a  relatively  short  time.   Such   data   also

demonstrated  the Group's own caseload around  the  time  of  the

exclusive.  A  juror  could have compared this  to  Borrello  and

Chandler's  own  caseload.   In  addition,  Chandler's  estimated

percentage  of  Medicare and Medicaid patients were substantially

higher  than  the Group's; this is significant when coupled  with

evidence  of  the  Group's patient-screening  practices  and  its

"dumping"  of  unprofitable patients.  Given  this  corroborative

evidence,  a  juror's  finding consistent with  Tuck's  testimony

would be reasonable.

                    Appeal  Issue  5 Was the award of  attorney's
                    fees to both Chandler and Borrello under  the
                    antitrust act erroneous because only Chandler
                    prevailed on an antitrust theory?
           The  Alaska  antitrust  statute,  AS  45.50.576(a)(1),

establishes  that  prevailing  parties  are  entitled  to   full,

reasonable  attorney's fees.59  Alaska Rule  of  Civil  Procedure

82(b)(1) only allows for partial attorney's fee recovery.

           Because  some of his prevailing claims were under  the

antitrust  statute, Chandler asked for full reasonable attorney's

fees.  Because he did not prevail on any antitrust claim and only

recovered  on common law claims, Borrello sought a partial  award

under Civil Rule 82.60

           Appellants' sole contention is that the superior court

erred  in  awarding  Borrello attorney's fees  under  the  Alaska

Antitrust  Act  when he did not prevail on any of  his  antitrust


           We agree that the superior court abused its discretion

in  awarding Borrello full reasonable attorney's fees.61  Because

Borrello only prevailed on common law claims, he was not entitled

to  recovery  under  the  full reasonable  fees  standard  of  AS

45.50.576(a)(1).  Rather, under Rule 82, he was only entitled  to

an  award  of partial fees.  Further, since he only prevailed  on

common  law  claims against the Group, his Rule 82  award  should

only  run  against the Group, and not Providence.   The  superior

court  exceeded  its "bounds of broad discretion"62  in  awarding

Borrello fees that could only be justified by a claim on which he

did  not prevail, and against a defendant against whom he did not


                         Cross-Appeal Issue 1     Did  the  court
                         err  in  granting j.n.o.v. in  favor  of
                         APMC  and Providence on Chandler's claim
                         of    intentional   interference    with
                         contractual relations?
           Chandler alleged that Providence, the Group, and  APMC

interfered with Chandler's contract with S.H. when they  canceled

her  procedure  so as to move it off-site. In part because  those

acts  required  him  to obtain a temporary restraining  order  to

perform  the  procedure as scheduled, Chandler asked for  damages

"[i]n an amount in excess of $50,000.00, to be proven at trial."

           At  trial, the only evidence regarding damages on this

issue   came   from  Chandler's  and  Borrello's  own   testimony

describing discussions between themselves and S.H.'s family about

how  to  proceed in light of the cancellation, as well  as  their

subsequent attempts to get the restraining order:

          [W]e  called  our attorney,  which  was  Stan
          Lewis,  and I met with Stan and told him  the
          situation.   We  went to his  office  in  the
          afternoon,  after  we  had  met   with   [the
          patient's  husband].   And  we  were  up  the
          entire  night  preparing the  documents.   He
          pulled  in the whole staff, and the documents
          were prepared for the next morning in court.
           The  jury found Providence, the Group, and APMC liable

to  Chandler for interfering with his contract with patient S.H.,

awarding  damages of $146,240 against APMC, and $292,480  against

Providence.   Subsequently, the defendants  moved  for  j.n.o.v.,

arguing  that Chandler had not presented any evidence of  damages

arising from contractual interference.  The superior court agreed

that there was insufficient evidence to justify that claim.

           Chandler  argues  that the record reflects  sufficient

injury  since he had to both hire a lawyer and work all night  to

prepare  paperwork to file the eventually successful  restraining

order.63   Alternatively, Chandler asks for  nominal  damages  in

order  to  negate APMC's prevailing-party status  and  avoid  the

consequential  attorney's fees award.  Chandler  cites  Grant  v.

