Ende v. Cohen

• Decision Date: 23 July 1996
• Citation: 686 A.2d 1239,296 N.J.Super. 350
• Parties: Norman ENDE, M.D., Plaintiff-Respondent, v. Stanley COHEN, M.D., individually and in his official capacity as Chair, Department of Pathology, University of Medicine and Dentistry of New Jersey; Seena Aisner, M.D., individually and in her official capacity as Chief of Service and Director of Anatomic Pathology, Department of Pathology, University of Medicine and Dentistry of New Jersey; Frank B. Fromowitz, M.D., individually and in his official capacity as Professor and Director of Surgical Pathology, Department of Pathology, University of Medicine and Dentistry of New Jersey; The University of Medicine and Dentistry of New Jersey; The University of Medicine and Dentistry of New Jersey--University Hospital; The Medical Staff of University Hospital, University of Medicine and Dentistry of New Jersey; The Trustees of the University of Medicine and Dentistry of New Jersey, who voted on
• Court: New Jersey Superior Court — Appellate Division

Page 350

296 N.J.Super. 350

686 A.2d 1239

Norman ENDE, M.D., Plaintiff-Respondent, v. Stanley COHEN, M.D., individually and in his official

capacity as Chair, Department of Pathology, University of

Medicine and Dentistry of New Jersey; Seena Aisner, M.D.,

individually and in her official capacity as Chief of

Service and Director of Anatomic Pathology, Department of

Pathology, University of Medicine and Dentistry of New

Jersey; Frank B. Fromowitz, M.D., individually and in his

official capacity as Professor and Director of Surgical

Pathology, Department of Pathology, University of Medicine

and Dentistry of New Jersey; The University of Medicine and

Dentistry of New Jersey; The University of Medicine and

Dentistry of New Jersey--University Hospital; The Medical

Staff of University Hospital, University of Medicine and

Dentistry of New Jersey; The Trustees of the University of

Medicine and Dentistry of New Jersey, who voted on July 23,

1996 to confirm the non-reappointment recommendation made by

the medical executive committee and whose particular

identities are at this time unknown to the plaintiff;

University Physician Associates of New Jersey, Inc.,

Defendants-Appellants,

and

"John & Jane Does 1-20", whose real identities are at this

time unknown to the plaintiff; "ABC Co.s 1-20",

fictitious entities, Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 18, 1996.

Decided Jan. 14, 1997.

Katherine L. Suga, Senior Deputy Attorney General, for defendant-appellant University of Medicine and Dentistry of New Jersey (Peter Verniero, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Suga, on the brief).

Robert J. Conroy, Bridgewater, for plaintiff-respondent (Kern, Augustine, Conroy & Schoppmann, attorneys; Mr. Conroy, of counsel, and on the brief; Michael O. Dermody, on the brief).

Before Judges BAIME, PAUL G. LEVY and BRAITHWAITE.

The opinion of the court was delivered by

BAIME, J.A.D.

The Chancery Division disqualified University Hospital's (Hospital) Medical Executive Committee (MEC) from serving as the hearing tribunal respecting plaintiff's application for renewal of staff privileges. The court also barred the Board of Trustees (Board) of the University of Medicine and Dentistry of New Jersey (University) from reviewing the MEC's decision in the event of an appeal. The court found that both the MEC and the Board prejudged plaintiff's application by virtue of their limited review of material presented by the pathology department's chairperson in support of his recommendation against renewal of privileges and their preliminary decisions accepting that recommendation. Based upon that finding, the court designated a private corporation, the Union County Medical Society, to decide whether plaintiff is entitled to continue serving on the staff of University Hospital.

Leave having been granted, defendants appeal. We reverse. We hold that the mere fact the MEC and the Board investigated the matter in question and made preliminary decisions not to renew plaintiff's staff privileges did not render those bodies incompetent to adjudicate the issue in the context of an adversarial plenary hearing.

I.

Plaintiff is a tenured professor of the University and has been a member of the teaching staff of its pathology department since 1970. Prior to July 1, 1996, he also held staff privileges at the Hospital. Defendant Stanley Cohen was appointed chair of the pathology department in 1994. Defendants Seena Aisner and Frank Fromowitz joined the department in 1995 as directors of anatomic pathology and surgical pathology. Following their arrival, both Drs. Aisner and Fromowitz expressed concern regarding plaintiff's ability to perform his surgical pathology responsibilities. They claimed, for example, that plaintiff grossly misdiagnosed an ovarian tumor, failed to recognize prostate cancer in a needle biopsy, and did not provide the most rudimentary data respecting a carcinoma.

