Caine v. Hardy

• Citation: 943 F.2d 1406
• Decision Date: 26 September 1991
• Docket Number: No. 89-4470,89-4470
• Parties: Curtis W. CAINE, Jr., M.D., Plaintiff-Appellant, v. M.D. HARDY, M.D., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1406

943 F.2d 1406

Curtis W. CAINE, Jr., M.D., Plaintiff-Appellant, v. M.D. HARDY, M.D., et al., Defendants-Appellees.

No. 89-4470.

United States Court of Appeals Fifth Circuit.

Sept. 26, 1991.

Paul M. Neville, Jackson, Miss., Kent Masterson Brown, Lexington, Ky., for plaintiff-appellant.

George O. Evans, Wise, Carter, Child, Caraway, Douglas E. Levanway, George H. Ritter, Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, BROWN, POLITZ, KING, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, and BARKSDALE, Circuit Judges. ¹

EDITH H. JONES, Circuit Judge:

An anesthesiologist's clinical privileges at a public hospital were suspended with conditions after an investigation and conferences concerning the death of one of his patients, but before a formal hearing was held. This court must now decide en banc whether the doctor's discipline followed the dictates of procedural due process. To a reasonable layman, there would be no dilemma: after a patient died while under the anesthesiologist's care, suspension pending a hearing would seem an obvious answer. Constitutional law does not, however, always deal in the obvious. We reach the same conclusion as the intuitive one, but after following paths well rutted by decisions of the Supreme Court.

I. BACKGROUND

Dr. Curtis W. Caine, Jr. filed suit in the United States District Court for the Southern District of Mississippi against nearly two dozen defendants, including the administrator and all the members of the Executive Committee and the Board of Trustees of Hinds County General Hospital, alleging the denial of procedural due process occasioned by the swift suspension of his clinical privileges. To his fifty-page complaint Dr. Caine attached 250 pages of exhibits described as "true and correct copies" of the relevant documents. The hospital staff bylaws and virtually every letter or report pertinent to Dr. Caine's suspension proceedings, whether prepared on his behalf or by hospital personnel, were appended in neat chronological order. They tell a tale that mirrors most of the facts, if not the legal characterizations, espoused in the complaint.

On April 7, 1988, defendant Dr. M.D. Hardy, the Chief of Anesthesiology of Hinds General, asked Dr. Caine to discuss a certain patient who had been under Dr. Caine's care two months earlier. Dr. Caine then met twice, for a total of three hours, with Drs. Hardy, Strong, and Courtney, all anesthesiologists and members of the Ad Hoc Investigating Committee previously appointed to review the treatment of the patient in question. When his lawyer advised him that the first meeting was inadequate, Dr. Caine requested and obtained the second meeting. Less than a week after the second meeting with Dr. Caine, the Ad Hoc Investigating Committee reported to the hospital's Executive Committee that Dr. Caine's handling of the case exhibited serious deficiencies. Although each member of the Ad Hoc Committee recommended a different sanction, the most clement of these called for immediate and continued suspension of Dr. Caine's clinical privileges pending his completion of a six-month course of additional anesthesiology training.

Three days later, on April 25, the Executive Committee--composed of two members of the Ad Hoc Committee and nine other non-anesthesiology staff doctors--discussed the Ad Hoc Committee's written reports. The minutes of the Executive Committee meeting list five alleged critical errors in Dr. Caine's management of the patient. Unanimously, the Committee suspended Dr. Caine's clinical privileges immediately, but offered him the opportunity to reapply for them when he completed a twelve-month anesthesiology residency and agreed to submit to a three-month probationary status at Hinds General.

The Executive Committee specified in its written notice that it took this action pursuant to Article VI, Section 2(a) of the medical staff bylaws. ² It advised Dr. Caine of his right, under Article VII of the bylaws, to request a formal hearing. On May 4, Dr. Caine so requested. He did not, however, accept the hospital's offer to convene the hearing within seven days, but instead requested and received two continuances. Eventually, after a hearing had been set for sometime in July, he categorically declined to participate in the hospital's post-suspension procedures. The bylaws would have afforded not only a formal hearing before an ad hoc hearing committee, but also an appeal to the Board of Trustees. Dr. Caine also chose not to take advantage of his right to judicial review of the hospital's decision in the Mississippi chancery court. See Miss.Code Ann. § 73-25-95 (incorporating id. § 73-25-27).

