Opinion
No. 88-320.
March 14, 1989. Rehearing Denied May 22, 1989.
Appeal from the Circuit Court, Dade County, Steven D. Robinson, J.
Smith Supraski and Louis A. Supraski, Miami, for appellant.
Mitrani, Rynor Gallegos and Isaac J. Mitrani, Miami, Epstein, Becker Green and Lynn Shapiro Snyder, Washington, D.C., Rice Reiser and Arthur Halsey Rice, Miami, for appellees.
Before SCHWARTZ, C.J., and BARKDULL and BASKIN, JJ.
The specific conduct complained of, namely, referring patients needing health care goods or services to a business entity in which the physician has an equity interest of ten percent or more after disclosure to the patients of the physician's financial interest, is sanctioned by section 458.331(1)(gg), Florida Statutes (Supp. 1986). Thus, we find no error in the trial court's dismissal of the complaint for failure to state a cause of action; however, we remand the cause to afford appellant an opportunity to amend its complaint to state a cause of action for antitrust violations. Hajec v. Town of Medley, 189 So.2d 835 (Fla. 3d DCA 1966); Pokress v. Tisch Florida Properties, Inc., 153 So.2d 346 (Fla. 3d DCA 1963). Accordingly, we affirm the dismissal, but remand the cause for further proceedings.
BARKDULL and BASKIN, JJ., concur.
The plaintiff appellant is in the business of selling and leasing durable medical equipment, including hospital beds, oxygen supplies and the like. It sued a partnership of physicians and a competing medical corporation, alleging that the defendant doctors had been improperly steering patients to its competitor and that this conduct constituted a restraint of trade in violation of the Florida Antitrust Act, section 542.18, Florida Statutes (1985). I do not agree with the majority that the fact that, pursuant to section 458.331(1)(gg), Florida Statutes (Supp. 1986), this conduct may not form the basis of disciplinary proceedings against the physicians insulates them, much less the competing corporation (which is plainly not a doctor subject to Chapter 458 at all) from liability under the antitrust laws. Thus, I do not concur with the major premise of the majority opinion.
I do believe that no antitrust violation at all is properly stated in the complaint. Since, however, it was only the immunity question upon which the trial court ruled, I believe also that the plaintiff should be given an opportunity to amend so as to properly make such an allegation. Thus, although I express some mystification as to why the court would permit an amendment which must be useless in the light of its holding that what the defendants are accused of doing is not actionable as a matter of law, I bemusedly agree with the result.