Brandt v. St. Vincent Infirmary, 85-142

Decision Date16 December 1985
Docket NumberNo. 85-142,85-142
Citation287 Ark. 431,701 S.W.2d 103
PartiesDr. Rosemary BRANDT, Appellant, v. ST. VINCENT INFIRMARY, Appellee.
CourtArkansas Supreme Court

Kenneth C. Coffelt, Dale Price, Little Rock, for appellant.

House, Wallace, Nelson & Jewell by Janice Wegener and Thomas B. Staley, Little Rock, for appellee.

HAYS, Justice.

In this case of first impression we are asked to decide whether a private hospital has the right to set its own policies regarding medical treatment, against an assertion by one of its staff physicians that those policies are arbitrary.

Appellant invoked the jurisdiction of this court pursuant to Rule 29(1)(a), alleging her constitutional rights were violated by certain hospital restrictions and the Court of Appeals certified the appeal to us on the basis of Rule 29(4)(b).

Appellant, Dr. Rosemary Brandt, is a licensed physician on the medical staff of appellee, St. Vincent Infirmary, specializing in psychiatry. She brought this suit in chancery court claiming the appellee had unreasonably, capriciously and arbitrarily restricted her right to prescribe and administer megadose vitamin therapy and candida antigens. She asked that the hospital be enjoined from such interference. Upon motions by appellee for dismissal under A.R.C.P. 12(b)(6) and for summary judgment under ARCP Rule 56, the Chancellor summarily dismissed the case, finding that appellant failed to allege facts upon which relief could be granted and that no justiciable controversy existed.

We agree with the Chancellor with respect to the Rule 12(b)(6) motion, that no cause of action was alleged upon which relief could be granted. That being so, there was no need to consider whether there were issues of material fact relevant to Rule 56. If a complaint fails to allege a cause of action in the first instance, the absence of issues of fact are of no concern. Dismissal under Rule 12(b)(6) should be granted when taking all the facts alleged in the complaint as true, the complainant is not entitled to the relief sought. See McAllister v. Forrest City Street Improvement Dist. No. 11, 274 Ark. 372, 626 S.W.2d 194 (1981). We conclude the Chancellor correctly held that no cause of action was stated.

Appellant was licensed to practice medicine in Arkansas in 1957, and began specializing in psychiatry in 1966. In 1971 she was certified by the American Board of Psychiatry and Neurology. She has been on the medical staff of appellee hospital since 1978 and has treated patients with allergic modalities and nutritional therapy. Treatments have included the use of mega-vitamins and candida vaccines, as well as the more traditional methods of psychotherapy. Sometime prior to October 16, 1984, when appellant filed this suit, she was instructed by appellee's Psychiatry Controls Committee to refrain from use of the mega-vitamins and candida vaccines except to patients with a diagnosed deficiency state or unless administered on an experimental basis. She contends these restrictions are imposed discriminately by the hospital and by its Psychiatry Controls Committee, which determined that the treatments were without sufficient scientific validation to justify their use other than on an experimental basis. Appellant declined to submit to an experimental protocol claiming the treatments are not experimental.

Appellant concedes that SVI is a private hospital, which simplifies the issue. Public hospitals are prohibited from acting arbitrarily and capriciously under the Equal Protection Clause and Due Process Clause of the 14th Amendment to the United States Constitution, and under article 2, sections 2 and 3 of the Arkansas Constitution. See Ware v. Benedikt, 225 Ark. 185, 280 S.W.2d 234 (1955). Anno: Physician, Surgeon-Hospital Exclusion, 37 ALR 3d 645, 669, (1971). And it is generally held that private hospitals are not subject to the same standards as public hospitals, 37 ALR3d 645, 649 (1971).

