Egan v. St. Anthony's Medical Center, No. SC 88493.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Stephen N. Limbaugh, Jr.
• Citation: 244 S.W.3d 169
• Parties: Robert C. EGAN M.D., Appellant, v. ST. ANTHONY'S MEDICAL CENTER, Respondent.
• Docket Number: No. SC 88493.
• Decision Date: 05 February 2008

244 S.W.3d 169 Robert C. EGAN M.D., Appellant,
v.
ST. ANTHONY'S MEDICAL CENTER, Respondent. No. SC 88493. Supreme Court of Missouri, En Banc. February 5, 2008.

Alan G. Kimbrell, Ballwin, MO, for Appellant.

Neal F. Perryman, Jennifer E. Behm, St. Louis, MO, for Respondent.

David M. Harris, Andrew Walkup, St. Louis, Gerald. M. Sill, Anne C. Curchin, Jefferson City, MO, for Amicus Curiae Missouri Hospital Association.

STEPHEN N. LIMBAUGH, JR., Judge.

In this case, the plaintiff-appellant, a sergeon whose privileges to practice at the defendant hospital were suspended, asks this Court to rerekamine its holding in Cowan v. Gibson, 392 S.W.2d 307 (Mo.1965), that there may be no judicial review of the staffing decisions of private hospitals. Following that precedent, the circuit court dismissed plaintiffs petition for failure to state a claim. After opinion by the Court

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of Appeals, Eastern District, this Court granted transfer. Mo. Const. art. V, sec. 10. Reversed and remanded.¹

BACKGROUND AND PROCEDURAL HISTORY

Robert Egan, a board-certified general and vascular surgeon, has practiced surgery in the state of Missouri for forty-two years. At the time he filed this lawsuit, he had been a member of the medical staff at St. Anthony's Medical Center, a private, not-for-profit hospital in St. Louis County, for twenty years, performing an average of 200 surgical procedures there each year. He also held staff privileges at several other hospitals in the St. Louis area. In June 2005, Dr. Egan received a letter notifying him that he was summarily suspended from practice at St. Anthony's. The letter explained that "[s]pecifically, summary suspension is necessitated by the report of Michael V. Oliveri, Ph.D., ABPP, who found `mild, relatively nonspecific neurocognitive abnormality classified as suggestive of early abnormal decline.'" The letter further informed Dr. Egan that on June 13, 2005, he had "performed a right colectomy on an 81-year old female patient" against the advice of her gastroenterologist.

Article X, section 1E of the bylaws of the medical staff of St. Anthony's Medical Center provides that Islummary suspension of privileges is a drastic action that is taken without the opportunity for a prior hearing [and that the] Medical Center must be able to justify summary action on the basis that life or health is imminently threatened." At Dr. Egan's request, and in accordance with the bylaws, a hearing was held before members of St. Anthony's medical staff at which sworn testimony and evidence were presented, including the testimony of Dr. Egan's own cognitive experts and other physicians. The hospital subsequently abandoned its claims that Dr. Egan suffered from "neurocognitive abnormality," and no findings were made as to his mental status. However, the hearing committee determined that Dr. Egan: (1) performed an unindicated colectomy; (2) failed to provide sufficient documentation as to the patient in the colectomy and another of his patients, and (3) "in [another] case ... violated the law and/or principles of medical ethics." Based on these conclusions, the hearing committee recommended revocation of Dr. Egan's privileges to practice at St. Anthony's.

Dr. Egan then appealed the findings and recommendation to an appellate committee, which, as required under the bylaws, was comprised of three members of St. Anthony's board of directors and three physicians selected by Dr. Egan. The bylaws also required that the appellate committee's decision be based solely on the record from the evidentiary hearing. However, Dr. Egan alleges that the appellate committee heard new testimony regarding his professional competence from at least one of its members, Dr. Kirk Nelson, who testified that he, himself', was very critical of Dr. Egan, based on things he had heard at other hospitals and his own personal interactions with him. Specifically, Dr. Nelson testified that Dr. Egan's privileges had been suspended by other local hospitals and that Dr. Egan had received letters of reprimand from them. Dr. Nelson also stated that he had personally witnessed Dr. Egan give an excessive amount of epinephrine in an attempt to resuscitate an ICU patient. Further, he testified that, while working in the emergency department, Dr. Egan asked him whether he had performed a pelvic examination on a female patient who had

244 S.W.3d 171

not reported pain in that region, a question that Dr. Nelson felt was inappropriate. Dr. Nelson concluded by stating that it was his wish that Dr. Egan no longer practice at St. Anthony's. At that point, another physician on the committee objected to the testimony of Dr. Nelson for the reason that it was prejudicial and forbidden by the bylaws. However, the committee chairman, a member of the board of directors, overruled the objection, stating that plaintiff "has mental deficiencies," although, as noted, the hospital had abandoned that claim after the first hearing.

The appellate committee then adopted the findings of the hearing committee over the dissent of the objecting physician and recommended to St. Anthony's board of directors that Dr. Egan's privileges be revoked. The directors, in turn, adopted the recommendation of the committee, revoked Dr. Egan's privileges, and, as required by law, reported the revocation to the Missouri Board of Healing Arts and the National Practitioners Data Bank. Each of these proceedings—summary suspension, evidentiary hearing, appeal and final board action—was governed by the hospital's bylaws.

Subsequently, Dr. Egan filed the underlying seven-count petition seeking mandatory injunctive relief reinstating his privileges pending a new hearing with proper notice and appellate procedures. At oral argument, however, Dr. Egan stipulated that he now seeks only a new hearing in accord with hospital bylaws and not immediate reinstatement of his privileges.

Appellate review of the trial court's dismissal for failing to state a cause of action is "solely a test of the adequacy of the plaintiff's petition." Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001). Thus, it is assumed that all averments in the petition are true and all "reasonable inferences therefrom" are to be liberally granted. Id.

ANALYSIS

In Cowan v. Gibson, 392 S.W.2d 307, 309 (Mo.1965), this Court addressed as an issue of first impression whether a physician could sue a private hospital for revoking his staff privileges. The Cowan case has come to stand for the proposition that, under Missouri law, a private hospital's decisions regarding staff privileges are not subject to judicial oversight. Id. at 309. See also Richardson v. St. John's Mercy Hosp., 674 S.W.2d 200, 201 (Mo. App.1984) (holding that the court had no jurisdiction to review the staffing decisions of a private hospital); Zipper v. Health Midwest, 978 S.W.2d 398, 415-17 (Mo.App. 1998) (holding that a physician was not entitled to contractual damages when a hospital breached its bylaws). In support of the Cowan opinion, this Court cited what was, at the time, the nationwide majority rule from a then-current version of American Law Reports, which stated in relevant part that "the exclusion of a physician or surgeon from practicing [in a private hospital] is a matter which rests in the discretion of the managing authorities," Cowan, 392 S.W.2d at 308 (quoting 24 A.L.R.2d 850, 852) (1952). This, reasoned the Court, weighed heavily against any judicial review.²

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In the decades following Cowan, however, forty-six states and the District of Columbia have adopted a limited exception of one kind or another to the general rule of non-review of the staffing decisions of private...