NM Cancer Center docs say Presbyterian tried to put them out of business
Antitrust lawsuit headed for jury trial after five-year legal battle
The doctors who founded the New Mexico Cancer Center in Albuquerque at one point provided treatment for cancer patients in the Presbyterian Healthcare hospital system.
That ended after they built the New Mexico Cancer Center in 2002, and they allege in a federal antitrust lawsuit that Presbyterian retaliated by waging a campaign designed to put them out of business.
The five-year-old legal battle between two of the state’s best known health care organizations was set to go before a jury this fall after settlement talks failed, but it has been put on hold as lawyers wrangle over legal arguments.
New Mexico Oncology and Hematology Consultants Ltd., founded in 1987 by doctors Barbara McAneny and Clark Haskins, have offered a laundry list of what they contend are retaliatory and anti-competitive acts by Presbyterian — which operates both the state’s biggest health insurance company and health care system. Presbyterian denies those claims.
New Mexico Oncology and Hematology Consultants owns the New Mexico Cancer Center.
The relationship soured after the cancer group built offices and a treatment center near Paseo del Norte and Interstate 25 in 2002.
After that happened, Presbyterian created its own in-house oncology department and entered into a relationship with the MD Anderson Cancer Center in Houston.
“Presbyterian responded by threatening to
put NMOHC (New Mexico Oncology and Hematology Consultants) out of business,” the lawsuit alleges.
“When Presbyterian could effectuate that threat, it began an anti competitive campaign ... designed to put NMOHC out of business and to force its physicians to either become Presbyterian employees or leave Albuquerque.”
“Eliminating NMOHC from the market would give Presbyterian a monopoly over the various oncology services provided by NMOHC and its physicians.”
The plaintiffs lay out a litany of allegations against Presbyterian to put them out of business and corner the market. Among them:
Pressured patients to switch to Presbyterian Hospital doctors.
Lowered monetary reimbursement to the New Mexico Cancer Center.
Threatened to terminate the center’s provider contract with Presbyterian.
Entered into a contract with United HealthCare that allowed Presbyterian to limit or obstruct referrals to the cancer center.
Obtained and sold drugs through a federal Medicare program in an unlawful manner.
Mandated that cancer center patients buy their chemotherapy and support drugs through Presbyterian’s pharmacy instead of the Cancer Center’s pharmacy.
Told one patient that the cancer center was not an approved provider.
In denying the charges, Presbyterian’s attorneys claim the cancer center portrays “as sinister the way in which PHS conducts its business as an integrated health care delivery system.”
Presbyterian’s attorneys also claim in court documents that the cancer center is trying to use the lawsuit as part of a demand for higher reimbursements and more patient referrals from the Presbyterian system when the center is already the largest provider of oncology services in the Albuquerque area.
Neither side would comment for this story.
Big law firms
The case has been mired in the discovery process, with fights over what documents Presbyterian would have to turn over to the cancer center’s attorneys before trial and what witnesses would be allowed to testify.
Both sides have brought in heavyweight law firms.
Presbyterian is represented by Jones Day, one of the largest law firms in the world, and the Rodey Law Firm is local counsel.
The cancer center is represented by the George M. Sanders law firm out of Chicago, which specializes in representing doctors in antitrust cases, and Foster, Rieder & Jackson P.C. is local counsel.
The latest delay in the case before U.S. District Judge Martha Vázquez is a fight over whether McAneny and Haskins will be allowed to testify as experts who can offer opinions for a jury to consider or whether they will be limited to being “fact” witnesses.
McAneny is the presidentelect of the American Medical Association and has held many leadership roles in the local and national medical community, including president of the New Mexico Medical Society, president of the Greater Albuquerque Medical Association and president of the New Mexico Chapter of the American College of Physicians. The stakes are high. Presbyterian’s for-profit health insurance company insures more than 700,000 New Mexicans, and the not-for-profit hospital and health care delivery system is the state’s largest.
The New Mexico Cancer Center has established several satellite offices around the state, and McAneny said recently that the center had seen 87,000 patients since it opened, offering on-site oncology care, including chemotherapy, radiation therapy, imaging, laboratory and rheumatology services.
Four organizations provide medical oncology services in the Albuquerque area.
In addition to the New Mexico Cancer Center, which is owned by New Mexico Oncology and Hematology Consultants Ltd., and Presbyterian Healthcare Services, the other two are University of New Mexico Hospital Cancer Center and Hematology Oncology Associates.
The lawsuit doesn’t ask for specific money damages. Instead, the cancer center is seeking three times the amount of lost profits it can prove at trial, plus punitive damages.
It is also seeking court orders to stop Presbyterian from engaging in alleged anti-competitive activities, including refusing to contract with the cancer center, interfering with patient referrals, paying doctors to steer patients away from the cancer center and to stop Presbyterian from requiring cancer center patients with Presbyterian insurance to buy chemotherapy drugs from Presbyterian’s pharmacy.
Enough allegations
Vázquez threw out portions of the cancer center’s anti-trust lawsuit in 2014, but allowed most of it to proceed.
She concluded that the U.S. 10th Circuit Court of Appeals, which covers New Mexico, has interpreted antitrust laws more broadly than other appellate courts.
Vázquez ruled that the cancer center had alleged enough facts that a jury should decide whether there was a “dangerous probability” that Presbyterian Hospital was in a position to achieve monopoly power in the treatment of privately insured cancer patients.
A special master had to be appointed by the court to oversee the lengthy and highly disputed discovery process.
There were allegations that Presbyterian’s attorneys had failed to turn over internal emails, including those from employees who had left Presbyterian years ago.
It took more than a year for the special master to settle those conflicts, and the case appeared to be headed to trial after a settlement conference in August failed to end the lawsuit.
There are also sealed court documents filed in the last year that could impact the case.
Then, the issue of whether the cancer center’s founders, McAneny and Haskins, would be able to testify as experts and not just fact witnesses arose.
That issue has to be settled before a trial can be held, and no new date has been set.