Tarabishi v. McAlester Regional Hosp.
| Decision Date | 17 August 1987 |
| Docket Number | No. 85-2329,85-2329 |
| Citation | 827 F.2d 648 |
| Parties | Hisham TARABISHI, Plaintiff-Appellant, v. McALESTER REGIONAL HOSPITAL, aka McAlester Regional Health Center; Authority Public Trust Status; James L. Dunagin, M.D., Chief of Staff, McAlester Regional Hospital; Thurman Schuller, M.D.; Robert M. Adams, M.D.; Michael F. Boyer, M.D.; M.D. Bellamy, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Wesley Brown of Gotcher, Brown & Bland, McAlester, Okl., for plaintiff-appellant.
George F. Short (Cynthia L. Sparling, with him on the brief), Oklahoma City, Okl., for defendants-appellees.
Before SEYMOUR and BARRETT, Circuit Judges, and BROWN *, District Judge.
M. Hisham Tarabishi (Tarabishi), appeals from an adverse judgment entered in favor of McAlester Regional Hospital (MRH) and its board of trustees, hereinafter collectively referred to as appellees. Tarabishi, a medical doctor, filed this action seeking injunctive relief and damages after proceedings were initiated relative to his staff privileges at MRH.
Tarabishi moved to McAlester, Oklahoma in the spring of 1979. Upon arrival he obtained staff privileges at MRH. MRH, alias McAlester Regional Health Center Authority, is a public trust, founded under the laws of Oklahoma. 1 Tarabishi also associated himself with the McAlester Clinic. By the fall of 1979, Tarabishi had disassociated himself from the McAlester Clinic and had gone into business for himself in competition with the Clinic.
In the fall of 1982, Tarabishi publicly announced his intention to construct a clinic where he would perform out-patient surgery in competition with MRH. Thereafter, Tarabishi applied to the State of Oklahoma for a Certificate of Need for the operation of the clinic. Tarabishi's application was apparently based, in part, on his having staff privileges at MRH or a transfer agreement with MRH. During the application hearing on Tarabishi's Certificate request, MRH's administrator and one of its trustees appeared to protest the issuance of a certificate. Oklahoma granted Tarabishi a Certificate of Need on May 25, 1983.
In the later part of 1983, various ad hoc MRH committees were appointed to investigate a series of complaints against Tarabishi. Tarabishi received written notices of the charges against him on November 14, 1983, January 14, 1984, February 24, 1984, and June 1, 1984. On March 22, 1984, before any disciplinary action was taken, Tarabishi filed his original complaint herein. Interviews were conducted for each of the respective complaints and Tarabishi was invited to explain or refute the charges. Thereafter, the ad hoc committee filed reports with an executive committee. The executive committee notified Tarabishi of the formal charges against him which included: operating without discussing procedures with the patient; improper evaluation of emergency cases; disruptive behavior toward the medical staff; and an incident concerning the administration of drugs. After notifying Tarabishi of the formal charges, the executive committee selected a hearing committee to conduct hearings.
Hearings were held on April 7 and 26, 1984. Tarabishi, represented by counsel, was allowed to question various doctors about the charges against him. Following the hearings, the hearing committee reported to the executive committee that it had been unable to find a solution to the charges against Tarabishi short of revocation. The hearing committee then remanded the matter to the executive committee.
On May 10, 1984, the executive committee notified Tarabishi that his medical staff privileges at MRH had been revoked. The executive committee's decision was reviewed by MRH's board of trustees in June, 1984. An additional hearing was held and Tarabishi and his attorney were again allowed to attend and present evidence. On July 17, 1984, the board of trustees voted unanimously to revoke Tarabishi's staff privileges.
On August 16, 1984, Tarabishi filed an amended complaint in federal district court seeking: damages and injunctive relief under 42 U.S.C. Sec. 1983 for loss of his staff privileges; damages under 42 U.S.C. Sec. 1985(3) for appellees' conspiracy to violate his civil rights; and damages for appellees' tortious interference with his contractual rights and privileges at MRH and with others.