Stoyer  for  the  proposition that the court  cannot  award  zero

damages when it is "beyond legitimate controversy" that there was

a compensable injury.64

           The rule of law is clear that attorney's fees for work

in the case under review are not recoverable as damages.65  Thus,

Lewis's  fees  cannot be considered a part  of  a  damage  award.

Neither should the superior court consider Chandler's time  spent

actually preparing this litigation.66

           However,  the  cancellation and  rescheduling  of  the

procedure led to a disruption in Chandler's professional schedule

apart  from  litigation preparation.  Although  not  specifically

quantified, this loss of professional time is without question  a

compensable  injury,67 entitling Chandler  to  at  least  nominal

damages.   We therefore reverse the superior court on this  issue

and  remand  for  entry of a nominal damage  award  in  favor  of

Chandler on this claim.

           In  view  of this disposition, the superior  court  on

remand  should  reconsider whether APMC is still  the  prevailing

party with regard to Chandler's claim.

                         Cross-Appeal Issue 2     Did  the  court
                         err  in  granting j.n.o.v. in  favor  of
                         Providence  on  A.A.  Pain's  claim   of
                         violation  of  the implied covenant  and
                         fair   dealing   on  the   ground   that
                         Providence's contract was with  Chandler
                         rather than A.A. Pain?
            Citing  the  hospital  privileges  agreement  between

Chandler  and Providence and the limited privileges  afforded  to

Borrello, Chandler and Borrello argued at trial that Providence's

actions during the exclusive violated the covenant of good  faith

and fair dealing.

           The  jury  decided against Borrello but  in  favor  of

Chandler.  Providence moved for j.n.o.v., arguing that  in  order

to prove a breach of the covenant of good faith and fair dealing,

one  must  preliminarily  prove  the  existence  of  a  contract.

Providence contended that A.A. Pain "never produced any  evidence

of  a contract between Providence and A.A. Pain Clinic, and it is

undisputed  that  no  such contract ever  existed."   Given  that

Chandler  was  suing  in  the  name  of  A.A.  Pain  rather  than

personally, whereas his privileges at the hospital were personal,

Providence  argued that A. A. Pain was not entitled  to  maintain

this  claim.   The  superior court granted  Providence's  motion,

reasoning that because no contract existed between A.A. Pain  and

Providence,  there  could be no breach of the  covenant  of  good

faith and fair dealing.

           Chandler argues that the superior court erred  because

it  failed to consider that a party who contracts with  an  agent

may  be  held directly liable to the agent's principal for breach

of  that  contract.   Chandler  relies  on  section  292  of  the

Restatement (Second) of Agency, regarding disclosed agency:

               The other party to a contract made by an
          agent  for a disclosed or partially disclosed
          principal,   acting  within  his   authority,
          apparent authority or other agency power,  is
          liable   to  the  principal  as  if  he   had
          contracted   directly  with  the   principal,
          unless  the principal is excluded as a  party
          by the form or terms of the contract.[68]
Comment (a) to section 292 adds that "a principal may be bound as

a party to such a transaction even though the other party did not

enter into it in reliance upon the appearance of authority in the


            Providence  argues  that  the  above  rules  have  no

application because there is no evidence that Chandler was acting

as an agent for A.A. Pain when he "contracted" for his privileges

at   Providence.   Providence  notes  that  A.A.  Pain  was   not

incorporated  until 1994, more than twenty years  after  Chandler

received his privileges at Providence. Regarding the 1995  Letter

of  Understanding, which purported not to "reduce Dr.  Chandler's

existing practice," Providence argues that the language  -  never

mentioning  A.A.  Pain - simply stresses the  continuity  of  the

privileges agreement personal to Chandler.

