Bricker v. Sceva Speare Memorial Hospital

• Decision Date: 29 July 1971
• Docket Number: No. 6156-,6156-
• Parties: Glenn W. BRICKER, M.D. v. SCEVA SPEARE MEMORIAL HOSPITAL. a.
• Court: New Hampshire Supreme Court

Page 589

281 A.2d 589

111 N.H. 276

Glenn W. BRICKER, M.D. v. SCEVA SPEARE MEMORIAL HOSPITAL.

No. 6156-a.

Supreme Court of New Hampshire.

July 29, 1971.

Snierson, Chandler & Copithorne, Laconia (John P. Chandlir, Laconia, orally), for the plaintiff, and for the town of Ashland as amicus curiae.

Wescott, Millham & Dyer, Laconia (Peter V. Millham, Laconia, orally), for the defendant.

PER CURIAM.

This is a bill in equity brought by a physician to enjoin a hospital from enforcing its decision not to reappoint him to the hospital's medical staff. Originally the petition was brought pro se by the plaintiff and a temporary injunction on the pleadings was denied by King, J. This order was sustained by this court on October 26, 1970. Bricker v. Sceva Speare Memorial Hosp., 110 N.H. 412, 270 A.2d 358. On December 1, 1970, King, J., after an evidentiary hearing, issued a temporary injunction ordering the defendant to permit plaintiff the customary access of a medical staff member to the facilities of the hospital. Present counsel for the plaintiff entered the case originally for the town of Ashland, as amicus curiae and appeared for the plaintiff midway through the temporary injunction hearing.

On May 17, 1971, the Trial Court (Johnson, J.), after hearing, dismissed the petition of the plaintiff but stayed the discharge of the temporary injunction pending an appeal to this court. The plaintiff's exceptions were reserved and transferred by the trial court. The record includes the transcript of the hearing on the temporary injunction which was admitted in evidence at the trial on the merits.

Dr. Bricker came to Ashland from Pennsylvania in early 1963, and is the only physician practicing there. The Sceva Speare Memorial Hospital is located in Plymouth about six miles from Ashland. The next nearest hospitals to Ashland are in Franklin and Laconia, both about twenty-five miles away. The Sceva Speare Hospital serves an area population of about twelve thousand. At the time this action was brought there were ten physicians on the active medical staff, including Dr. Bricker. All of the active medical staff, with the exception of Dr. Bricker and a pathologist from Laconia, were residents of Plymouth.

The defendant hospital is organized as a charitable corporation with a president and the usual officers including a board of directors of not less than eighteen nor more than twenty-four. In addition to certain special classifications such as consulting staff not germane to this case the medical bylaws provide for two classes of physicians entitled to hospital privileges. These are courtesy medical staff and active medical staff. Courtesy medical staff members are physicians eligible for active staff membership by qualification but either first year members of the staff or otherwise ineligible for appointment to the active medical staff. Courtesy members are eligible for appointment to the active staff after one year. The bylaws provide that staff appointments shall be made by the board of directors for terms of the year on recommendation of the active medical staff prior to June 30th of each year. The credentials committee is made up of the active medical staff and charged with the duty of recommending the privileges to be extended to individual staff members and reviewing all staff appointments annually. Surgical privileges vary with individual physicians but no physician may treat a patient in the defendant hospital who is not a staff member.

Dr. Bricker was appointed to the courtesy staff on February 4, 1963 and to the active staff in June of 1966. He was reappointed in 1967, 1968 and 1969. The annual meeting of the medical staff in 1970 was not held until August 21, 1970. Dr. Bricker received a notice of this meeting but was hospitalized in the Laconia Hospital due to an accident and unable to attend the meeting. The remainder of the active staff present at the August 21st meeting voted to recommend reappointment of all the active staff except Dr. Bricker. This recommendation was adopted by the board of directors at their meeting on August 24, 1970, together with a direction that Dr. Bricker be notified of the action and his right of appeal under the bylaws.

The medical bylaws provide that where reappointment is not recommended the physician concerned shall be given 'an opportunity of appearing before the Credentials Committee and Joint Conference Committee in joint session.' Dr. Bricker requested a hearing and appeared before the credentials committee and the joint conference committee on October 14, 1970.

The joint conference committee consists of the president and vice-president of both the medical staff and the board of directors together with the administrator as an ex officio member. The meeting of October 14th appears to have been attended by all persons entitled to, including Dr. Bricker. During the meeting, which lasted some three and one-half hours, Dr. Bricker questioned each member of the active medical staff individually and learned that they were unanimous in opposing his reappointment. Some members of the staff gave their reasons for opposing him and others refused. The president of the hospital notified Dr. Bricker by letter dated October 20, 1970 that the board of directors had again voted unanimously not to reappoint him to the medical staff and the present action followed.

The initial question is the extent that the exclusion of a physician from staff privileges in a hospital is subject to review by the courts. Generally courts have drawn a distinction in such cases between public and private hospitals. See Annot., 37 A.L.R.3d 645 (1971); The Physician's Right to Hospital Staff Membership: The Public-Private Dichotomy, Wash. U.L.Q. 485 (1966). In the present case the acceptance of federal and town funds in addition to private contributions and income from patient care had not changed the private character of the defendant hospital. Woodard v. Porter Hosp., Inc., 125 Vt. 419, 217 A.2d 37 (1966); Khoury v. Community Memorial Hosp., Inc., 203 Va. 236, 123 S.E.2d 533 (1962); Shulman v. Washington Hosp. Center, 222 F.Supp. 59 (D.D.C.1963).

In the case of private hospitals some courts have applied the same limitations generally applicable to actions against private societies (see Bricker v. New Hampshire Medical Society, 110 N.H. 469, 470, 272 A.2d 614, 616 (1970)) and held that the exclusion of a physician from staff privileges rests within the discretion of the hospital authorities and is not subject to review by the courts. Levin v. Sinai Hospital, 186 Md. 174, 46 A.2d 298 (1946); Annot., 37 A.L.R.3d 645, 659, s. 3 (1971). More recently courts have recognized that the...