Duffield v. Charleston Area Medical Center, Inc., 73-2161

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation503 F.2d 512
PartiesGeorge D. DUFFIELD, Appellant, v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation, and J. Darrell Richmond, Administrator of Memorial Division of Charleston Area Medical Center, Inc., Appellees.
Docket NumberNo. 73-2161,73-2161
Decision Date26 September 1974

John L. Boettner, Jr., Charleston, W. Va., for appellant.

George G. Guthrie, Charleston, W. Va. (Howard R. Klostermeyer and Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., on brief) for appellees.

Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The appellant, a surgeon, challenges on constitutional grounds the withdrawal of his medical staff privileges by the Board of Trustees of the defendant Hospital. 1 The District Court dismissed the action. We affirm.

The controversy between the parties began when one of the predecessor units of the present merged Hospital gave notice of the ex parte withdrawal, subject to appeal, of appellant's hospital privileges and when, upon appeal from such notice being taken by the appellant, the appellant was not furnished a statement of the charges on which the withdrawal was based sufficiently in advance of the hearing to be meaningful, and was denied at the hearing itself the right to confront and cross-examine the witnesses supporting the withdrawal and to submit testimony on his own behalf. It was the contention of the appellant that he was thereby denied hospital privileges without being accorded necessary procedural due process. That contention was accepted in an earlier order of the District Court, resulting in a temporary injunction against the termination of the appellant's hospital privileges until such time as the appellant was given an administrative hearing according him procedural due process. This restraining order was in effect on June 29, 1972 at the time the Governing Board of the defendant consolidated Hospital, after reconsideration of the action earlier taken by the board of its predecessor unit, and acting on the recommendation of its own Department of Surgery, revoked the appellant's hospital privileges, subject to a right of appeal to a Joint Conference Committee as hereafter described.

When the appellant was notified by the administrator of the Hospital of the withdrawal of his privileges and of the charges on which the withdrawal was based along with his right of appeal, he asserted that his rights were, in the existing posture of the case, determinable only by the District Court and not in an administrative hearing before the Joint Conference Committee. The Hospital construed this as a waiver of the right to an administrative hearing under its by-laws and moved both to vacate the restraining order and to dismiss the action. After a hearing, the District Court vacated in part the restraining order but ordered the Hospital to grant the appellant a prompt administrative hearing and to "make available to plaintiff's counsel copies of all documents and evidence upon which charges are based with regard to the administrative hearing, and that both parties make available to counsel for the other party a list of all the names and addresses of witnesses who will be called to testify at said administrative hearing within ten days prior to the administrative hearing." 2

An administrative hearing was thereafter set. Under the by-laws of the Hospital, such hearing was conducted by the Joint Conference Committee. This Committee consists of ten members, five of whom are 'selected from the Executive Committee' of the medical staff and the remainder are the members of 'the Executive Committee' of the Board. 3 The hearing before this Committee began on Octover 2 and continued, with interruptions, until November 13, 1972. On December 6 the appellant filed his motion to disqualify certain members of the Joint Conference Committee. The motion was overruled and the Joint Committee thereafter recommended unanimously in favor of the withdrawal of appellant's hospital privileges, which recommendation was approved by the Governing Board of the Hospital on January 16, 1973. Following this approval by the Governing Board of the recommendation for withdrawal, the Hospital filed its motion to dismiss. Some weeks later the appellant moved to amend his complaint to allege the disqualification of the Joint Committee. These motions in due course came on for hearing in the District Court and resulted in a decree sustaining the Hospital's motion to dismiss and denying the appellant's motion to amend. This is the order for review on appeal.

Jurisdiction of this action is manifest. When a hospital has received, as the defendant Hospital has, Hill-Burton financial assistance, the federal and state involvement is such as to subject the hospital to the obligations imposed by the Fourteenth Amendment, Sams v. Ohio Valley General Hospital Association (4th Cir. 1969) 413 F.2d 826, 828, and will sustain federal jurisdiction of a claim of denial of procedural due process, as guaranteed by such Amendment, in the withdrawal or revocation of a doctor's hospital privileges. Section 1343(3), 28 U.S.C., and Section 1983, 42 U.S.C.; Christhilf v. Annapolis Emergency Hospital Ass'n, Inc. (4th Cir. 1974) 496 F.2d 174, 178. In the case of a withdrawal or denial of hospital privileges, procedural due process entitles a physician to a full, evidentiary administrative hearing, before such privileges may be permanently or finally terminated. Christhilf, supra. 4 The appellant bases his right of action on a claim of such denial of procedural due process.

