Bricker v. Sceva Speare Memorial Hospital

• Decision Date: 03 March 1972
• Docket Number: Civ. A. No. 72-10.
• Citation: 339 F. Supp. 234
• Parties: Glenn W. BRICKER, M.D. v. SCEVA SPEARE MEMORIAL HOSPITAL et al.
• Court: U.S. District Court — District of New Hampshire

339 F. Supp. 234

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

Civ. A. No. 72-10.

United States District Court, D. New Hampshire.

March 3, 1972.

Glenn W. Bricker, pro se.

Peter V. Millham, Wescott, Millham & Dyer, Laconia, N. H., Frederic K. Upton, Upton, Sanders & Upton, Martin L. Gross, Sulloway, Hollis, Godfrey & Soden, Concord, N. H., E. Donald Dufresne, Devine, Millimet, McDonough, Stahl, & Branch, Philip G. Peters, Wadleigh, Starr, Peters, Dunn & Kohls, Paul E. Nourie, Wiggin, Nourie, Sundeen, Pingree & Bigg, E. Paul Kelly, Sheehan, Phinney, Bass & Green, Manchester, N. H., for defendants.

MEMORANDUM OPINION

BOWNES, District Judge.

The motions to dismiss require a careful scrutiny of the pro se complaint, keeping in mind that it is to be construed liberally. The plaintiff alleges that he is a duly licensed physician practicing medicine and surgery in Ashland, New Hampshire; that, in addition, he is an authority in legal medicine and practices legal medicine throughout the Northeastern United States; that he testifies as a medical expert in judicial and administrative proceedings, and has participated in the preparation and trial of medical malpractice cases.

He alleges that the defendants, solely because of his participation in medical malpractice cases, have conspired to deprive him of his capacity to earn a living and to practice medicine in violation of the First, Fifth, and Fourteenth Amendments to the Constitution and in violation of the Civil Rights Act of 1871. (No specific section of the Civil Rights Act is specified.)

The plaintiff claims that, in furtherance of this conspiracy, the defendants caused him to be excluded from the medical staff of the Sceva Speare Memorial Hospital, prohibited him from using the facilities at the hospital for the care and treatment of his patients and have caused a proceeding to be filed with the Board of Registration in Medicine for the State of New Hampshire in an effort to have his medical license either suspended or revoked. (No decision has yet been rendered by the Board of Registration in Medicine for the State of New Hampshire.) The complaint also alleges that the defendants have caused material alterations in records, suborned perjury in proceedings before State Courts and quasi judicial boards, instituted a double standard at the hospital relative to regulations imposed, obtained the requirement that all members of the hospital staff carry professional liability insurance, and then threatened to cancel and have cancelled his policy because he testified in a medical malpractice case. The same paragraph alleges that the defendants caused false testimony to be introduced at a trial in which the plaintiff was an expert medical witness in order to contradict, discredit, and impeach his testimony previously given at the trial.

For purposes of this case, the most significant allegation is paragraph 5 in which the plaintiff alleges that he was not notified of the charges against him prior to his exclusion from the medical staff of the defendant hospital. Paragraph 6 alleges that the hospital received monies from the Federal Government under the Medicare program and pursuant to the Hill-Burton Act. (This allegation has not been denied.)

The amended complaint alleges that in furtherance of the conspiracy, the hospital, without notice or hearing, removed the plaintiff from the roster of physicians participating in the emergency call program after a temporary injunction of the Superior Court of the State of New Hampshire had been in effect for eight months, prohibited its staff from using the plaintiff as an assistant or consultant, and prohibited him from attending medical staff meetings. (See the terms of the preliminary injunction issued by me on February 14, 1972.)

Paragraphs 14, 15, and 16 of the amended complaint set forth acts of the defendants Dr. Crane and Attorneys Soden and Millham that have to do with the initiation of the proceedings before the New Hampshire Board of Registration in Medicine to have plaintiff's license to practice medicine revoked, and the conduct of those proceedings. Paragraph 17 of the complaint alleges that Attorney Murphy, as treasurer and attorney for the defendant hospital, gave erroneous information to one or more persons to the effect that the plaintiff was incompetent as a practitioner of medicine and surgery.

The complaint asserts jurisdiction under 28 U.S.C. § 1343.

