Nos. 84-3256, 84-3603.
May 16, 1989.
Donald E. Christopher, Orlando, Fla., Clark Havighurst, Durham, N.C., Hal K. Litchford, Litchford, Christopher Milbrath, P.A., Orlando, Fla., for plaintiffs-appellants.
Elizabeth R. Hilder, F.T.C., Washington, D.C., for amicus F.T.C.
William E. Loucks, Daytona Beach, Fla., for Volusia County Medical Soc.
James E. Slater, Orlando, Fla., for Willis Stose, M.D.
J. Charles Ingram, G.B., McVay Voght, Hannah, Marsee, Bilk Voght, Orlando, Fla., for Daytona, Humana, Boye, Marino.
Clinton R. Batterton, David A. Donohoe, Washington, D.C., Harold C. Hubka, Daytona Beach, Fla., for Halifax Hosp. Medical Center.
Ronald L. Harrop, Dennis R. O'Connor, Gurney Handley, P.A., Orlando, Fla., for Roberson and Smith M.D.'s.
Adams Hill, Janet W. Adams, Orlando, Fla., for Ormond Beach Hosp.
Emmet J. Bondurant, Bondurant, Mixson Elmore, Michael B. Terry, Atlanta, Ga., for amicus Hosp. Authority of Clarke County.
Appeals from the United States District Court for the Middle District of Florida.
Senior U.S. Circuit Judge Elbert P. Tuttle has elected to participate in further proceedings in this matter pursuant to 28 U.S.C.A. § 46(c).
We granted rehearing en banc in this case, see Bolt v. Halifax Hosp. Medical Center, 861 F.2d 1233 (11th Cir. 1988), to consider whether the appellee hospitals and their medical staffs were exempt from federal antitrust liability under the state action doctrine of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), as recently interpreted by the Supreme Court in Patrick v. Burget, 486 U.S. 94, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988). A panel of this court had answered this question affirmatively, concluding that Florida's regulatory scheme, which provided for probing judicial review of peer review board decisions regarding medical staff privileges, constituted "active state supervision" sufficient to invoke Parker's state action exemption. See Bolt v. Halifax Hosp. Medical Center, 851 F.2d 1273, 1282 (11th Cir. 1988).
In oral argument before the en banc court, the appellee hospitals and their medical staffs formally withdrew any claim that they were immune from antitrust liability under the state action exemption. Thus, whether or not the defendants are entitled to immunity under Parker's state action exemption, they now have clearly waived that immunity in this case. Since we granted rehearing solely to consider this issue, further consideration of the case by the en banc court is unnecessary.
The court therefore reinstates the panel opinion, see Bolt v. Halifax Hosp. Medical Center, 851 F.2d 1273 (11th Cir. 1988), with the exception of the opinion's discussion of the state action exemption, see id. at 1279-84, which remains vacated and without precedential value. The case is thus remanded to the panel, which shall reconsider its decision in light of the hospitals' and medical staffs' waiver of immunity and the parties' outstanding petition for rehearing.
IT IS SO ORDERED.