A private hospital however, will be considered public and subject to judicial review under some circumstances: 1) when the relationship or nexus between the state and the institution is symbiotic in character and the state has so far insinuated itself into a position of interdependence that it must be recognized as a joint participant in the challenged activity--that the nexus is sufficiently close so that the action of the institution may be fairly treated as that of the state itself, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); and 2) when the institution is dedicated to a public purpose, Greisman v. Newcomb Hospital, 40 N.J. 389, 192 A.2d 817 (1963) or may exercise some power delegated to it by the state which is traditionally reserved exclusively to the state. Jackson, supra; Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). For a discussion of the basis of state action in such cases, see generally Bello v. South Shore Hospital, 338 Mass. 770, 429 N.E.2d 1011 (1981); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (11th Cir.1982) (Hoffman, J., concurring). In both instances, the courts may review the hospital rule or policy looking for its reasonableness, as though reviewing actions or policies of a public hospital.

The Eighth Circuit Court of Appeals considered the nexus argument in a recent Arkansas case, Lubin v. Crittenden Hospital Assn., 713 F.2d 414 (8th Cir.1983). Dr. Lubin was placed on probation for misconduct as a staff member at the Crittenden Memorial Hospital, a private, nonprofit corporation. He argued the disciplinary action constituted state action and was in violation of his due process rights under the federal constitution, and rights defined under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Rejecting Lubin's argument, the court stated:

In order for the Hospital's discipline of Dr. Lubin to be classified as state action there must be a sufficiently close nexus between the challenged action of the Hospital and the state's regulation so that the action of the former may be fairly treated as that of the state itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453-54, 42 L.Ed.2d 477 (1974). "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (emphasis in original).

This court applied the nexus test in Briscoe v. Bock, supra, 540 F.2d 393 [(8th Cir.)], a case in which a physician was dismissed by a private, non-profit, tax-exempt hospital. Id. at 394. The hospital in question in Briscoe was subject to extensive state regulation and received substantial federal funding. Id. We held that there was "no such nexus between the state's relationship to the Hospital's operation and the dismissal of the plaintiff as to justify attribution of the challenged action of the Hospital to the state." Id. at 396.

The court went on to note the only distinction between the Lubin and Briscoe cases lay in the fact that the county owned the hospital in Lubin, which was not sufficient to establish state action, thus the state was not controlling the activity from which Lubin's complaint arose.

The Lubin court held that unless the state or subdivision is directly responsible or indirectly connected with the action of which the plaintiff complains, the action will not be attributed to the state. We note that Crittenden Memorial Hospital received aid under the Hill-Burton Act, as well as from Medicare and Medicaid programs, and was regulated as a health care facility. Notwithstanding the hospital's participation in these programs, it was not considered to fall within the public function category.

A majority of federal circuits which have addressed the question have held that a private hospital's actions are not state action and thus not governed by the 14th Amendment, even though the cases may involve hospitals receiving Hill-Burton funding and Medicare or Medicaid payments, tax exempt status, and were licensed and regulated by the state. See Hodge v. Paoli Memorial Hosp., 576 F.2d 563 (3d Cir.1978); Madry v. Sorel, 558 F.2d 303 (5th Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); Schlein v. Milford Hospital, Inc., 561 F.d 427 (2d Cir.1977); Briscoe v. Bock, 540 F.2d 392 (8th Cir.1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Jackson v. Norton-Children's Hospitals, Inc., 487 F.2d 502 (6th Cir.1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir.1973); Doe v. Bellin Memorial Hospital, 479 F.2d 756, 757 (7th Cir.1973).

In that light, it is difficult to conceive of a situation where a private hospital will be governed by a reasonableness standard unless the challenged regulation or action is prompted by the state. Here, the appellant offered nothing by way of argument on appeal or in pleadings or affidavits below that the state or any subdivision was in any way responsible for the action she challenges. She does not even meet a threshold requirement of stating or claiming there was state involvement with SVI in any manner whatsoever. Under these circumstances we find no basis for state action and hence no judicial review on the grounds of any nexus between SVI and the state.

The alternative basis for finding judicial review appropriate is one grounded on policy and finding the hospital in a public function or dedicated to a public purpose. The leading case in this area is Greisman v. Newcomb Hosp, supra. Our research indicates that since that opinion in 1963, only a minority of courts have been persuaded to follow Greisman in its reasoning. To that effect, see Bello v. South Shore Hospital, supra; Dani...

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