Berberian v. Lancaster Osteopathic Hospital Ass'n, Inc.

• Decision Date: 20 March 1959
• Citation: 395 Pa. 257,149 A.2d 456
• Parties: Harry S. BERBERIAN, Appellant, v. LANCASTER OSTEOPATHIC HOSPITAL ASSOCIATION, INC. and George C. Wolf.
• Court: Pennsylvania Supreme Court

149 A.2d 456

395 Pa. 257

Harry S. BERBERIAN, Appellant, v. LANCASTER OSTEOPATHIC HOSPITAL ASSOCIATION, INC. and George C. Wolf.

Supreme Court of Pennsylvania.

March 20, 1959.

Laurence H. Eldredge, Philadelphia, Arnold, Bricker Beyer & Barnes, John W. Beyer, Lancaster, Francis X. Diebold Philadelphia, for appellant.

Anthony R. Appeal, Lancaster, for Lancaster Osteopathic Hospital.

Alexander T. Stein, Lancaster, for George C. Wolf.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN and McBRIDE, JJ.

CHARLES ALVIN JONES, Chief Justice.

This suit in equity was instituted by Dr. Harry S. Berberian against the Lancaster Osteopathic Hospital Association, Inc., and Dr. George C. Wolf, the medical director of the hospital, to restrain them from discharging the plaintiff from the hospital's staff and from depriving him of staff and hospital privileges. The plaintiff moved for a preliminary injunction, to be made permanent upon final hearing. The complaint alleges that the plaintiff was removed as a staff member of the hospital without notice of charges against him and without a hearing as required by the by-laws of the hospital's staff. The court issued a rule on the defendants to show cause why a preliminary injunction should not be granted. After taking testimony and hearing oral argument on the rule, the court held that the plaintiff was not entitled to equitable relief and discharged the rule to show cause. From the consequent decree refusing a preliminary injunction the plaintiff took this appeal. As the material facts are not in dispute, and present for decision a pure question of law, nothing is to be gained by sending the case back for a final hearing on the bill in the court below.

The plaintiff is a licensed osteopathic physician and has been a member of the defendant hospital's staff since March 9, 1948. He testified that he was enjoyed a larger general practice in and about the City of Lancaster than any other osteopath and that his work has included a large number of obstetrical cases.

On February 27, 1958, the plaintiff was arrested on a charge of conspiracy to commit an abortion and of being an accessory before and after the fact of abortion. Promptly after this arrest, the president of the staff requested Dr. Berberian to submit voluntarily his resignation as a staff member. That, he refused to do. On March 10, 1958, the executive committee of the staff held a meeting for the purpose of determining whether to recommend the plaintiff's dismissal as a staff member because of the abortion charges that had been made against him. After notice of the call, Dr. Berberian and his counsel attended the meeting. The executive committee decided to make no recommendation pending final legal disposition of the abortion charges for which he never was indicted. On the day following the meeting called by the executive committee of the staff, the board of directors of the hospital held a meeting at which the individual defendant, Dr. George C. Wolf, was requested to prepare a report concerning Dr. Berberian.

On April 7, 1958, a combined meeting of the hospital's board of directors and the staff executive committee was held for the purpose of considering Dr. Wolf's report. The plaintiff received no notice of this meeting and did not attend. As described in the plaintiff's brief, the Wolf report, which was read at the meeting, 'contains many charges of grossly unprofessional conduct and of even criminal misconduct of a serious nature, involving moral turpitude.' On the following day, April 8, 1958, the board of directors of the hospital, after again hearing Dr. Wolf's report, adopted a resolution depriving Dr. Berberian of all staff privileges and of the use of the hospital's facilities.

It is admitted by the defendants that the dismissal of the plaintiff was based on the allegations contained in the Wolf report and not on the unpursued abortion charges. Although the plaintiff had been given a hearing in respect of the abortion charges he had never been given any opportunity to answer the report's grave allegations, most of which were based on hearsay relayed to Dr. Wolf. In fact, at the time of the hearing in the court below on the preliminary injunction motion, the plaintiff had never seen a copy of the report and had no knowledge of its contents.

It is obvious that the plaintiff will suffer irreparable harm unless injunctive relief be granted him. The corporate defendant is the only osteopathic hospital in Lancaster County. Elsewhere, the nearest of such hospitals is at York, some 30 miles distant from Lancaster, and at Harrisburg, approximately 40 miles away. For all practical purposes, therefore, the corporate defendant's hospital is the only one to which Dr. Berberian can conveniently and satisfactorily have his many obsterical and other patients admitted.