            Before   the   drafting  of  the   1995   Letter   of

Understanding, Chandler wrote two letters to Dr.  Norman  of  the

Group, seeking to delineate the scope of his privileges under the

1994  exclusive.  These letters were also provided to  Providence

Hospital.   The  letters were on A.A. Pain  stationary  and  list

Chandler  as  A.A.  Pain's Medical Director.   Chandler  elicited

testimony at trial showing that these letters led directly to the

drafting  of  the  Letter of Understanding.  Again,  viewing  the

evidence  in the light most favorable to Chandler, we find  there

was sufficient evidence that A.A. Pain was a known principal when

the 1995 Letter of Understanding was drafted.

           It is uncontested that Chandler, in practicing chronic

pain  management  at Providence, did so as an  employee  of  A.A.

Pain.   In Alaska a physician may practice through a professional

corporation,  and when this occurs the professional  corporation,

as  well  as  the  physician, is considered to be  rendering  the

professional  services.70   Providence  knew  that  Chandler  was

practicing  through  A.A.  Pain,  and  when  Providence  breached

Chandler's  contractual privileges it knew or should  have  known

that  this hindered his performance as an employee of A.A.  Pain.

It  does no damage to established principles of law to allow A.A.

Pain   to  sue  for  the  loss  thereby  suffered.   Just  as   a

professional corporation may recover as damages for lost  profits

lost  compensation to its principals,71 it should be entitled  to

recover  as  damages earnings losses suffered by its  principals.

We  therefore conclude that A. A. Pain had the right to  sue  for

the  breach  of Chandler's hospital privileges.  We thus  reverse

the superior court on this issue.

                         Cross-Appeal Issue 3     Did  the  court
                         err   in   awarding   prevailing   party
                         attorney's fees of $33,183.35 to APMC?
           The  only  jury verdict not in favor of  APMC  was  on

Chandler's  claim for interference with contract.   This  verdict

was  subsequently  overturned by the superior  court's  grant  of

j.n.o.v.   As a result, the superior court deemed APMC  to  be  a

prevailing party and, over objection, granted it attorney's  fees

of  $33,183.25  against both Chandler and  Borrello.   The  award

against  Chandler should be reconsidered in light of our  holding

that  Chandler  was at least entitled to nominal damages  on  his

claim  against APMC.  The discussion that follows applies to  the

award  against Borrello and may apply to Chandler if the superior

court  concludes that APMC was the prevailing party on Chandler's

claim despite his nominal award.

           APMC,  because  of an indemnification  agreement  with

Providence, was not obligated to pay for its own attorney's fees.

As justification for granting attorney's fees, the superior court

relied  on  Gregory v. Sauser72 and Civil Rule 82.  The  superior

court explained:

                Civil  Rule  82 mandates the  award  of
          attorney's fees to the prevailing party.  The
          fact that a particular defendant or plaintiff
          did  not pay for any attorney's fees out [of]
          his   own   pocket  does  not   affect   that
          individual's  right to attorney's  fees.   In
          discussing  whether Civil Rule 82  attorney's
          fees should be awarded in cases where a party
          did  not have an obligation to pay for  those
          services, the Alaska Supreme Court has stated
          "any  further distinction, based upon whether
          the  client has an obligation to pay for  the
          legal   services  rendered,  is   untenable."
          Therefore,  the fact that APMC did  not  have
          [an] obligation to pay for attorney's fees is
          not   relevant  to  its  right   to   recover
          attorney's fees.
(Citations omitted.)

          Chandler and Borrello argue that, though Gregory should

indeed  be  applicable  to  cases where  a  party's  attorney  is

provided  through legal aid or is paid by an insurer, "where  the

party's attorney is provided and paid by a non-prevailing  party,

a  different rule should apply."  (Emphasis omitted.)  They  cite

no authority for this proposition.  Instead, they request that in

the interest of justice a wrongdoer should not be able to benefit

from such awards.

