Henderson v. City of Knoxville

• Decision Date: 13 October 1928
• Citation: 9 S.W.2d 697,157 Tenn. 477
• Parties: HENDERSON v. CITY OF KNOXVILLE et al.
• Court: Tennessee Supreme Court

9 S.W.2d 697

157 Tenn. 477

HENDERSON v. CITY OF KNOXVILLE et al.

Supreme Court of Tennessee.

October 13, 1928

Appeal from Chancery Court, Knox County; R. M. Jones, Chancellor.

Suit by Doctor J. Victor Henderson against the City of Knoxville and another. Decree for defendants, and complainant appeals. Transferred from Court of Appeals. Reversed and rendered.

Smith & Carlock, of Knoxville, for appellant.

Frank Montgomery, W. H. Peters, Jr., and J. Alvin Johnson, all of Knoxville, for appellees.

McKINNEY J.

The bill in this cause was filed by Dr. Henderson against the city of Knoxville and Frank Bane, director of public welfare of said city, for the purpose of restraining them from interfering with him in the practice of his profession in the Knoxville General Hospital.

Dr Henderson is a regularly licensed physician and surgeon, and has enjoyed a large practice in Knoxville for some years.

The Knoxville General Hospital is owned and operated by the city and all licensed and reputable physicians and surgeons of the city of Knoxville and Knox county are permitted to treat and operate upon patients in said hospital.

Under the present charter of the city of Knoxville the hospital is under the management and control of the director of public welfare.

The physicians and surgeons practicing in said hospital are classified in two groups, viz., the executive group and the clinical group; and together they are called the medical staff of the hospital. The members of the executive group are appointed by the director of public welfare to serve one year, and treat the charity patients in said hospital. All other physicians who treat patients in said hospital are classed in the clinical group.

On April 21, 1926, written charges, signed by seventeen members of the staff, were preferred against Dr. Henderson as follows:

"We the undersigned members of the staff of the Knoxville General Hospital, have been reliably informed that a member of this staff has been guilty, and is guilty, of grossly unethical and unprofessional conduct. It has been currently reported, and generally believed, that Dr. J. Victor Henderson has been, and is still, soliciting practice from physicians throughout this section of the country; and, in various and sundry instances, has offered as an inducement to such men to refer him their surgical cases, to divide his fees with them, to take care of them, etc."

Dr. Henderson was charged, as will be noted, with soliciting practice from physicians and offering to divide his fees with them. He was not charged with directly soliciting patients, neither was it charged that he had, in fact, divided fees with any physician.

Dr. Henderson was tried before the staff and found guilty by a vote of twenty-nine to five. Thereupon Bane reviewed the action of the staff, approved same, and notified Dr. Henderson that he would not be further permitted to practice in the hospital, except that he could continue waiting on the patients which he already had there. A little later Dr. Henderson attempted to take another patient to the hospital for treatment, but he was forbidden to enter the hospital.

The charges preferred were abundantly sustained, but Dr. Henderson, without contradiction, testified that he never solicited patients directly, and never divided fees with the physician who brought a patient to him without the consent of the patient.

The chancellor dismissed the bill upon the theory that the director of public welfare was acting within his authority in declining to permit Dr. Henderson to further practice in the hospital.

It is not claimed that the director of public welfare had any such express authority, but that one of the implied powers of his office was to say who should and who should not practice in the hospital.

The record is a voluminous one, and counsel have favored us with nearly two hundred pages of typewritten briefs, so that within a reasonable space we will be unable to detail all of the matters developed in the cause, or to discuss the numerous authorities cited.

It would seem that ...