The question of the reasonableness of the hospital's action in the premises is not an issue in this case. Nor is there any doubt that Dr. Berberian was not given a hearing in respect of the charges contained in Dr. Wolf's report. The only question for determination is whether the plaintiff was legally entitled to such a hearing before being dismissed as a staff member of the hospital and denied use of the hospital's facilities.

The general rule, as stated by the courts of various jurisdictions, is the board of directors of a private hospital association may, as its own discretion, remove a physician from its staff: West Coast Hospital Ass'n v. Hoare, Fla., 64 So.2d 293, 297; Hughes v. Good Samaritan Hospital, 289 Ky. 123, 127, 158 S.W.2d 159, 161. It has, however, been held that a public hospital must give notice and hearing before a member of its staff may be removed: Findlay v. Board of Supervisors of the County of Mohave, 72 Ariz. 58, 66, 230 P.2d 526, 531, 24 A.L.R.2d 841; Alpert v. Board of Governors of City Hospital, 286 A.D. 542, 547-548, 145 N.Y.S.2d 534, 538; Johnson v. City of Ripon, 259 Wis. 84, 86-87, 47 N.W.2d 328, 330. It has also been held that even a private hospital must given a hearing before removing a physician from its staff if the duly approved constitution or by-laws so provide: Joseph v. Passaic Hospital Ass'n, 26 N.J. 557, 568-569, 141 A.2d 18, 24.

The relationship between a hospital association and a member of the hospital's staff is based on contract: see Joseph v. Passaic Hospital Ass'n, supra, at 26 N.J. 557, 568, 141 A.2d 18, 24-25; State ex rel. Wolf v. La Crosse Lutheran Hospital Ass'n, 181 Wis. 33, 38, 193 N.W. 994, 996; Johnson v. City of Ripon, supra, at 259 Wis. 84, 86, 47 N.W.2d 328, 329. Consequently in a case such as the present, the nature of the contractual relationship between the assailed staff member and the hospital association determines whether a hearing on charges against the staff member is necessary before he can be discharged from a hospital staff because of such charges.

The by-laws of the Lancaster Osteopathic Hospital Association, adopted on February 9, 1945, provide that 'The directors may deprive any member of the staff, any physician or any surgeon from the privileges of the hospital.' In addition thereto, however, the board of directors of the hospital approved the by-laws of the general staff which provide as follows in Article I, Section E: '1. The Executive Committee reserves the right at any time, but only after adequate hearing and thorough investigation, to recommend to the Board of Directors the suspension of any officer or member of the General Staff or to deprive any physician or surgeon the privilege of hospital use whenever in its judgment the good of the hospital, the patient, or community shall demand. 2. Any individual so suspended may have recourse to appeal, with legal counsel, before a joint meeting of the Executive Committee of the General Staff and the Board of Directors.' (Emphasis supplied.)

The procedure established for investigating alleged breaches of professional ethics by any member of the staff is set out in Article III, Section E(7) of the staff by-laws which provides, in part, as follows: 'The member charged with a breach of ethics shall be privileged to legal counsel of his own choosing, and shall be entitled, upon his written request, to a hearing before a Committee of the Board of Directors and a Committee of the General Staff in joint session at which hearing he may present his defense and cross examine adverse witnesses.' The current by-laws of the staff containing the foregoing provisions were expressly approved by the hospital's board of directors in December, 1957. Indeed, the president of the hospital's board of directors unequivocally gave it as his opinion, when this matter was on hearing before the court below on the plaintiff's motion for a preliminary injunction that the board of directors is bound by the by-laws of the general staff. With that conclusion, we agree.

While there can be no doubt that the board of directors of the hospital has authority to deprive a physician of the privileges of the staff, it is equally clear that the board has agreed to follow certain specified procedures before determining whether to exercise its authority in a matter of a staff member's expulsion from the hospital. The procedure so approved by the board requires an 'adequate hearing and thorough investigation' by the executive committee of the general staff and an 'appeal, with legal counsel, before a joint meeting' of the staff's executive committee and the hospital's board of directors. When the board of directors approved the staff by-laws, they became an integral part of the contractual relation between the hospital and the members of its staff.

The specification of a particular procedure, including procedural safeguards, is...