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From MDJD 1
VII. CIVIL LIABILITY
Wisely or not, Congress created a private civil RICO action for damages.
18 U.S.C. § 1964(c). Although civil litigants were slow to warm to the provision, once its potential was fully understood,
a virtual flood of civil RICO suits inundated the federal court system. Lured by the prospect of recovering treble damages
and attorneys' fees, plaintiffs increasingly seek to resolve ordinary commercial disputes betwecn reputable business firms
through civil RICO suits. Needless to say, that has rankled the business community and has made the scope of civil RICO liability
a perpetual subject of controversy, both in the business community and in Congress.
To establish a cause of action, the
civil RICO plaintiff must allege and prove all of the elements of a criminal violation. That is, the plaintiff must show the
existence of an enterprise, an interstate commerce connection, a person who committed the RICO violation, a pattern of racketeering
activity, and one of the relationships between the racketeering activity and the enterprise designated in § 1962(a), (b),
or (c), or a conspiracy to violate §1962(a), (b), or (c). In addition, the plaintiff must prove injury to his or her business
or property by reason of the RICO violation.42
42. Congress left the task of designating the appropriate statute of
limitations for civil RICO suits to the courts...[T]he Supreme Court held that the four-year statute of limitations applicable
to civil actions brought under the Clayton Act should govern. Agency Holding Corp. v. Malley-Duff & Associates, Inc.,
483 U.S. 143 (1987). While the Supreme Court has twice considered the question of when a civil RICO cause of action accrues,
it has yet to affirmatively resolve the issue. See Rotella v. Wood, 528 U.S. 549 (2000) (rejecting the injury and pattern
discovery rule); Klehr v. A. O. Smith Corp., 521 U.S. 179 (1997) (rejecting the last predicate act rule).
Although the
vast majority of actions are filed in federal courts, the Supreme Court has ruled that state and federal courts have concurrent
jurisdiction to hear civil RICO suits. Tafflin v. Levitt, 493 U.S. 455 (1990).
In view of the harsh criticisms that
have been leveled against RICO, the picture would not be complete without noting several other developments. First, even though
Congress has been publicly seeking to reform the civil RICO provision by narrowing its scope, over the past decade or so it
has quietly been broadening civil and criminal liability by adding more than 20 additional federal predicate crimes to the
definition of racketeering activity.
Another significant trend is occurring in state legislatures. More than half of the
states now have their own RICO laws, most of which are modeled on the federal statute. 55 Many of the state laws include fraud,
schemes to defraud, and securities fraud as predicate crimes, and a fairly significant number incorporate all of the federal
predicate crimes enumerated in §1961(1). RICO does not preempt state laws that provide supplemental remedies.
55.
A summary of these statutes appears in 1 Kathleen F. Brickey, Corporate Criminal Liability, ch. 7A at app. 7A-A (2d ed. 1992).
This is a dated list from Medscape, interpretation of which requires a law degree: |
States that assumed contractual obligations without establishing them
as of 2000:
Colorado, see Even v. Longmont United Hosp. Ass'n, 629 P.2d 1100, 1103 (Colo. Ct. App. 1981)
Massachusetts,
see Duby v. Jordan Hosp., 341 N.E.2d 876, 879 (Mass. 1976)
Mississippi, see Wong v. Stripling, 700 So. 2d 296, 300-02
(Miss. 1997)
Ohio, see Bouquett v. St. Elizabeth Corp., 538 N.E.2d 113, 115-16 (Ohio 1989)
Oklahoma, see Ponca City
Hosp., Inc. v. Murphree, 545 P.2d 738, 742 (Okla. 1976)
Virginia, see Medical Ctr. Hosps. v. Terzis, 367 S.E.2d 728, 729
(Va. 1988)
States where "medical staff bylaws alone are not a contract, but, in the context of the entire relationship
between the physicians and the hospital, they are enforceable as part of a larger contractual relationship":
Connecticut,
see Gianetti v. Norwalk Hosp., 557 A.2d 1249, 1252-55 (Conn. 1989); Owens v. New Britain Gen. Hosp., 643 A.2d 233, 239 n.25
(Conn. 1994)
States where the medical staff bylaws are not a contract:
Georgia, see St. Mary's Hosp., Inc.
v. Radiology Prof'l Corp., 421 S.E.2d 731, 736 (Ga. Ct. App. 1992)
Iowa, see Tredrea v. Anesthesia & Analgesia, P.C.,
584 N.W.2d 276, 284-87 (Iowa 1998) (establishing requirements for bylaws to qualify as a contract)
Mississippi, see Sullivan
v. Baptist Mem'l Hosp. - Golden Triangle, Inc., 722 So. 2d 675, 680-81 (Miss. 1998) (but see above)
Missouri, see Zipper
v. Health Midwest, 978 S.W.2d 398, 415-17 (Mo. Ct. App. 1998) (but equitable relief is available under bylaws)
North Dakota,
see Robles v. Humana Hosp. Cartersville, 785 F. Supp. 989, 1001 (N.D. Ga. 1992)
Ohio, see Munoz v. Flower Hosp., 507 N.E.2d
360, 365 (Ohio Ct. App. 1985) (lack of contract because lack of mutuality of obligation); Holt v. Good Samaritan Hosp. &
Health Ctr., 590 N.E.2d 1318, 1322 (Ohio Ct. App. 1990)
States where hospital bylaws are contractually binding on
a hospital, but not medical staff bylaws:
Iowa, see Tredrea v. Anesthesia & Analgesia, P.C., 584 N.W.2d 276, 284-87
(Iowa 1998)
Maryland, see Ishak v. Fallston Gen. Hosp. & Nursing Ctr., 438 A.2d 1369, 1372 (Md. Ct. Spec. App. 1982)
Texas, see Gonzalez v. San Jacinto Methodist Hosp., 880 S.W.2d 436, 438-39 (Tex. Ct. App. 1994) (but see above)
Tennessee
rejects the distinction, see Lewisburg Cmty. Hosp., Inc. v. Alfredson, 805 S.W.2d 756, 759 (Tenn. 1991)
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“We shall fight on the seas and oceans, we
shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be,
we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we
shall fight in the hills; we shall never surrender.”
Copyright © 2012 H.E.Butler III M.D., F.A.C.S.
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