Arizona Osteopathic Medical Ass'n v. Fridena

• Decision Date: 20 August 1969
• Docket Number: CA-CIV,No. 1,1
• Citation: 10 Ariz.App. 232,457 P.2d 945
• Parties: ARIZONA OSTEOPATHIC MEDICAL ASSOCIATION, a corporation, and Phoenix General Hospital, Inc., a corporation, Appellants, v. Daniel T. FRIDENA, Appellee. 670. . Division 1
• Court: Arizona Court of Appeals

Page 945

457 P.2d 945

10 Ariz.App. 232

ARIZONA OSTEOPATHIC MEDICAL ASSOCIATION, a corporation, and Phoenix General Hospital, Inc., a corporation, Appellants, v. Daniel T. FRIDENA, Appellee.

No. 1 CA-CIV 670.

Court of Appeals of Arizona.

Division 1.

Aug. 20, 1969.

Rehearing Denied Sept. 22, 1969.

Lewis, Roca, Beauchamp & Linton, by Roger W. Kaufman, Phoenix, for appellants.

Dykes, Selden, Bayham & Fike, by Alan Philip Bayham, Phoenix, for appellee.

MOLLOY, Judge.

This is an appeal from the issuance of two writs of mandamus ¹ requiring that the petitioner, an osteopathic physician, be restored to membership in the Arizona Osteopathic Medical Association and restored to membership and to his position on the staff of the respondent Phoenix General Hospital, Inc.

There are two questions raised on review. The first concerns whether there was sufficient notice and an opportunity to be heard afforded to the petitioner prior to his expulsion from the Association on September 22, 1965.

Under the Bylaws of the Arizona Osteopathic Medical Association, all ethical complaints are referred to its Committee on Ethics. This Committee is required to make an investigation of the complaint against one of its members and, at the conclusion of its investigations, it may dismiss the complaint, reprimand the accused member, or it may recommend that the accused's membership in the Association be suspended or revoked. If the latter is its decision, the Committee is required to file written charges with the Board of Trustees. When such charges are filed, the Bylaws require that the Committee '* * * shall send a copy thereof by registered mail to the accused member.' The Bylaws further provide that '(u)pon Receipt of such notice from the Committee, the accused member shall have ten days in which to notify in writing the Board of his rejection of the conclusions and decision of the Committee on Ethics and if he so desires, he may apply in writing to the Board for a hearing which shall be granted to him.' (Emphasis added.)

In this case, the Committee on Ethics received a number of complaints pertaining to the petitioner which generally involved overcharging and continuing to treat patients when his services were no longer necessary. The complaints upon which the Committee acted were received in the latter part of 1964 and early 1965. During these years, the Committee on Ethics was co-chaired by Paul Edgar and C. Condie Call, doctors of osteopathy. However, as to these particular complaints, Dr. Call served as the 'acting chairman' and was the person upon whom the Committee relied to give notice of its various proceedings to the petitioner. At all times concerned, Dr. Call was involved in a bitter controversy with the petitioner over their joint business interests in two other osteopathic hospitals in the Phoenix area. Dr. Call, in his testimony to the trial court, frankly admitted that he bore 'resentment' against petitioner.

It is clear in this record that the Committee mailed various notices to the petitioner of its various meetings and did on occasion telephone him to inform him of a meeting. Most of the meetings of the Committee were ignored by the petitioner but he did appear before it on at least two occasions. At the time of the first of these appearances, the Committee voted to absolve him from any censure, but subsequently voted to bring formal charges against him before the Board of Trustees.

The undisputed evidence is that the petitioner kept rather unusual office hours, usually not coming into his office until 6 p.m., and then working on to a late hour. The petitioner's treatment of registered mail was also unusual. He had instructed the personnel in his office, which was open during the daytime, not to accept registered mail, and, when he received notices of the arrival of such mail, the petitioner habitually failed to pick up the mail from the post office. The fact that the petitioner had these eccentricities was well-known to the members of the Committee on Ethics, and to the Board of Trustees of the Association.

The formal complaint filed against the petitioner by the Ethics Committee was submitted to the executive director of the Association sometime in August, or in September, of 1965. The executive director thereupon mailed a copy of the complaint to the petitioner, by registered mail, which apparently ² contained a notice to appear before the next meeting of the Board of Trustees to show cause why his membership in the Association should not be subject to disciplinary action.

