Branch v. Hempstead County Memorial Hosp., Civ. No. 80-4073.

Decision Date23 April 1982
Docket NumberCiv. No. 80-4073.
Citation539 F. Supp. 908
PartiesJames W. BRANCH, Jr., Plaintiff, v. HEMPSTEAD COUNTY MEMORIAL HOSPITAL, et al., Defendants.
CourtU.S. District Court — Western District of Arkansas

G. William Lavender, Arnold, Lavender, Rochelle, Barnette & Franks, Texarkana, Ark., for plaintiff.

Michael Stevens, Atchley, Russell, Waldrop & Hlavinka, Texarkana, Tex., for defendants.



This is a case in which the plaintiff, Dr. James W. Branch, Jr., an osteopathic physician on the staff of Hempstead County Memorial Hospital, a county hospital, filed suit against the hospital, its administrator, and the members of the Board of Governors, alleging that his constitutional rights had been violated by the action of the Board of Governors in restricting his privilege to perform surgery in the hospital. A complaint was originally filed on October 14, 1980, alleging a cause of action under 42 U.S.C. § 1983, 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 1988. It was alleged that this Court has jurisdiction under the provisions of 28 U.S.C. § 1343(3), (4). In addition to the initial complaint, and contemporaneously with the filing of it, the plaintiff filed a motion for a temporary restraining order and a preliminary injunction. The contents of the complaint, as amended by an amended complaint filed February 1, 1982, will be discussed in more detail below.

In short, the complaint alleges that the hospital, acting through its Board of Governors, on July 10, 1980, summarily denied plaintiff the privilege to perform surgical operations in the hospital without providing him with due process of law, in violation of his rights guaranteed by the United States Constitution and the by-laws of the hospital.

In due time, the defendants answered the complaint and filed a response to the motion for temporary restraining order and preliminary injunction, objecting thereto.

The matter was referred to Magistrate Ned A. Stewart, Jr., with directions that he schedule and hold a hearing relative to the claim for a temporary restraining order and preliminary injunction. The hearing was scheduled by Magistrate Stewart on November 12, 1980, but before the hearing commenced, the plaintiff agreed to drop the request for a temporary restraining order and preliminary injunction in exchange for defendant's agreement to provide to the plaintiff a due process hearing. The parties were to submit to the Court an agreed consent order. The consent order was presented to United States District Judge George Howard, Jr., on December 18, 1980, signed and approved by the attorney for the defendants and by plaintiff, Dr. Branch, individually. The consent order provided, among other things, that a hearing would be held by a hearing committee composed of Drs. George Garrett and J. E. Little, and Board Members Joe Short, Harold Hendrix and Tommy Love. The consent order provided the time table that was to be followed and provided that on or before December 1, 1980, plaintiff "will be supplied with formal written notice of all charges against him, including identification of all cases of treatment to be relied upon." It was provided that the hearing committee would convene on December 15, 1980, and continue until completed and that the committee would return its decision on or before January 2, 1981. The order provided that "the burden of proof before the hearing committee shall be by preponderance of the evidence." It further provided that "questions of procedure and evidence shall be controlled by the rules and statutes governing administrative proceedings under the Arkansas Administrative Procedures Act."

The hearing was held as scheduled, and on December 31, 1980, each member of the hearing committee executed a document entitled "Findings of Fact and Conclusions of Law." This document was filed with the Court on January 13, 1981. The findings of fact contained in the document are in considerable detail, consisting of 22 separate findings, with these separate findings, in total, containing 29 separate subparts.

In addition, the document signed and filed by the hearing committee established by the consent order set forth the following conclusions of law made by the committee, to-wit:

1. That the aforesaid findings of fact made by this Committee were proven by a preponderance of the evidence.
2. That James W. Branch, Jr., D.O., may treat trauma in the emergency room of Hempstead County Memorial Hospital and may perform minor procedures in the emergency room of Hempstead County Memorial Hospital.
3. That James W. Branch, Jr., D.O., can not perform any of the following types of surgery at Hempstead County Memorial Hospital as chief operating surgeon: (a) vascular surgery; (b) thoracic surgery; (c) neuro surgery; (d) intra-abdominal surgery; (e) orthopedic surgery; or, (f) urological surgery. That James W. Branch, Jr., D.O.'s surgical privileges to perform the above types of surgery as chief operating surgeon at Hempstead County Memorial Hospital should be and the same are suspended.
4. That James W. Branch, Jr., D.O. may assist in surgical procedures, at Hempstead County Memorial Hospital, only a board certified or board eligible surgeon on the staff of Hempstead County Memorial Hospital, which said board certified surgeon or board eligible surgeon can not be in association or practice with Dr. James W. Branch, Jr., D.O.

Although both the consent order and the medical staff by-laws attached to the complaint filed by the plaintiff and introduced as evidence at the trial provide that a doctor may appeal an adverse decision by the hearing committee to the full Board of Governors within 15 days of the decision, there is no indication in the record that the appeal to the Board of Governors was made.