In form, the hospital followed every step of its medical staff bylaws both before and after Dr. Caine's suspension. ³ Specifically Dr. Caine was suspended by the Executive Committee for conduct that "requires that immediate action be taken to protect the life of any patient(s) or to reduce the substantial likelihood of immediate injury or damages to the health or safety of any patient." Article VI, Section 2(a).

Dr. Caine does not deny that the Executive Committee invoked and relied on Article VI, Section 2(a) in his case. His complaint, however, shines a different light on the formalities observed. Dr. Caine alleges that his troubles were unleashed by his then-recent opposition to Dr. Hardy's proposal to obtain for himself and his two partners an exclusive anesthesiology contract with the hospital, a contract that would have frozen out all other anesthesiologists. To punish Dr. Caine's stance--and his unsuccessful candidacy against Dr. Hardy for Chief of the Anesthesiology Department--Drs. Hardy, Courtney, and Strong allegedly failed to give Dr. Caine proper notice of the charges against him prior to his April 11 and 16 meetings and refused him sufficient access to the relevant patient chart. Finally, Dr. Caine alleges that all the decisionmakers in his case were biased by their self-interest or by the gossip campaign mounted by Dr. Caine's detractors. He contends that nothing less than a formal pre-suspension hearing, before doctors not associated with Hinds General, was constitutionally required. To supplement his procedural due process claim, Dr. Caine proposed to amend his complaint to assert that he was disciplined in violation of his first amendment right to speak out on the exclusive anesthesiology contract as a matter of "public concern."

The district court granted the defendants' motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). On the procedural due process issue, the court found that even if Dr. Caine's allegations against the defendants were true, they failed to allege that Mississippi law afforded an inadequate post-deprivation remedy for the suspension of his privileges at Hinds General. The court rejected Dr. Caine's proposed first amendment claim because, again assuming the truth of the doctor's allegations, the court disagreed that the doctor had engaged in constitutionally protected speech. On initial appeal, a panel of our court held that under the Supreme Court's most recent procedural due process decision, Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), Dr. Caine's allegations, if true, would support a judgment that his due process rights were violated. The divided panel also held that the district court must consider the first amendment claim on remand.

Having reconsidered this case en banc, our court now holds that Dr. Caine's complaint does not allege a procedural due process violation and that the district court did not err in refusing his proffered first amendment claim. We therefore affirm the district court's judgment.

II. MOOTNESS

Before addressing the merits, we must dispose of an unfortunate preliminary issue. After this case was reargued en banc, Dr. Caine died of a heart attack. Dr. Caine's counsel moved to revive the action in the name of Dr. Caine's personal representative. To the contrary, the defendants argue that Dr. Caine's death abates the lawsuit and moots this appeal. After researching the issue, we agree with the plaintiff and conclude that the case as a whole is not moot.

Obviously, Dr. Caine's quest for reinstatement of his medical privileges does not survive his death. Whether his prayer for money damages survives, on the other hand, is not such an easy question. The Supreme Court has held that the survival of actions brought pursuant to 42 U.S.C. § 1983 is to be determined by the law of the forum state. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). The relevant Mississippi statute provides: "When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator." Miss.Code Ann. § 91-7-237. Whether Dr. Caine's lawsuit survives depends on whether it is a "personal action."

The Mississippi courts have long defined a personal action as "an action brought for the recovery of personal property, for the enforcement of a contract or to recover damages for its breach, or for the recovery of damages for the commission of an injury to the person or property." Powell v. Buchanan, 245 Miss. 4, 8, 147 So.2d 110, 111 (1962). One way to apply this definition to § 1983 actions is to examine the facts of each separate § 1983 claim and characterize it according to the most analogous state-law cause of action. In his procedural due process claim, Dr. Caine alleged that the defendants performed their actions "wantonly, willfully and maliciously, and with the intent to remove Plaintiff from the Medical Staff of Hinds General Hospital and to undermine and destroy his practice of anesthesiology and medicine." These...