The next meeting of the Board of Trustees was held on September 22, 1965, and at this meeting petitioner did not appear. At the time of this meeting, the Board was well aware that the petitioner had not received a copy of the complaint filed against him because the complaint had been returned to the Association by the postal authorities prior to this meeting. Other than the mailing of this registered letter, no other effort was made to notify the petitioner of the meeting at which he was expelled. On the afternoon of the meeting, Dr. Call and the petitioner were together, discussing mutual business affairs, but Dr. Call made no mention to the petitioner of the impending meeting in the evening at which disciplinary action was to be determined. The petitioner testified that when he had received notices of registered mail previously, in connection with the investigation of the Committee on Ethics, he had talked over the telephone with Dr. Call to inquire as to the purpose of these communications from the Association and had been informed by Dr. Call: 'It wasn't important. Forget it. I'll take care of it for you.'

The charges against the petitioner were presented to the Board at its September 22 meeting by Dr. Call and expulsion was voted. The petitioner was given no notice whatsoever of any proceeding to revoke his membership in the Phoenix General Hospital and to remove him from its staff. This action was taken on September 23, 1965, on the basis of the expulsion on the previous day by the Association. Notice of revocation of his hospital privileges was hand-delivered to the petitioner on September 24, 1965.

This case was submitted to the court without a formal trial on the basis of depositions and the testimony of petitioner taken in a related civil action. This other civil action was tried before the same trial judge who rendered decision of this case The evidence submitted contains very little evidence as to the substantive reasons for the expulsion of the petitioner, the contentions below and here being centered on the question of whether there was procedural due process. We believe that the decision reached, nullifying the expulsions, is justified from this standpoint.

When membership in an association or corporation is a necessary prerequisite to practicing a profession or a trade, the accused member has a right to a reasonable and adequate notice of the hearing at which the termination of his membership is to be considered and, at such a hearing, he must be afforded a reasonable opportunity to be heard. See Cunningham v. Burbank Board of Realtors, 262 Cal.App.2d 211, 68 Cal.Rptr. 653, 655 (1968), and cases cited; Swital v Real Estate Commissioner, 116 Cal.App.2d 677, 254 P.2d 587, 588 (1953); The Florida Bar v. Fussell, 179 So.2d 852 (Fla.1965); Virgin v. American College of Surgeons, 42 Ill.App. 352, 192 N.E.2d 414, 423 (1963); Berberian v. Lancaster Osteopathic Hospital Ass'n, Inc., 395 Pa. 257, 149 A.2d 456 (1959); Blenko v. Schmeltz, 362 Pa. 365, 67 A.2d 99, 20 A.L.R.2d 523 (1949). See also Developments in the Law: Judicial Control of Actions of Private Associations, 76 Harv.L.Rev. 983, 1028 (1963); Annot., 20 A.L.R.2d 531, 542; and the articles collected in the paragraph corresponding with unofficial headnotes 2--4 in Higgins v. American Society of Clinical Pathologists, 51 N.J. 191, 238 A.2d 665, at 669--670 (1968).

When there is a clearly provided requirement of notice in the controlling regulations of such a society for the giving of notice, it is our view that such requirements must be substantially met. See, e.g., Berberian v. Lancaster Osteopathic Hospital Ass'n, Inc., Supra, at 149 A.2d 459; Virgin v. American College of Surgeons, Supra; American Institute of Real Estate Appraisers v. Hawk, 436 S.W.2d 359, 364--365 (Tex.Civ.App.1968); 76 Harv.L.Rev. 983, at 1021 et seq.

However, if such bylaw standard is insufficient to provide '* * * notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. * * *' Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950), then such additional notice as may be necessary to meet this constitutional minimum must be given.

When a person to be given notice intentionally avoids receipt of notice, then there may be occasions when a court is justified in holding that such person has waived his constitutional rights in this regard. See Robel v. Highline Public Schools, 65 Wash.2d 477, 398 P.2d 1 (1965). But the evidence here does not compel a reversal of the trial court's finding that insufficient notice was given.

While the petitioner was undoubtedly extremely lax in representing his interests before the Committee on Ethics, we do not believe that this necessarily waived his right to be given notice of the hearing at which effective action could be taken to suspend or expel him. The petitioner may very well have come to the conclusion that, with Dr. Call in charge of the Committee making the preliminary investigation, his chances of avoiding formal charges were not bright. However, the petitioner, as a former member of the Committee on Ethics and a former member of the Board of Trustees, must have known that the Bylaws foreclosed the Committee on Ethics from taking any final action against him, other than a...