Prior to trial, appellees filed several motions to dismiss alleging that Tarabishi's complaint failed to state a claim upon which relief could be granted and that the court lacked subject matter jurisdiction. Appellees argued that plaintiff had failed to establish that the revocation of his medical staff privileges constituted action under color of state or local law, and that a conspiracy in violation of Sec. 1985(3) could not exist in the absence of action under color of state or local law. The motions were denied and the case proceeded to trial.
After both parties had rested, the appellees renewed their motions to dismiss and for a directed verdict. Tarabishi also moved for a directed verdict "as to the defendants' liability for violation of plaintiff's civil rights under 42 U.S.C. Sec. 1983, by denying the plaintiff due process and the revocation of plaintiff's hospital staff privileges." R., Vol. XIII at p. 2.462. The district court denied all the motions.
The court and counsel subsequently reviewed proposed jury instructions. Tarabishi objected to the instructions relative to acting under color of state law and good faith:
We would just object to that instruction [acting under color of state law] being given, I think that's a legal question, not a fact question, and I don't think there is any dispute as to any of the facts regarding the action by the board members being under color of state law or by being within the purview of state action. The defendants have put no evidence on to refute that, there is no dispute, no facts, there is nothing in the record to show other than state action by the board members, the board of trustees of the hospital. And I think that is a legal question, should be a directed matter.
* * *
* * *
The only other instruction is the good faith defense. I believe under the--I think it's the Oklahoma case of McGee versus Draper, 1977, it's a Tenth Circuit out of the Northern District of Oklahoma, 564 F2d 902. That before the good faith defense can be represented, it must be pled and proven affirmatively, both pled and proven. The instruction as given is correct, but.... I think it's questionable whether ... it was pled as an affirmative defense or whether there was any affirmative testimony put on to disprove or prove that affirmative defense of good faith.
R., Vol. XIII at p. 2.492 and 2.493.
Tarabishi's objections were overruled and the case was submitted to the jury. The jury returned a verdict in favor of the appellees on all three causes of action. Tarabishi's motion for a judgment n.o.v. and alternative motion for a new trial were denied.
On appeal, Tarabishi contends: (1) the evidence showed as a matter of law that MRH was acting under color of state law and it was error for the court to submit the issue to the jury; (2) the evidence showed as a matter of law that his staff privileges at MRH were a protected property interest and it was error to submit the issue to the jury; and (3) the court erred in denying his motions for a directed verdict and judgment n.o.v.
Tarabishi contends that the evidence showed as a matter of law that appellee MRH, a public trust, was acting under color of state law and that the district court erred in submitting this issue to the jury. Appellees respond that MRH was a private hospital and that the relationship between MRH and the State of Oklahoma was a proper subject for inquiry by the jury.
The provisions of Sec. 1983 apply only to persons who deprive others of rights secured by the Constitution or laws of the United States and who act under color of state statute, ordinance, regulation, custom or usage. J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.1985). The ultimate issue in determining whether a person is subject to suit under Sec. 1983 is whether the alleged infringement of federal rights is fairly attributable to the state. Milonas v. Williams, 691 F.2d 931 (10th Cir.1982).
State action does not arise, for purposes of a Sec. 1983 action to regain staff privileges, merely because a private hospital receives governmental aid and is subject to state regulation. Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir.1973). State action does not arise "solely on [the basis of] receipt of governmental funds, extensive governmental regulation and a localized geographic monopoly enjoyed by the hospital." Loh-Seng Yo v. Cibola General Hospital, 706 F.2d 306, 308 (10th Cir.1983).
Pivotal in any Sec. 1983 action is whether the challenged activity can realistically be considered state action. In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the court observed:
The ultimate issue in determining whether a person is subject to suit under Sec. 1983...
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