Falcone v. Middlesex County Medical Soc.

• Decision Date: 13 June 1960
• Docket Number: No. L--867--58,L--867--58
• Citation: 162 A.2d 324,62 N.J.Super. 184
• Parties: Italo J. FALCONE, Plaintiff, v. MIDDLESEX COUNTY MEDICAL SOCIETY, an unincorporated association, Defendant. PW.
• Court: New Jersey Superior Court

Page 184

62 N.J.Super. 184

162 A.2d 324

Italo J. FALCONE, Plaintiff, v. MIDDLESEX COUNTY MEDICAL SOCIETY, an unincorporated association, Defendant.

No. L--867--58 PW.

Superior Court of New Jersey Law Division.

June 13, 1960.

Wilentz, Goldman, Spitzer & Sills, Perth Amboy (Elias A. Kanter, Newark, appearing), for plaintiff.

Backes & Backes, Trenton (Robert M. Backes, Trenton, appearing), for defendant.

VOGEL, J.S.C.

This is an action in lieu of Mandamus by the plaintiff, Dr. Italo J. Falcone, to compel the defendant, Middlesex County Medical Society, to admit the plaintiff to full membership in the defendant association. The complaint also prays an adjudication of the plaintiff's rights, and such other relief as may be just.

The defendant society contends that the court may not compel the defendant society to accept plaintiff as a member for the reason that the defendant is a voluntary association and, as such, may freely exercise independent judgment in the selection of its membership.

In the alternative, the defendant society contends that even though a court may compel admission of a qualified person to membership, the plaintiff herein is not qualified because he does not have an M.D. degree based upon four years of study in a medical school approved by the American Medical Association (hereinafter referred to as the A.M.A.).

For the most part the record in this case was established by reading into it voluminous depositions, which, together with the oral testimony and the numerous exhibits admitted into evidence, consumed six trial days, all of which took place in the presence of the court sitting without a jury.

A factual projection indicates that the plaintiff, Dr. Italo J. Falcone, a citizen of the United States, was born in Newark, New Jersey, on March 6, 1923, ever since which time he has been a resident of this State; and more particularly, since January 1, 1952 he has resided at 247 Livingston Avenue, New Brunswick, in this county. The facts further indicate that the plaintiff pursued undergraduate work at Rutgers University and Villanova College from September 1941 until September 1943, in an accelerated program equivalent to three years of undergraduate work. From September 1943 until September 1946 plaintiff was enrolled in an accelerated program at the Philadelphia College of Osteopathy in Philadelphia, Pennsylvania; and in 1946 the plaintiff received the degree of Doctor of Osteopathy (D.O.) from the Philadelphia College of Osteopathy. The Philadelphia College of Osteopathy was not at that time, nor is it today, a medical college approved by the A.M.A.

After receiving his D.O. degree, the plaintiff served a one-year internship and a three-year residency at the Detroit Osteopathic Hospital, which internship and residency likewise were not recognized by the A.M.A.

In 1950 the plaintiff presented his credentials from the Philadelphia College of Osteopathy and the Detroit Osteopathic Hospital to the New Jersey State Board of Medical Examiners, on the basis of which he was permitted to take the State Board medical examination, which examination, administered by the State Board of Medical Examiners, he was successful in passing. On November 8, 1950 this plaintiff received a license to practice medicine and surgery in the State of New Jersey. The State Board of Medical Examiners recognizes the degree of D.O. granted by the Philadelphia College of Osteopathy, as well as other osteopathic schools, as a prerequisite for admission to the physicians' examination. The license granted to this plaintiff is the same as that granted to doctors holding the degree of Doctor of Medicine (M.D.), and entitles plaintiff to the very same rights and privileges. See N.J.S.A. 45:9--1 et seq.

Thereafter, and more particularly in 1951, the plaintiff attended the Medical School of the University of Milan, Italy, for a period of approximately seven months. The University of Milan gave the plaintiff academic credit for three years of medical school based on his courses of study at the Philadelphia College of Osteopathy, and awarded him the degree of Doctor of Medicine (M.D.) on or about November 12, 1951. The University of Milan, College of Medicine, is recognized as an approved medical school by the A.M.A.