It is the position of the appellant that the members of the Governing Board, who sat on the Joint Conference Committee, had, by their action of June 29, 1972, in accepting and adopting the recommendation of the Department of Surgery that the hospital privileges of the appellant be withdrawn, subject to the latter's right of appeal thereon to the Joint Conference Committee, made a prejudgment of appellant's case and were thereby disqualified to sit or vote as members of the Joint Conference Committee, as convened on October 2, under order of the District Court for the purpose of according the appellant an administrative hearing. It is this claim of disqualification which is the single complaint of the appellant to be resolved on this appeal.

The appellant is faced at the outset with the argument that his claim of disqualification is not timely. A claim of disqualifying bias or partiality on the part of a member of the judiciary or an administrative agency must be asserted promptly after knowledge of the alleged disqualfication. Wyant v. Brennan (4th Cir. 1936) 85 F.2d 920, 921; Chafin v. United States (4th Cir. 1925) 5 F.2d 592, 595, cert. denied 269 U.S. 552, 46 S.Ct. 18, 70 L.Ed. 407; Coltrane v. Templeton (4th Cir. 1901) 106 F. 370, 376-377; International Paper Co. v. Federal Power Com'n (2nd Cir. 1971) 438 F.2d 1349, 1357, cert. denied 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56; Lucas v. United States (9th Cir. 1963) 325 F.2d 867, 869; Adams v. United States (5th Cir. 1962) 302 F.2d 307, 309; Gilligan Will & Co. v. Securities and Exchange Com'n. (2d Cir. 1959) 267 F.2d 461, 468, cert. denied 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152; Kramer v. United States (9th Cir. 1948) 166 F.2d 515, 518; Laughlin v. United States (1945) 80 U.S.App.D.C. 101, 151 F.2d 281, 284, cert. denied 326 U.S. 777, 66 S.Ct. 265, 90 L.Ed. 470. 5 In Coltrane this Court quoting from the leading case of Moses v. Julian, 45 N.H. 52, said that, 'After a trial has commenced, no attempt to recuse a judge will be listened to unless it is shown affirmatively that the party was not aware of the objection, and was in no fault in not knowing it' (106 F. at 377). The same principle was reiterated in Chafin, where the Court emphasized that 'the just and reasonable rule would be that a challenge to a judge for bias and prejudice must be made at the first opportunity after discovery of the facts tending to prove disqualification * * *. To hold otherwise would be to allow a litigant to pervert and abuse the right extended to him at the cost to the other party of unnecessary expense and labor and to the public of the unnecessary disruption of the conduct of the courts.' (5 F.2d at 595)

The factual basis for the appellant's claim of disqualification in this case is not complex or involved; it involves one simple fact, i.e., the official participation of certain members of the Joint Conference Committee in the prior ex parte action of the Governing Board on June 29. It seems inconceivable that the appellant, a member of the medical staff of the Hospital and engaged in litigation with its trustees for a year and a hald, did not know the identity of such trustees. And ten days before the administrative hearing began, he was furnished with all the pertinent records of the Hospital relevant to his case. These records would show the individual members of the Governing Board who participated in the action on June 29. In any event, he was fully aware at the commencement of the administrative hearing that five of the members of the Joint Committee were trustees and he had ample opportunity at that time to make any inquiries he wished about their involvement in the action of June 29. He actually did ask and receive permission, before the hearing began, to examine all members of the Committee on voir dire. The purpose of that examination, as expressed by appellant's counsel, was to determine whether the members of the Committee either 'as individuals or as a group', could resolve 'the facts of this case on a fair and impartial basis; to try to determine whether you have any prejudice or whether you have formed any conclusions in regard to the outcome of the case.' There was no restraint placed on the appellant in his interrogation of the members of the Committee. During the interrogation, the appellant made no...

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