Immediately upon receiving notice of his exclusion from the medical staff of the hospital, plaintiff brought a petition for injunction in the Superior Court for the State of New Hampshire and, after two hearings, one on the question of whether or not a preliminary injunction should be issued, and the other on the merits, the New Hampshire Supreme Court upheld the trial court's findings and rulings that the exclusion was justified. Bricker v. Sceva Speare Memorial Hospital, 111 N.H. ___, 281 A.2d 589 (1971). The plaintiff's petition for writ of certiorari to the United States Supreme Court was denied on December 14, 1971. 404 U.S. 995, 92 S.Ct. 535, 30 L.Ed.2d 547.

The complaint, as amended, names nineteen different defendants which, for purposes of this opinion, I have separated into five categories: (1) physician members or past members of the medical staff of the Sceva Speare Memorial Hospital, hereinafter referred to as the staff; (2) present or past members of the Executive Committee of the Board of Directors of the Sceva Speare Memorial Hospital, including Attorney Murphy as treasurer, hereinafter referred to as the committee; (3) the Sceva Speare Memorial Hospital, hereinafter referred to as the hospital; (4) the Hartford Insurance Group, a/k/a five different companies, the Travelers Insurance Company, and the Interstate Fire and Casualty Company, hereinafter referred to as the companies; and (5) Attorneys Millham and Soden, hereinafter referred to as the attorneys.

The staff, the hospital, and the committee have moved to dismiss on the grounds of res judicata, collateral estoppel, want of jurisdiction, and lack of color of state law.

The companies moved to dismiss on the grounds of want of proper jurisdiction and failure to state a claim upon which relief can be granted.

Attorneys Millham and Murphy moved to dismiss on the grounds of res judicata, collateral estoppel, the New Hampshire statute of limitations, want of jurisdiction, and failure to state a claim upon which relief can be granted. Attorney Soden moved to dismiss on the last two grounds only.

Liberally construed and stripped to its "federal" essentials, the complaint alleges a conspiracy to deprive the plaintiff of his right to practice medicine because he testifies as an expert witness in medical malpractice cases and that, as part of the conspiracy, the defendants excluded him from the medical staff of the hospital and, in so doing, violated his constitutional right to due process of law by refusing to notify him of the charges against him prior to the hearing on his exclusion. There is nothing in the complaint from which it can be reasonably inferred that the plaintiff has been denied his constitutional right to "equal protection" of the law. No racial or class discrimination is alleged or even intimated. The allegations as to the proceedings before the New Hampshire Board of Registration in Medicine are anticipatory and do not, at this stage in the proceedings, allege any constitutional violations.

The first question is whether or not the plaintiff has asserted grounds sufficient for federal jurisdiction. While the complaint does not so specify, I assume that plaintiff is relying on both 42 U.S.C. §§ 1983 and 1985.¹ Although I personally have serious reservations as to the advisability of using the Hill-Burton Act as a key to the Federal Courts in any civil rights case and particularly, one limited to due process, I recognize that the weight of authority holds that the acceptance of Hill-Burton funds is sufficient to cloak a private hospital and its medical staff with a mantle of state law.² I, therefore, rule that color of state law has been properly alleged and that there is jurisdiction under 28 U.S. C. § 1343(3).

The next question is whether a cause of action upon which relief can be granted has been stated as to the different defendants under 42 U.S.C. § 1983. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L.Ed. 939 (1946); Birnbaum v. Trussell, 347 F.2d 86 (2nd Cir. 1965). The alleged violation of due process clearly involves the staff, the hospital, and the committee, and as to those defendants, I rule that a cause of action has been stated under 42 U.S.C. § 1983. Since no facts have been alleged sufficient to color the actions of the attorneys and companies with state law, they are not members of the class exposed to liability under 42 U.S.C. § 1983. Hanna v. Home Insurance Co., 281 F.2d 298 (5th Cir. 1960); Joyce v. Ferrazzi, 323 F.2d 931 (1st Cir. 1963); Contra, Gillibeau v. City of Richmond, 417 F.2d 426 (9th Cir. 1969). Furthermore, the allegations as to the attorneys do not in any way relate to the exclusion of the plaintiff from the medical staff of the hospital. I rule that as to Attorneys Millham and Soden and the companies no cause of action under which relief can be granted has been stated under 42 U.S.C. § 1983.

I next consider whether a cause of action has been stated under 42 U.S.C. § 1985 as to any of the defendants. The recent case of Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), leaves little room for doubt as to the scope and effect of 42 U.S.C. § 1985. Its holding that 42 U.S.C. § 1985(3) covers private conspiracies without any requirement of color of state law puts to rest the questions raised by Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951). Griffin also defines the type of conspiracy giving rise to an action under section 1985(3):

The language requiring intent to

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