After receiving his degree from the University of Milan, the plaintiff served a 16-month internship at St. Peter's Hospital in New Brunswick, New Jersey. The internship program at St. Peter's Hospital is approved by the A.M.A Plaintiff also served a three- or four-month residency in surgery at the Jersey City Medical Center. The aforesaid residency was not one accredited by the American College of Surgeons or the A.M.A.

Since the latter part of 1951 or early 1952 plaintiff has maintained an office with his father, a licensed physician, for the practice of medicine and general surgery, at 247 Livingston Avenue, in New Brunswick, New Jersey. He is registered, according to law, with the County Clerk of Middlesex County. See R.S. 26:11--60, N.J.S.A.

In the latter part of 1953 the plaintiff was admitted to the defendant Middlesex County Medical Society as an associate member. The by-laws of the defendant society provide that a physician may not be an associate member for more than two consecutive years. At the time of his admission into associate membership by the defendant society plaintiff's application, admitted into evidence, did not indicate plaintiff's osteopathic education, nor his internship and residency at an osteopathic hospital. The application informed the society that plaintiff had an M.D. degree from the University of Milan, and had completed an internship at St. Peter's Hospital in New Brunswick, New Jersey.

During the period of his associate membership in defendant society the plaintiff was a member of the medical staffs of the Middlesex General Hospital and St. Peter's Hospital, both in New Brunswick, and was permitted to admit his patients and to treat them therein. Both of the latter institutions require that a staff physician be a member of the Middlesex County Medical Society.

While the plaintiff was an associate member the defendant society learned that plaintiff's M.D. degree was based upon one academic year of study at the University of Milan and credit for three years of study at the Philadelphia College of Osteopathy, the latter not being a medical school approved by the defendant society.

By reason of the aforesaid facts the judicial medical ethics committee of the defendant society refused to recommend Dr. Falcone for active membership, and the general membership of the defendant society, at a regular meeting, also declined to admit the plaintiff to active membership. By letter dated November 29, 1956 the secretary of the defendant society informed the plaintiff that he was not eligible to membership in the defendant society, assigning as a reason therefor that the plaintiff had been 'licensed to practice as a Doctor of Osteopathy and not as a Doctor of Medicine.' The letter continued, 'Inasmuch as your two years of Associate Membership in the County Society has expired, it was voted at the November 21, 1956, meeting to remove your name from its membership list as of that date.'

After the defendant society deleted the plaintiff's name from its membership list, the Middlesex General Hospital and St. Peter's Hospital terminated the plaintiff's staff membership, and precluded him from admitting and treating his patients in these respective institutions.

The plaintiff appealed from the decision of the defendant county society to the judicial council of the State Medical Society, and received a hearing from that body on January 27, 1957. The State Society's judicial council refused to interfere with the defendant county society's action. Thereupon the plaintiff appealed to the judicial council of the A.M.A., which body opined that it did not have jurisdiction to hear the plaintiff's appeal.

The testimony by various physicians, some of whom, hostile to this plaintiff, nevertheless had the opportunity to observe the professional work of Dr. Falcone, indicates that the plaintiff is an ethical and capable physician. There is no evidence in the record that the plaintiff actually practiced osteopathy, but, on the contrary the testimony reveals that the plaintiff practiced the same system of medicine as that practiced by the members of the defendant county society.

The record likewise indicates that the defendant county society was, at the time of its rejection of Dr. Falcone's application for active membership, an unincorporated association, but that it has since become incorporated under the laws of the State of New Jersey. The defendant association consists of doctors of medicine licensed to practice medicine in New Jersey, who are accepted under the procedures provided for in the by-laws of the association.

The constitution of the defendant society sets forth the purposes of the organization as follows (art. II, sec. 1):

'(a) To advance medical science;

'(b) To elevate professional standards, safeguard the material interests of and promote friendly relations between members of the medical profession;

'(c) To educate the public in prevention of disease and in the preservation of health;

'(d) In general, to render this profession most capable of serving humanity.'

The relevant provisions of the by-laws of the defendant society regarding membership are as follows '(ch. 1., sec. 1.)

'A. Associate Members: Upon application, a physician, in accordance with Sect. 7 of this Chapter, (regulating the form of application), having graduated with the degree of Doctor of Medicine from a recognized medical school, and being licensed to practice medicine and surgery in New Jersey, and registered in his County according to law, shall become eligible for election to Associate Membership if his qualifications of professional training and medical ethics meet the requirements of the ...