           The  trial  court retains a great amount of discretion

both  in  deciding  whether or not to  characterize  a  party  as

"prevailing"  for  purposes of awarding attorney's  fees  and  in

deciding  whether  or not to actually award  a  prevailing  party

attorney's fees.73

          This court has held that Rule 82 should be construed to

allow  awards of attorney's fee to any "party" who qualifies  for

the fee under the terms of the rule.74  Parties who are served by

in-house  counsel, legal services, and insurance  indemnification

are all put "on the same footing as other litigants."75

          Chandler and Borrello do not contest the fact that APMC

was  a  separate and distinct party in this litigation.  Instead,

they  simply  assert that attorney's fees should  not  have  been

awarded  because  the  effect is that a nonprevailing  party  who

agreed  to indemnify a prevailing party will ultimately  benefit.

Though Chandler and Borrello are correct when they assert that  a

court may deny a prevailing party fees provided an explanation is

given,  it  is  clear  that such an option is discretionary,  not

mandatory.76  In this instance we do not find sufficient  grounds

for concluding that the superior court abused its discretion.

           We therefore affirm the superior court's award of fees

to APMC as against Borrello.


            In  summary,  all  of  Chandler's  judgments  against

Providence  and the Group including the award of attorney's  fees

are AFFIRMED.  Borrello's judgment against the Group is AFFIRMED.

The  award  of full reasonable fees in favor of Borrello  against

Providence and the Group is REVERSED.  On REMAND Borrello  should

be  awarded fees under Civil Rule 82 against the Group,  but  not

against   Providence.   J.n.o.v.  in  favor  of   Providence   on

Chandler's award of $292,480 in damages on his claim of breach of

the  covenant  of  good  faith  and  fair  dealing  is  REVERSED.

J.n.o.v. in favor of APMC and Providence on Chandler's claim  for

intentional interference with contractual relations is  REVERSED;

on  REMAND the court should enter an award of nominal damages  in

favor  of  Chandler  and  consider  whether  APMC  is  still  the

prevailing party on this claim.  The award of attorney's fees  in

favor  of APMC is AFFIRMED as against Borrello and VACATED as  to

Chandler.   If  the  court  concludes  that  APMC  is  still  the

prevailing party as against Chandler the award may be reinstated.

           AFFIRMED  in part, REVERSED and VACATED in  part,  and
REMANDED for further proceedings consistent with this opinion.
1A.A. Pain was eventually incorporated in 1994.
2Chandler describes his chronic pain management practice  as  the
application  of  anesthesiology techniques to  the  treatment  of
chronic pain.
3Odom  v. Fairbanks Mem'l Hosp., 999 P.2d 123, 132 (Alaska 2000);
Oaksmith v. Brusich, 774 P.2d 191, 198 (Alaska 1989).
4"We  review de novo jury instructions to which timely  objection
was  made.  .  .  .  A jury instruction containing  an  erroneous
statement  of  law constitutes reversible error if it  prejudices
one  of the parties; prejudice exists if it can be said that  the
verdict may have been different had the erroneous instruction not
been  given."   Reich v. Cominco Alaska, Inc.,  56  P.3d  18,  25
(Alaska 2002).
5Fairbanks Mem'l Hosp., 999 P.2d at 132.
6United  Bank  Alaska v. Dischner, 685 P.2d 90, 93 (Alaska  1984)
(the  party bearing the burden of proof "bears the risk of losing
if the trier of fact is not persuaded").
7Jury Instruction No. 59 provided:

                   Plaintiffs'   fourth   theory   of
            recovery is intentional interference with
            prospective economic advantage.  In order
            to recover on this claim, plaintiffs [Dr.
            Chandler] and Dr. Borrello must prove the
            following  five things by a preponderance
            of the evidence:
                    1.     a   prospective   business
            relationship  existed between  plaintiffs
            and patients;
                 2.   defendants had knowledge of the
            prospective relationship and intended  to
            prevent its fruition;
                   3.     the   prospective  business
            relationship   did   not   culminate   in
            pecuniary benefit to plaintiffs;
                  4.   defendants' conduct interfered
            with the prospective relationship; and
                  5.    the  interference caused  the
            plaintiffs' damages.
                  If  you  find that plaintiffs  have
            proven each of the above five things by a
            preponderance of the evidence,  you  have
            determined  that defendants intentionally
            interfered  with plaintiffs'  prospective
            business relationship with patients.   If
            you  do  not  find  that plaintiffs  have
            proven each of the above five things by a
            preponderance of the evidence,  you  must
            return  a  verdict for the defendants  on
            this claim.
                 If you decide it is more likely true
            than  not  true  that  all  these  things
            happened with respect to one or  more  of
            the  defendants and one or  more  of  the
            plaintiffs, then you must decide  if  the
            defendants' conduct was legally justified
            or privileged.  I previously told you how
            to   determine  whether  the  defendants'
            conduct    is   legally   justified    or
            privileged . . . . [deleted orally].   If
            you  decide that [it is] more likely true
            than not true as to all of these elements
            and   you  decide  that  the  defendants'
            conduct  was  not  legally  justified  or
            privileged,  then  you  must   return   a
            verdict  in  favor of that  plaintiff  or
            plaintiffs and against that defendant  or
            those    defendants   on   this    claim.
            Otherwise, you must return a verdict  for
            the defendants on this claim.
                  I have already defined "intent" and
            "legal  cause"  for  you.   I  have  also
            instructed   you  on  how  to   determine
            whether a defendant's conduct was legally
            privileged or justified.
                       The court instructed on how to
            determine  whether a defendant's  conduct
            was  justified or privileged as  follows.
            Jury Instruction No. 57 provided:  I will
            now  instruct  you  on how  to  determine
            whether   a   defendant's   conduct   was
            justified   or   privileged.    The   law
            recognizes that certain kinds of  conduct
            under   certain  circumstances  are   not
            improper,   or   in  legal   terms,   are
            justified  or privileged.  A  defendant's
            interference with a contract is justified
            or   privileged  when  he  has  a  direct
            financial   interest   related   to   the
            contract,    and    his    conduct     is
            predominately motivated by  a  desire  to
            protect   his   economic   interest.    A
            defendant's  conduct is not justified  or
            privileged when it is motivated by spite,
            malice, or some other improper objective.
8In the preceding sentence the jury was told that if it found the
other five elements and that "defendants' conduct was not legally
justified  or privileged" it was to find in favor of  plaintiffs.
Even without the "otherwise" sentence, this phrasing implied that
if the jury were to fail to find that the conduct was not legally
justified it could not find in favor of the plaintiffs.
9Fairbanks Mem'l Hosp., 999 P.2d at 132 (quoting Ellis v. City of
Valdez, 686 P.2d 700, 707 (Alaska 1984)) (emphasis added).
10"In reviewing a superior court's ruling on a motion for JNOV, we
will  not weigh conflicting evidence or judge the credibility  of
witnesses.   Rather we will determine whether the evidence,  when
viewed  in  the light most favorable to the non-moving party,  is
such that reasonable persons could not differ in their judgment."
Blumenshine v. Baptiste, 869 P.2d 470, 473 n.3 (Alaska 1994).  To
the  extent  that  a  ruling on a motion  for  j.n.o.v.  involves
questions of law, those questions will be reviewed de novo.  This
standard  applies  to Appeal Issues 2 through 4 and  Cross-Appeal
Issues 1 and 2.
11Fairbanks Mem'l Hosp., 999 P.2d at 132; Oaksmith, 774  P.2d  at
12Appellants make three additional arguments as to  the  loss  of
business  element; all three are unpersuasive.   They  argue  (1)
that physicians, not hospitals, make referrals, (2) that Chandler
and  Borrello  had  no  legal right to referrals,  and  (3)  that
Chandler's  business was in fact growing from 1995  to  1998  but
made less money after the exclusive was lifted.  As to the first,
although   the  Group's  argument  may  be  true,  it  does   not
necessarily  eliminate Providence from liability if, as  evidence
demonstrated here, Providence allowed the Group to impose  itself
as  a  clearinghouse for referrals by hospital employees.  As  to
the  second,  though the doctors had no right to referrals,  some
Providence  employees  testified that they  would  have  referred
patients to Borrello and Chandler but for the exclusive, and that
it  would have been beneficial if more patients were referred  to
outside  doctors.   As  to the third, the issue  is  not  whether
Chandler's  business  was  growing, but rather  whether  Chandler
demonstrated  injury by producing evidence  that  he  would  have
earned  more money but for the exclusive.  See, e.g., Phillip  E.
Areeda,  Herbert  Hovenkamp & Roger D. Blair,  II  Antitrust  Law
396 (2d ed. 2000).
13Norman became medical director at the Group around 1994 and was
also  a  shareholder.   He also had ties to Providence  Hospital,
practicing  there  and holding the position of  chairman  of  the
anesthesia department.
14Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 n.8 (Alaska 2002).
15AS 45.50.562; Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000).
16Lee, 999 P.2d at 761; see also West v. Whitney-Fidalgo Seafoods,
Inc., 628 P.2d 10, 14 n.6 (Alaska 1981).
17Lee,  999 P.2d at 762 (citing Oltz v. St. Peter's Comty. Hosp.,
861 F.2d 1440, 1445 (9th Cir. 1988)).
18Most  federal  courts have determined that  there  are  certain
activities  which are, per se, considered illegal.  They  do  not
require  the  plaintiff  to prove actual damage  to  competition.
Lee, 999 P.2d at 762.