Based upon these concerns, plaintiff was relieved of his surgical pathology duties and was appointed interim director of autopsy services. This is essentially a teaching position, and participating faculty members are rarely involved in the actual dissections performed by residents as part of their training. Plaintiff nevertheless refused to accept the assignment, claiming that he suffered from muscle spasms in his hands that prevented him from performing dissections. Accepting plaintiff's claimed incapacity, Dr. Cohen arranged for other faculty members to perform dissections in the unusual event a resident needed assistance.

As these events were unfolding, plaintiff applied for renewal of his staff privileges which were to expire on June 30, 1996. Among other things, this process required the department chairperson to certify that the applicant was "physically and mentally capable of practicing medicine and performing [his] assigned duties." Plaintiff was thus asked to undergo a physical examination by an independent physician. However, plaintiff refused to be examined without the presence of his attorney. His examination was canceled.

Tension continued to simmer. The University Physician Associates, the faculty practice plan that manages all billings for the University's clinical faculty, informed plaintiff that his laboratory billing collection activities were to be consolidated within its control although he had been granted an exemption in 1992. While the exemption had expired and plaintiff had made no effort to renew it, he viewed the decision as a form of harassment.

On June 11, 1996, Dr. Cohen notified the Hospital's credentials committee that he did not recommend renewal of plaintiff's staff privileges. In support of his decision, Dr. Cohen submitted Dr. Fromowitz's analysis of several diagnostic errors made by plaintiff. Other documentary submissions cited plaintiff's refusal to accept teaching assignments, insubordinate and disruptive conduct during the recruitment of potential faculty, and noncompliance with the billing and contribution requirements of the University Physician Associates.

In accordance with the Hospital's by-laws, these materials were presented to the MEC, which met in executive session. Fourteen members of the MEC were present, including Dr. Cohen. The MEC voted, twelve to zero with two abstentions, not to renew plaintiff's staff privileges. Plaintiff was notified of the MEC's adverse determination and was advised of his right to a hearing. On July 16, 1996, the MEC's recommendation was reported to the Hospital's Joint Conference/Planning Committee and was then forwarded to the Board of Trustees, the statutory governing body of the University. See N.J.S.A. 18A:64G-4. On July 23, 1996, the Board upheld the recommendation of the MEC. By this time, plaintiff's staff privileges, which were valid for a two-year term, had expired. However, the Hospital's by-laws, which we will describe in greater detail later in our opinion, provided for a full adversarial hearing by a committee of the MEC and, in the event of an adverse ruling, an appeal to the Board of Trustees. Plaintiff requested a hearing and was granted full discovery of the materials upon which the MEC and the Board had relied in making their initial decisions. However, before a hearing could be conducted, plaintiff commenced this action in the Chancery Division.

On August 9, 1996, plaintiff filed an order to show cause supported by a multi-count complaint, alleging breach of contract, age and handicap discrimination, and various due process violations. In the complaint, plaintiff sought injunctive relief and monetary damages. On August 15, 1996, the Chancery Division conducted a hearing on plaintiff's application for temporary restraints. While denying emergent renewal of plaintiff's staff privileges, the court disqualified the MEC and the Board from taking any further action in the case. Under the Chancery Division's order, the Union County Medical Society is to determine whether plaintiff's staff privileges are to be renewed. Defendants appealed following the denial of their motion for reconsideration. We accelerated the appeal and now reverse.

II.

We stress that the Chancery Division's decision was based solely upon plaintiff's challenge to the validity of the Hospital's by-laws. More specifically, the court found that the by-laws impinged upon due process concerns because the MEC and the Board make initial decisions with respect to an applicant's credentials and fitness and then become the final arbiters of the very issues they investigated. It was this combination of investigative charging, and adjudicative functions in the same administrative tribunals that the court found to be constitutionally offensive. We thus describe the by-laws in detail.

The University by-laws govern all procedures regarding physician staff appointment, reappointment, termination, and hearings. Initial appointments are for one year, and reappointments are for two-year periods. Staff members must apply for reappointment every two years. The chief of service reviews the staff member's application and reports to the credentials committee his or her recommendation that the appointment either be renewed or terminated. If the decision is adverse, the chief of staff also submits for review the reasons behind that decision. The credentials committee then reviews the application and recommendation and makes its own decision, and in turn submits its recommendation and report to the MEC. The MEC follows the same course of action, submitting its recommendation and report to the Board. The applicant's right to a plenary hearing is triggered by an adverse ruling by the Board. The hearing committee consists of six at-large members of the MEC, none of whom are a dean, chairperson, chief of service or "are in direct economic competition with the physician involved." Furthermore, "[a]ny individual who has participated in...