891 F.2d 864 (11th Cir. 1990), 88-8880, Faucher v. Rodziewicz

Docket Nº:88-8880.
Citation:891 F.2d 864
Party Name:Mary Marie FAUCHER, M.D., and Milstead Anesthesia, P.C., Plaintiffs-Appellants, v. Thomas L. RODZIEWICZ, M.D. Individually and as Clinical Director for the Department of Anesthesia of Rockdale County Hospital, Archer A. Rose, individually and as Executive Director of Rockdale County Hospital, The Rockdale County Hospital Authority, d/b/a Rockdale H
Case Date:January 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 864

891 F.2d 864 (11th Cir. 1990)

Mary Marie FAUCHER, M.D., and Milstead Anesthesia, P.C.,



Thomas L. RODZIEWICZ, M.D. Individually and as Clinical

Director for the Department of Anesthesia of Rockdale County

Hospital, Archer A. Rose, individually and as Executive

Director of Rockdale County Hospital, The Rockdale County

Hospital Authority, d/b/a Rockdale Hospital, Defendants-Appellees.

No. 88-8880.

United States Court of Appeals, Eleventh Circuit

January 9, 1990

Page 865

[Copyrighted Material Omitted]

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        Randolph A. Mayer, Mayer, Nations and Perkerson, William W. Calhoun, Atlanta Ga., for plaintiffs-appellants.

        Gary Flack, Atlanta, Ga., for Thomas L. Rodziewicz.

        Anne S. Rampacek, Kevin E. Grady, Alston and Bird, Atlanta, Ga., for Thomas L. Rodziewicz, Rockdale County Hosp. and Archer A. Rose.

        Appeal from the United States District Court for the Northern District of Georgia.

        Before KRAVITCH, Circuit Judge, HILL [*], Senior Circuit Judge, and POINTER [**], Chief District Judge.

        HILL, Senior Circuit Judge:

        Dr. Mary Marie Faucher was the only anesthesiologist on the staff of the Rockdale County Hospital, and served as Clinical Director of the Anesthesiology Department under a one year contract entered into on December 19, 1984. Dr. Faucher remained under an expired contract, however, until late March, 1987. At that time the Hospital Authority elected to enter into a contract with Dr. Rodziewicz as Clinical Director, but permitted Dr. Faucher to remain on the medical staff.

        On June 26, 1987, Dr. Rodziewicz wrote a memorandum requiring roughly twenty-four hours notice if a surgeon wished to utilize Dr. Faucher's services; far fewer surgeons requested Dr. Faucher's services after the memorandum became effective.

        On August 14, 1987, Dr. Faucher filed a complaint in federal district court alleging that the defendants, acting under color of state law, had deprived her of her constitutionally protected liberty and property interests without due process of law. The district court granted summary judgment in favor of the defendants. We affirm.


  1. FACTS

            The Rockdale County Hospital Authority ("the Hospital") granted appellant Dr. Mary Marie Faucher ("Dr. Faucher") medical staff privileges in March 1983, when she joined an anesthesiology group that had an exclusive contract with the hospital to provide anesthesiology services there. On December 19, 1984, Dr. Faucher entered into a one year contract as Clinical Director of the Anesthesiology Department; she remained as director and sole provider of anesthesiology until June 1987, although neither party attempted to renew the contract. Her professional corporation, Milstead Anesthesia, P.C. ("Milstead") became the only provider of anesthesiology services throughout this period.

    Page 867

            In January 1987 the hospital began a search for a Clinical Director and asked Dr. Faucher to apply for the position. By February 14, 1987, the hospital had narrowed its search and sent identical proposed written contracts to Dr. Faucher, Dr. Rodziewicz and a third candidate. The proposed contract contained substantially the same terms as those included in the hospital's agreements with its other hospital-based physicians, and provided, inter alia, that the physician's medical staff privileges at the hospital would automatically terminate at the end of the contract. Furthermore, because of a recent Georgia Court of Appeals decision holding hospitals liable for the negligence of hospital-based physicians, the proposed contract required the hospital-based physician to indemnify the hospital for any claims arising from his services.

            Dr. Faucher, unlike the other two candidates, objected vigorously to these terms. On March 3, 1987, Dr. Faucher, after consultation with her attorneys, sent a three-page letter to Mr. Archer Rose, the Executive Director of the Hospital, listing numerous objections. In particular, she strongly objected to the indemnification provisions, and to provisions under which medical staff privileges terminated when the contract ended. On at least three later occasions, Dr. Faucher repeated her unwillingness to enter into the proposed contract. Thus, the hospital instead awarded the contract to Dr. Rodziewicz, who assigned the contract to his professional corporation. The contract was not exclusive, and Dr. Faucher retained her staff privileges at the hospital. 1

            On June 26, 1987, still several days before Dr. Rodziewicz's contract went into effect, Dr. Rodziewicz wrote a scheduling memorandum outlining the procedures for surgeons in need of anesthesiology services to follow. The memorandum stated that Dr. Rodziewicz's group would provide anesthesiology services unless a surgeon specifically requested another anesthesiologist by following outlined procedures:

    For all elective OR cases, the services of Milstead Anesthesia may be requested as follows:

    On the day immediately prior to the surgical date (e.g., June 30 for a July 1st case), the operating surgeon need only contact me personally between the hours of 8:00 a.m. and 2:00 p.m. and inform me of the request. Should no direct conversation between myself and the operating surgeon take place as specified above, the case will be assigned to Rockdale Anesthesia Services. Please note that Monday cases should be requested on the preceding Friday.

    (Emphasis supplied)

            As soon as Dr. Rodziewicz became director, requests for Dr. Faucher's services decreased dramatically.


            Dr. Faucher filed suit in federal district court, and asserted several claims arising out of Dr. Rodziewicz's assumption of the director's position. Her main claim involved a deprivation of her constitutional rights to liberty and property without due process in violation of 42 U.S.C. § 1983. She also alleged a conspiracy to discriminate on the basis of sex in violation of 42 U.S.C. § 1985, and state law claims for interference with business and employee relations. She named as defendants not only Dr. Rodziewicz, but also Mr. Archer A. Rose ("Mr. Rose"), Executive Director of the hospital, for his support of Dr. Rodziewicz's actions and for his own allegedly discriminatory conduct, and the hospital for its alleged role in the situation.

            On November 8, 1988, the district court granted the defendants' motion for summary judgment on plaintiffs' claims under sections 1983 and 1985, and dismissed without prejudice for lack of jurisdiction Dr. Faucher's pendant state law claims.

            This appeal followed.

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            The appellant has raised four issues on appeal. She first contends that the district court erred in holding that there was no state action to support her section 1983 and section 1985 claims. She next asserts that the district court erred in holding that Appellees were protected by a qualified immunity. Thirdly, she contends that the district court incorrectly granted summary judgment on appellants' claim under section 1985. Finally, she asserts that if the district court erred in granting summary judgment under her sections 1983 and 1985 claims, then it should have retained jurisdiction of her pendant state claims.

  3. State Action

            Sections 1983 and 1985 provide individuals with a private cause of action when constitutional deprivations occur under color of state law. Dr. Faucher...

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