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Odom v. Fairbanks Memorial Hospital Lutheran Health Systems3/17/2000
nstitute per se categories . . . ."). The three characteristics which are "indicative of per se illegal boycotts : (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.
"' 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 " 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/Malpractice/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 th
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