Greco v. Orange Memorial Hospital Corporation, B-73-CA-159.

• Decision Date: 29 March 1974
• Docket Number: No. B-73-CA-159.,B-73-CA-159.
• Parties: John C. GRECO v. ORANGE MEMORIAL HOSPITAL CORPORATION et al. D. B. Campbell et al., Additional Defendants.
• Court: U.S. District Court — Eastern District of Texas

374 F. Supp. 227

John C. GRECO v. ORANGE MEMORIAL HOSPITAL CORPORATION et al. D. B. Campbell et al., Additional Defendants.

No. B-73-CA-159.

United States District Court, E. D. Texas, Beaumont Division.

March 29, 1974.

James R. (Ron) Weddington, Weddington & Weddington, Austin, Tex., for plaintiff.

John D. Rienstra, Rienstra, Rienstra & Dowell, Beaumont, Tex., L. W. Anderson, Dallas, Tex., Thomas B. Weatherly, Houston, Tex., Richard N. Evans, Beaumont, Tex., Don Burgess (For County Commissioners) Orange, Tex., Bill Sexton, Orange, Tex., Cleve Bachman, Orgain, Bell & Tucker, Lipscomb Norvell, Jr., Benckenstein & Norvell, Beaumont, Tex., Frank Hustmyre, Orange, Tex., for defendants.

MEMORANDUM OPINION

STEGER, District Judge.

The plaintiff, Dr. John C. Greco, a licensed physician, brought this action against Orange Memorial Hospital Corporation (hereinafter called "the hospital" or "the corporation"), the members of the board of directors of the hospital, certain doctors on the staff of the hospital, the administrator of the hospital, and the County Commissioners of Orange County. The members of the board, the doctors and the administrator were sued in their individual as well as their representative capacities. The plaintiff has been a member of the medical staff of the hospital since 1960.

Generally, Dr. Greco seeks a declaratory judgment by the Court that the policy of the hospital prohibiting the performance of elective abortions is unconstitutional, and he additionally seeks injunctional relief and monetary damages in the amount of $225,000.00 actual and $100,000.00 punitive. Jurisdiction is invoked principally under 42 U.S.C., Section 1983, and additionally under the "First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution; Title 28, U.S.C., Sections 1331 and 1343, Sections 2201 and 2202."

Motions to dismiss were filed, one by the County Commissioners and a second on behalf of remaining defendants. The County Commissioners contended in their motion that the plaintiff's complaint failed to show that they were acting under color of State law and further that they were not a "person" under 28 U.S.C. 1343 and 42 U.S.C. 1983. The other defendants interposed several defenses to the complaint. They contended that the Court lacked jurisdiction because Dr. Greco did not have the requisite standing to sue, and because the defendants were not acting under "color of state law" under 42 U.S.C. 1983. They further claimed that there is no constitutional right to an abortion on demand, that the state and county have remained completely neutral on hospital policy and that the plaintiff agreed to abide by the rules and bylaws of the hospital when he joined the medical staff.

Thereafter, on August 9, 1973, the plaintiff filed his motion for partial summary judgment requesting that the defendants be enjoined from enforcing their rule against the performance of elective abortions. Because of the complexity of the issues involved, the Court held an oral hearing on August 20, 1973, concerning the various motions. At the conclusion of the hearing the Court denied the plaintiff's motion for partial summary judgment and deferred ruling on the defendants' motions to dismiss until the time of trial.

Because an issue arose concerning the plaintiff's suit against the County Commissioners, he amended his complaint to clarify the fact that the County itself was not a party defendant.¹ Subsequently the County Commissioners filed a cross claim against the Orange Memorial Hospital Corporation contending that under the terms of the lease the corporation agreed "to relieve and hold harmless Lessor (County) from any and all liability whatsoever by virtue of the operation of the said hospital." Prior to trial the Court entered an order severing the damage issue and holding it in abeyance pending the outcome of the main case. Additionally the defendant doctors who voted adversely to the plaintiff on the abortion issue were dismissed from the case.² The case was tried to the Court in this posture on December 17, 1973. At the conclusion of the evidence the Court found that it lacked subject matter jurisdiction because the requisite state action was not present, so it dismissed the plaintiff's complaint. The following will constitute the Court's findings of fact and conclusions of law.

BACKGROUND TO PRESENT LITIGATION

The hospital in question was constructed through the combined efforts of state, federal and private persons, with the goal in mind of providing quality health care for the people of Orange County, Texas. The sixteen acres of land on which the hospital sits were donated in 1954, 1964 and 1968 to the County by private donors. The original hospital construction was paid for through the issuance of interest bearing county bonds and through the use of federal Hill-Burton funds.³ The initial operating expenses were raised through public donations from persons in the local area.

In January of 1957, the Orange Memorial Hospital Corporation was chartered as a non-profit corporation and the following month the County entered into a lease agreement on the hospital with the corporation. The agreement provided that the hospital building and land would be leased to the corporation for renewable periods of five years for the sum of $1.00 per year. The corporation agreed to operate the hospital at its own expense, maintain the facilities without cost to the County, pay all taxes and insurance and assume any liability arising from litigation involving the hospital. Additionally, the corporation agreed to accept persons certified by the County as indigents on a reimbursable basis. Over the years the County has continued to provide monetary support through the issuance of time warrants for construction of new additions to the hospital.⁴ Because the hospital enjoys the status of a non-profit corporation, it is exempt from federal, state and local taxes.

The board of directors was set up as the policy making body of the corporation. There are no County officials sitting on the board of directors, nor is the board required to consult the County under the lease on any policy matters except major alterations or additions to the physical plant. The corporation operates as a separate and independent entity apart from the County.

The Court will now turn to an examination of the events which precipitated this litigation. On January 22, 1973, the Supreme Court handed down its decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and the companion case, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Shortly thereafter, Dr. Greco began performing abortions at the hospital. On February 13, 1973, the hospital staff, Dr. Greco included, met and discussed the Supreme Court rulings and their relationship to future hospital policy. The surgery committee was directed to formulate general procedural guidelines for abortions and thereafter a meeting was held on February 20, in which this was accomplished. However, at the March staff meeting, a vote of the staff was taken and it was decided to recommend prohibition of abortions except for therapeutic reasons. Subsequently, the board of directors of the corporation voted unanimously for the medical staffs' resolution, and thus it became the official policy of the hospital. After the adoption of this policy, Dr. Greco sent six of his patients desirous of an abortion to the hospital for admission. All six were denied admission because of the policy in question.

Dr. Greco has continued to perform abortions at his clinic in Orange since the decision of the hospital's board of directors. At the time of trial, he and his partner had performed in excess of ninety abortions at the clinic. The plaintiff testified at his deposition that this litigation has given him a certain amount of notoriety through national publicity and has increased the number of his patients seeking abortions.⁵ However, the Court is of the opinion that some of the plaintiff's patients cannot undergo abortions at his clinic. These are the high risk patients—those with severe psychological problems or immaturity, those that are extremely obese, or have some serious disease. These patients are best handled in a hospital.

The Court takes note of the fact that the plaintiff as a member of the medical staff of the hospital, agreed to abide by all of the rules and regulations of the Orange Memorial Hospital Corporation. One such rule is of course the policy of the hospital permitting abortions only for therapeutic reasons.

STANDING

The defendants contend that Dr. Greco lacks standing to litigate the issues in this case because he has not shown, "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

It is elementary that federal courts will not issue advisory opinions or answer hypothetical questions. This is required by the "case" or "controversy" limitation in Article III of the Constitution. The words "case" or "controversy" have a special meaning in the operation of the federal judicial system:

"In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968).

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