John Hahn Wade Liggett Joseph Aizawa V.G. Livingston Hugh Fraser Hide Aizawa v. Oregon Physicians' Service Physicians' Association of Clakamas County

Appellants appeal the district court’s grant of summary judgment to appellees dismissing appellants’ claim of violation of the Sherman Act, 15 U.S.C. § 1 . We reverse and remand.

FACTS

Appellants are licensed doctors of podia-tric medicine (D.P.M.’s) practicing in Oregon. Under state law, podiatrists are licensed to perform all foot procedures that medical doctors (M.D.’s) and doctors of osteopathic medicine (D.O.’s) may perform, except that they may not administer general or spinal anesthetics, or perform amputations. O.R.S.. § 677.805(4).

Appellee Oregon Physicians’ Service (OPS), founded by physicians, offers and administers a prepaid health care plan. At all relevant times, membership in OPS was limited to physicians and surgeons licensed to practice in Oregon. From 1974 to 1983, between 90 and 93 percent of all eligible M.D.’s and D.O.’s in Oregon were OPS members. In the same period, 16 percent of the population of the Portland metropolitan area were subscribers.

In the early 1970s, several of the appellants applied for membership in OPS, but were denied under OPS’s policy of admitting only physicians. At that time, a majority of OPS’s governing board of trustees were…