19Federal courts have uniformly adopted the rule of reason  test.
This  court embraced the rule of reason test in Odom v. Lee,  999
P.2d at 761-762. There is a presumption in favor of applying  the
rule  of  reason  standard.  See Business Elecs. Corp.  v.  Sharp
Elec. Corp., 485 U.S. 717, 726 (1988); Lee, 999 P.2d at 762.
20Lee, 999 P.2d at 762 (quoting Oltz, 861 F.2d at 1445).
21The  appellants cite Davies v. Genesis Med. Ctr.  Anesthesia  &
Analgesia,  P.C., 994 F. Supp. 1078, 1097 (S.D. Iowa  1998),  for
this proposition.
22Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 877 (3d Cir. 1995).
23Defining  the  relevant market is a factual inquiry  ordinarily
reserved for the jury.  Oltz, 861 F.2d at 1446.
24861 F.2d 1440, 1448 (9th Cir. 1988).
25Providence's own statistical data included in a strategic plan,
albeit  from  1990, lends credence to Chandler's  testimony.   It
notes  a 50% and still increasing share of the outpatient surgery
market for its Surgery Center.  It adds, "Surgery Center has long
been  the  marketshare leader in outpatient surgery."  That  same
report  also notes that "Providence's outpatient volume  is  also
increasing . . . with over 300 visits per day," although it  does
not  give overall market figures.  Finally, additional commentary
and  statistical evidence published by Providence around 1999  or
2000  indicates that Providence experienced growth  between  1990
and 2000.
26No  one  denies  that there was an agreement  between  the  two
defendants.   This  agreement came in the form of  the  exclusive
agreement between the Group and Providence, expanded in  1994  to
include  pain management services.  No one disputes that such  an
exclusive contract for medical services is not in itself  illegal
or evidence of a conspiratorial intent.  Lee, 999 P.2d at 762.
27Providence and the Group essentially ask us to combine the first
two  elements of the restraint of trade prima facie  case:  i.e.,
whether (1) there was an agreement or conspiracy; and (2) whether
the  persons  intended to harm or restrain competition.   Id.  at
762.  As we detail below, we choose to expand this discussion  to
include   considerations  of  the  consequences  of   defendant's
conduct,  an  often essential inquiry when considering  proof  of
28See, e.g., SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 969-70
(10th  Cir.  1994); Olympia Equip. Leasing Co. v.  Western  Union
Tel.  Co.,  797 F.2d 370, 379 (7th Cir. 1986) ("Most  businessmen
don't   like  their  competitors,  or  for  that  matter  competi
tion.  .  . .  That is fine, however, so long as they do not  use
methods  calculated  to  make consumers worse  off  in  the  long
run.");  Aspen  Skiing Co. v. Aspen Highlands Skiing  Corp.,  472
U.S.  585, 605 (1985) ("If a firm has been attempting to  exclude
rivals  on  some  basis  other than  efficiency  it  is  fair  to
characterize its behavior as predatory.").
29Phillip E. Areeda & Herbert Hovenkamp, VI Antitrust Law   1400a
(2d ed. 2003).
30See P. Areeda, VI Antitrust Law  1400b (2d ed. 2003).
31American Tobacco Co. v. United States, 328 U.S. 781, 809 (1946).
32P. Areeda, VII Antitrust Law  1506 (2d ed. 2003).
