Cypress v. Newport News General & Nonsectarian Hosp. Ass'n, 10672.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: HAYNSWORTH, , and SOBELOFF, BOREMAN, BRYAN, BELL, WINTER and CRAVEN, Circuit
• Citation: 375 F.2d 648
• Parties: Goerge C. CYPRESS, Darnell Jackson, an infant, who sues by Dorothy Wright, his mother and next friend, and Sandra Rose Clark, an infant, who sues by Julia Clark, her mother and next friend, Appellants, v. The NEWPORT NEWS GENERAL AND NONSECTARIAN HOSPITAL ASSOCIATION, Incorporated, a Virginia Corporation, Charles K. Hutchens, Registered Agent and Nelson L. St. Clair, Jr., Administrator, Riverside Hospital, Appellees.
• Docket Number: No. 10672.,10672.
• Decision Date: 09 March 1967

375 F.2d 648 (1967)

Goerge C. CYPRESS, Darnell Jackson, an infant, who sues by Dorothy Wright, his mother and next friend, and Sandra Rose Clark, an infant, who sues by Julia Clark, her mother and next friend, Appellants,
v.
The NEWPORT NEWS GENERAL AND NONSECTARIAN HOSPITAL ASSOCIATION, Incorporated, a Virginia Corporation, Charles K. Hutchens, Registered Agent and Nelson L. St. Clair, Jr., Administrator, Riverside Hospital, Appellees.

No. 10672.

United States Court of Appeals Fourth Circuit.

Argued December 5, 1966.

Decided March 9, 1967.

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Michael Meltsner, New York City (Jack Greenberg, James M. Nabrit, III, New York City, Philip S. Walker, Newport News, Va., and Conrad K. Harper, New York City, on brief), for appellants

Arthur B. Davies, III, Lynchburg, Va. (Phillips M. Dowding, Newport News, Va., and Hickson, Davies & Lyle, Lynchburg, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, BELL, WINTER and CRAVEN, Circuit Judges.

SOBELOFF, Circuit Judge:

Plaintiffs, a Negro pediatrician and two of his patients, brought this class action for an injunction against the racially discriminatory policies and practices of the Riverside Hospital in Newport News, Virginia.¹ Specifically, they allege that Negro physicians are denied admission to the medical staff because of their race, and that Negro patients are assigned to hospital rooms on a segregated basis.

Dr. George C. Cypress, the physician-plaintiff, is a "board-certified" pediatrician² who twice applied for staff privileges at Riverside Hospital and was rejected on both occasions. The other two plaintiffs, Darnell Jackson and Sandra Rose Clark, are suffering from sickle cell anemia, a chronic disease requiring frequent periods of hospitalization. Both patients, presently under the care of Dr. Cypress, have expressed their desire to be treated at Riverside Hospital by him in the event further hospitalization becomes necessary.

The District Court held that neither the physician-plaintiff nor the patient-plaintiffs were entitled to relief, but offered to refrain from entering a final decree until Dr. Cypress and a Negro surgeon, similarly denied staff privileges, had complied with his suggestion that they reapply to the hospital within sixty days. The plaintiffs asserted, however, that the procedure outlined by the District Court would not adequately protect their rights from abuse and requested that a final decree be entered. The District Court thereupon dismissed the action on the stated grounds that the plaintiffs had failed to prove that Negro doctors were denied staff privileges "for reasons of race alone," and that plaintiffs had no standing to complain with respect to discriminatory room assignments.

I.

The record discloses that Riverside Hospital is a modern, 323-bed, state-regulated hospital, which has received approximately $2,250,000 in federal funds for construction under the Hill-Burton Act.³ The hospital also receives funds from the City of Newport News and from

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the state. Nearly 70% of the white physicians practicing in the community are on the hospital's medical staff, while none of the eighteen Negro physicians in the community has been granted staff membership. No patient may be treated except by a member of the staff

Testimony showed that Dr. Cypress first applied for staff privileges in April, 1961, and was rejected. When he reapplied a year later his application was again denied. Dr. Cypress is the only pediatrician in the community who has been denied staff privileges at Riverside Hospital; all six of the white pediatricians in the community are on the staff. Dr. C. Waldo Scott, a Negro "board-certified" surgeon, applied for membership on the Riverside Hospital staff in March, 1963; he too was denied staff privileges. Seventeen of the eighteen white surgeons in Newport News are members of the staff, although only eight of them are board-certified.