The matter was tried to the Court without a jury on February 1 and 2, 1982, and at the conclusion of the trial, the Court, at the request of counsel, established a briefing schedule and took the matter under advisement. The briefs of counsel for the parties have been filed and considered by the Court, and after consideration of the evidence, the Court now makes and files its findings of fact and conclusions of law, separately stated.


From the evidence adduced at the trial in this matter, the Court makes the following findings of fact:

1. That James W. Branch, Jr., D.O., is an individual residing at Hope, Hempstead County, Arkansas, and is licensed to practice medicine in the State of Arkansas.

2. That Hempstead County Memorial Hospital is a county hospital organized under and operating pursuant to the laws of the State of Arkansas at Hope, Hempstead County, Arkansas.

3. That defendant, Billy Richburg, was at all times pertinent the Administrator and Chief Executive Officer of the hospital and acting in his official capacity as such.

4. That the defendants, Joe Short, Travis Mitchell, Harold Hendrix, Paul Choate, LaGrone Williams, Roxie Lawrence and Tommy Love, were at all times pertinent hereto duly appointed and acting members of the Board of Governors of the hospital and were, at times relevant hereto, operating and acting in their official capacities.

5. That the defendant, C. Lynn Harris, M.D., was at all times pertinent hereto acting in his capacity as Chairman of the Credentials Committee of the hospital's medical staff.

6. That on or before July 10, 1980, plaintiff was a member of the hospital's medical staff, classified as being in an active status and authorized to conduct general surgery in the hospital.

7. That on or about May 12, 1980, Administrator Richburg received a telephone call from Dr. Donald Duncan, a surgeon with a specialty of gastrointestinal endoscopy, of Texarkana, Arkansas, complaining of a surgical procedure used by plaintiff on a patient that was subsequently referred to Dr. Duncan. This particular patient later died, with at least one of the causes being complications from the surgery performed by plaintiff.

8. That Administrator Richburg brought this complaint to the attention of Board Member Joe Short, an attorney, who, shortly thereafter, in a telephone conversation, discussed the complaint with Dr. David Stephens, Chief of the hospital's medical staff.

9. That on May 27, 1980, at the request of the Credentials Committee of the hospital staff, Dr. Duncan wrote a letter (Plaintiff's Exhibit 2) which, in pertinent part, provided as follows:

On May 8, 1980, Mr. Curtis Dorman was referred from Hempstead County Hospital to me by Dr. Jimmy Branch. Dr. Branch had operated on him approximately one week prior to his transfer here. It was necessary to re-explore him on May 9, 1980, on which occasion I found the following:
(a) Perforation of the cecum with fecal contamination of the abdominal cavity;
(b) Retrocolic loop choledochojejunostomy with a row of staples across the afferent loop spanning the distance across approximately three-fourths of the bowel;
(c) Peritonitis secondary to leakage of bowel contents around a T-tube that had been placed in the efferent loop.
(d) Severe pancreatitis.

In my opinion the technique that had been followed was neither one that is recognized generally nor one that was appropriate in this case. Based on my findings at the time of this surgery I advised Dr. Branch of my opinion that he should not operate.

After receipt of the letter, the hospital administration took no immediate action because the Credentials Committee of the medical staff had a regularly scheduled meeting on June 12, 1980, but no substantive action was taken by the Credentials Committee, with at least one of the doctors on the committee indicating that he didn't think that the committee ought to get involved at this point. In discussion, it was decided that Dr. Lowell Harris would investigate the matter and talk to Dr. Branch and he did so on June 20, 1980, apparently with little result. The hospital administration still took...

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4 cases
  • Brandt v. St. Vincent Infirmary, 85-142
    • United States
    • Arkansas Supreme Court
    • December 16, 1985
    ...treatments except in accordance with conditions prescribed by the governing body of that institution. In Branch v. Hempstead County Memorial Hospital, 539 F.Supp. 908 (W.D.Ark.1983) the issue of a physician's rights within a public hospital was addressed. In Branch, the court merely require......
  • Arkansas State Medical Bd. v. Leipzig, 88-270
    • United States
    • Arkansas Supreme Court
    • May 30, 1989
    ...Such a notice must afford them an opportunity to prepare and present their positions or defend themselves. Branch v. Hempstead County Memorial Hospital, 539 F.Supp. 908 (W.D.Ark.1982). In the case at bar, when we consider the transcript in its entirety, we must conclude that appellee had ad......
  • Priest v. United Parcel Service
    • United States
    • Arkansas Court of Appeals
    • September 17, 1997
    ...(1997). One aspect of due process is the opportunity to subpoena and cross-examine adverse witnesses. Branch v. Hempstead County Mem'l Hosp., 539 F.Supp. 908 (W.D.Ark.1982) (cross-examination); Smith, 276 Ark. at 431-32, 637 S.W.2d at 538. The right to cross-examine adverse witnesses extend......
  • Toussaint v. Laurens County Health Care System, 88-3903
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • July 25, 1988
    ...of the appeal. The judgment of the district court dismissing the action is accordingly AFFIRMED. 1 Branch v. Hempstead County Memorial Hospital, 539 F.Supp. 908, 911 (W.D.Ark.1982). ...

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