33American Tobacco, 328 U.S. at 809-10.
34Appellants cite Capital Imaging Assocs., P.C. v. Mohawk  Valley
Med.  Assocs.  Inc., 996 F.2d 537, 545 (2d Cir. 1993),  for  this
35Oltz, 861 F.2d at 1449-50.
36See,  e.g.,  Consol. Metal Prods., Inc. v.  American  Petroleum
Inst., 846 F.2d 284, 292-93 (5th Cir. 1988).
38Id. at 297.
39One  pain service clinician from Providence Hospital  testified
that  patients  had  to sometimes wait up to eight  hours  for  a
40Several  physicians  testified that they  felt  unbundling  was
unethical  and  at  times could be even  illegal  (such  as  when
Medicare or Medicaid was involved).
41The  Group  objects to this evidence because the  procedure  in
question "is part of acute pain management, and not chronic  pain
management  at  issue in this case." Regardless,  other  evidence
demonstrated that Davy's duties included oversight of the chronic
pain   management  service  at  issue,  and  his  salary  package
regarding  these duties included incentives for profitability  of
the pain clinic.  One physician observed of Davy generally, "[m]y
understanding was that he was indifferent to whether the patients
had  pain  or  not,  as long as he was able to  charge  for  it."
Another  observed  that  Davy  was eventually  fired  because  of
billing  irregularities and the quality  of  his  operating  room
42See   Consol.   Metal  Prods.,  846  F.2d  at  297   (measuring
reasonableness of restraint by general effects on  market  rather
than circumstances of particular application).
43Tuck estimated that Chandler would have received $351,523 more in
 compensation between 1996 a
44Tuck estimated that Chandler would have received $351,523  more
in compensation between 1996 and 1998 but for the restrictions on
the  practice of Borrello,  $252,468 more in compensation between
1995  and  1998 but for the prohibition on patient  referrals  to
Chandler  or Borrello, and $627,681 more in compensation  between
1995  and  1998 but for the "dumping" of Medicare  patients.   In
all, this amounted to $1,231,672 in total estimated lost profits.
45Questions of law are reviewed de novo; under this standard,  it
is  this  court's  duty "to adopt the rule of law  that  is  most
persuasive  in light of precedent, reason, and policy."   Langdon
v.  Champion, 752 P.2d 999, 1001 (Alaska 1988) (quoting Brooks v.
Brooks, 733 P.2d 1044, 1055 (Alaska 1987)).
46884 P.2d 1236 (Utah 1994).
47Id. at 1240.
49Id. at 1240-41.
50839 F.2d 1009 (4th Cir. 1988).
51Id. at 1013.
53Id. at 1014.
54Id. at 1013-14.
55Geolar, Inc. v. Gilbert/Commonwealth, Inc., 874 P.2d  937,  946
(Alaska 1994).
56Tuck's  math  appears to be faulty.  After  a  20%  decline  of
profits, profits would be 4/5 of pre-decline profits.  To  regain
the  pre-decline profits would take a 25% increase (4/5 *  5/4  =
57Tuck  surmised  that  he could not have investigated  patients'
records  because  billing records were purged from  the  computer
system every year.
58City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216,
223 (Alaska 1978) (quoting Levene v. City of Salem, 229 P.2d 255,
263 (1951)).
59AS 45.50.576(a) provides in part:

                A  person who is injured in business or
          property  by  a violation of AS 45.50.562  --
          45.50.570 . . . may bring a civil action  (1)
          for  damages sustained by the person, and  if
          the   judgment is for the plaintiff  and  the
          trier  of  fact  finds that  the  defendant's
          conduct  was wilful, the plaintiff  shall  be
          awarded   threefold  the  amount  of  damages
          sustained  by the person, plus the  costs  of
          the   suit   including  reasonable   attorney
60Borrello  sought  $47,822, a reduction  of  $108,294  from  his
alleged incurred fees (based on a 40/60 division between him  and
Chandler, respectively).
61This court reviews a trial court's award of attorney's fees for
an  abuse  of discretion.  Davila v. Davila, 908 P.2d 1027,  1031
(Alaska 1995).
62Blackford v. Taggart, 672 P.2d 888, 891 (Alaska 1983).
63Procedurally, Chandler also argues that defense never moved for
directed  verdict on this particular issue of damages,  and  thus
was barred the right to seek a j.n.o.v.  Alaska Civil Rule 50(a),
describing  motions for directed verdicts, simply  requires  that
the  motion  "shall  state the specific grounds  therefor."   The
record  demonstrates  that Providence and  the  Group  moved  for
directed  verdict  on "all damage claims."   As  opposed  to  our
federal counterpart, which requires the motion to raise both  the
law  and  the  facts  on which the moving party  is  entitled  to
judgment,  Federal Rule of Civil Procedure 50(a)(2),  this  court
simply looks to whether or not the party moving for j.n.o.v. made
an  adequate motion as to the grounds for directed verdict.  See,
e.g.,  Metcalf v. Wilbur, Inc., 645 P.2d 163, 170 (Alaska  1982).
Here that requirement was met.
6410 P.3d 594, 599 (Alaska 2000).
65Fairbanks Fire Fighters Ass'n, Local 1324, Int'l Ass'n of  Fire
Fighters v. City of Fairbanks, 934 P.2d 759, 761-62 & n.5 (Alaska
1997); Ehredt v. DeHavilland Aircraft Co., 705 P.2d 446, 452  n.8
(Alaska 1985).
66Curt's  Trucking Co. v. City of Anchorage, 578  P.2d  975,  981
(Alaska 1978).
67See, e.g., State v. Stanley, 506 P.2d 1284, 1293 (Alaska  1973)
(allowing  shipowner to recover for lost earnings,  citing  basic
principle of tort damages that "an injured person is entitled  to
be  replaced as nearly as possible in the position he would  have
occupied  had  it  not  been for the defendant's  tort");  Miller
Indus. v. Caterpillar Tractor Co.,733 F.2d 813, 818-20 (11th Cir.
1984) (allowing crew members to recover for lost wages which were
dependent on tortiously incapacitated vessel's catch);  Kisor  v.
Tulsa  Rendering  Co.,  113 F. Supp.  10,  19  (W.D.  Ark.  1953)
(allowing  personal injury victim to recover for loss  of  time);
Denco  Bus Lines, Inc. v. Hargis, 229 P.2d 560, 562 (Okla.  1951)
(listing  loss  of work time and consequent loss of  earnings  as
part of pecuniary loss).
68Restatement (Second) of Agency  292 (1957) (emphasis added).
69Id. at cmt. (a).
70See AS 10.45.020-.030; AS 10.45.140(a).
71See supra discussion at pp. 28-30 and Bettius & Sanderson, P.C.
v.  Nat'l  Union Fire Ins. Co., 839 F.2d 1009, 1013-14 (4th  Cir.
72 574 P.2d 445 (Alaska 1978).
73Tobeluk  v. Lind, 589 P.2d 873, 878 (Alaska 1979); Davidsen  v.
Kirkland, 362 P.2d 1068, 1070 (Alaska 1961).
74Greater Anchorage Area Borough v. Sisters of Charity of House of
Providence, 573 P.2d 862, 863 (Alaska 1978).
75Id.; see also Gregory, 574 P.2d at 445.
76See Hansen v. Stroecker, 699 P.2d 871, 875 (Alaska 1985).