No grounds were given for rejecting the applications of the two Negro doctors. Dr. Cypress wrote the hospital requesting a conference to discuss the reasons for the denial, but the hospital failed even to accord him the courtesy of a reply, and he instituted the present action in October, 1963. In its answer, the hospital contended that the denial of staff privileges "was for just and good cause, and was not on the basis of race," yet at no point in the pre-trial proceedings or at trial did Mr. St. Clair, the hospital administrator and the defendants' only witness, assign a reason for the rejection of either Negro doctor's application.

The hospital's by-laws prescribe the procedures for appointing a doctor to the medical staff. The application is first presented to the Credentials Committee, which reviews the application, and if it is approved, it is submitted to the specialty staff to which the applicant is applying. The application is then routed to the General Staff together with the recommendations of the specialty staff. The General Staff then votes on the application, and its recommendations are transmitted to the Board of Managers, which has never failed to endorse the medical staff's recommendation.⁴ A three-fourths majority of the 117-man staff, voting by secret ballot, is necessary for approval of an application.

Dr. Cypress' application was transmitted by the pediatrics staff without recommendation. The hospital administrator conceded that this was the first time, to his knowledge, that a specialty staff had acted in this fashion. Dr. Scott's application was transmitted by the surgical staff with the recommendation that it be rejected.

Several prominent experts in their respective fields testified at the trial to the outstanding professional qualifications and skill of the two Negro physicians.⁵ The District Court found both doctors "highly qualified," observing that "the educational and professional qualifications and general competency in the specialized fields enjoyed by Drs. Cypress and Scott appear to be excellent."⁶ This finding is not contested by the defendant.

II.

In the court below, and in this court, the appellees contended that the proceeding brought by Dr. Cypress and the two patients is not a proper class action. However, we agree with the District Court that Dr. Cypress could appropriately bring such an action. Although Drs. Cypress and Scott are the only Negro physicians in the community who have applied to Riverside Hospital, two other Negro physicians expressly testified that they were interested in obtaining staff

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privileges there, and that Dr. Cypress was representing them in bringing this suit. That so few Negro physicians have applied is no indication of a lack of interest, but indicates, we think, a sense of the futility of such an effort in the face of the notorious discriminatory policy of the hospital,⁷ and may even reflect a fear of possible reprisals should they seek to attain their rights.⁸

The ineluctable conclusion, therefore, is that all Negro physicians practicing medicine in the Newport News area, and not only the two individuals who already have applied for staff privileges, should be considered members of the interested class. We further are of the opinion that eighteen is a sufficiently large number to constitute a class in the existing circumstances.⁹ No specified number is needed to maintain a class action under Fed.R.Civ.P. 23; application of the rule is to be considered in light of the particular circumstances of the case and generally, unless abuse is shown, the trial court's decision on this issue is final. 3 Moore, Federal Practice ¶ 23.05, at 3422 (2d ed. 1964). See In re Engelhard & Sons Co., 231 U.S. 646, 34 S.Ct. 258, 58 L.Ed. 416 (1914); Matthies v. Seymour Mfg. Co., 270 F.2d 365 (2d Cir. 1959).

The hospital also argues that appellants have misjoined distinct classes. We find no merit in this contention. The record plainly establishes that numerous patients of Drs. Cypress and Scott desired to be admitted to what all parties as well as the District Court agree is the best hospital in the area in view of its modern facilities. These patients, however, are unreasonably forced to a hard choice. They must elect either to forego treatment at that hospital or relinquish their personal physicians, since patients can be admitted to Riverside only on referral by members of the staff. It is obvious, therefore, that the right of Negro doctors to be admitted to staff privileges at Riverside is of great concern to the infant patients and to others.¹⁰ The patient-plaintiffs in Simkins v. Moses

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H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963) desired admission to the defendant hospital, which had the best facilities available in that locality, under the care of their personal physicians, who were Negroes. In that case, we permitted the Negro patients to join with Negro physicians and dentists to obtain injunctive relief for themselves and others similarly situated. See also Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964)

III.

Turning now to the merits of the dispute, we think that the District Court correctly articulated the rule to be applied:

Where no Negro physicians are on the hospital staff and application in proper form is made for staff membership by a Negro physician who meets the "paper" qualifications and proves his competency in his chosen specialty field (if any), a prima facie inference of discrimination exists wherever the action on said application is by secret ballot and without hearing from the applicant * * *.

251 F.Supp. at 673. The court noted that the inference disappears when a reasonable explanation is given showing that denial of staff membership is not because of the race, creed, or color of the applicant. However, the District Court failed to apply the rule properly and fell into plain error when it found that the...