Illinois Psychological Ass'n v. Falk

• Decision Date: 12 May 1987
• Docket Number: No. 86-2069,86-2069
• Citation: 818 F.2d 1337
• Parties: ILLINOIS PSYCHOLOGICAL ASSOCIATION, Dr. Jean J. Rossi, and Dr. John R. Day, Plaintiffs-Appellants, v. Marshall FALK, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1337

818 F.2d 1337

ILLINOIS PSYCHOLOGICAL ASSOCIATION, Dr. Jean J. Rossi, and Dr. John R. Day, Plaintiffs-Appellants, v. Marshall FALK, et al., Defendants-Appellees.

No. 86-2069.

United States Court of Appeals Seventh Circuit.

Argued Feb. 24, 1987.

Decided May 12, 1987.

Michael R. Levinson, Alexander-Unikel-Zalewa-Tenenbaum, Chicago, Ill., for plaintiffs-appellants.

Bret A Rappaport, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before WOOD, POSNER and MANION, Circuit Judges.

POSNER, Circuit Judge.

This is an appeal from the denial of a preliminary injunction in a suit under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983. The plaintiffs--the Illinois Psychological Association and two of its members--had sought the injunction in order to prevent the Illinois Department of Public Health and the Illinois Hospital Licensing Board from putting into effect an interpretation of an administrative regulation. As interpreted, the regulation bars psychologists from membership on the medical staffs of hospitals (public and private) regulated by the state; and without such membership a psychologist cannot admit a patient to the hospital, cannot order treatment for him in the hospital, and cannot vote on hospital policies. The plaintiffs claim that the interpretation denies them equal protection of the laws; deprives them of property or liberty (or both) without due process of law (because the interpretation is unrelated to any rational state policy, and because it was adopted without proper procedures); and violates the state's administrative procedure act. The last is of course a pendent claim. The district judge, though agreeing that the plaintiffs had demonstrated irreparable harm--and more such harm than the defendants would suffer if the preliminary injunction were granted--denied the request for a preliminary injunction, as he thought the plaintiffs had little chance of prevailing on the merits of their case, 638 F.Supp. 876 (N.D. Ill. 1986).

The regulation, which dates back to 1976, defines a hospital's medical staff as an organized body composed of individuals granted the privilege by the governing authority of the hospital to practice in the hospital. Any of the following who are granted practice privileges by a hospital shall be placed on the hospital's Medical Staff: persons who are graduates of a college or school approved or recognized by the Illinois Department of Registration and Education, and who are currently licensed by the Department as a Doctor of Medicine, M.D.; Doctor of Osteopathy, D.O.; Doctor of Dental Surgery, D.D.S.; or Doctor of Podiatric Medicine, D.P.M.

77 Ill.Admin.Code Sec. 250.150(a). Although there is no mention of psychologists, some hospitals in Illinois read the regulation to mean that while anyone in one of the four categories who was given practice privileges by a hospital had to be placed on the hospital's medical staff, any other duly licensed health professional given practice privileges by a hospital could also be placed on the hospital's medical staff. The individual plaintiffs in this case, as well as an unknown number of other psychologists, are members of hospital medical staffs.

In 1985, after the national body that accredits hospitals changed its standards to authorize greater state control over the composition of hospital staffs, the Illinois Department of Public Health--allegedly without complying fully with the rulemaking procedures required by the state's administrative procedure act--announced that it interpreted the regulation to mean that only persons in the four categories can be members of hospital medical staffs. The plaintiffs call this a "new" interpretation. The defendants reply that they were merely repeating what had long been their understanding of the regulation. The interpretation was "new," however, at least in the sense of making it very difficult for hospitals to ignore the regulation any longer, as many had done by appointing psychologists to their staffs. Since a hospital that fails to obey the new interpretation (as we shall continue to refer to it) risks having its license revoked, and hospitals therefore are likely to obey the new interpretation to the serious detriment of the plaintiffs and the class they represent, we stayed the effective date of the new interpretation until this appeal could be decided. See Fed.R.App.P. 8(a).

The new interpretation does not interfere with a hospital's giving psychologists practice privileges. But if allowed to go into effect it may as a practical matter force psychologists having hospital practices to work with psychiatrists. The psychologist will not be able to admit a patient to the hospital on his own or to order treatment on his own; admission and treatment orders will have to be signed by physicians (we can ignore dental surgeons in this setting), who in the case of patients requiring psychological diagnosis or care will ordinarily be psychiatrists. Psychiatrists and psychologists, who differ primarily in that the former are physicians and can therefore administer drug therapy as well as psychiatric therapy while the latter can administer only psychiatric therapy (or psychological diagnosis), are competitors for patients having mental-health problems. The psychologists rightly fear that the new interpretation will give psychiatrists a new competitive advantage.

The defendants argue that the interpretation is necessary to protect patients, by making sure that a physician is involved in the decision to admit the patient to the hospital and in all treatment decisions and that physicians control the hospital's medical policies (which are set by the hospital's medical staff). Little evidence to back up this argument has yet been presented in this case. So far as appears, psychologists have been members of the medical staffs of Illinois hospitals for many years without incident. Nationwide, between 20 and 25 percent of clinical psychologists have hospital staff privileges of some kind. See Dorken, Webb & Zaro, Hospital Practice of Psychology Resurveyed: 1980, 13 Prof.Psych. 814 (1982). It is possible, as the plaintiffs argue, that even more psychologists would have such privileges were it not for the political "clout" of psychiatrists, who want to prevent psychologists from competing effectively with them. Psychiatry is among the least well paid medical specialties, see Owens, Doctors' Earnings: The Year of the Big Surprise, 62 Med.Econ. 195, 203 (1985), and psychiatrists may therefore be particularly eager to defend their "turf" and particularly energetic in organizing political support for their position. All this, however, is conjecture. Reputable psychiatrists have argued in reputable professional journals that psychiatrists' participation in the hospital treatment of patients with psychological disturbances is necessary to ensure proper care of these patients. See Guze, Nature of Psychiatric Illness: Why Psychiatry Is a Branch of Medicine, 19 Comprehensive Psychiatry 295 (1978); Berlin et al., The Patient Care Crisis in Community Mental Health Centers: A Need for More Psychiatric Involvement, 138 Am.J.Psychiatry 450 (1981). Maybe they are right.

The plaintiffs argue that even if their chance of winning this case is (and they do not concede it is) weak, they are entitled to a preliminary injunction because the balance of harms is so strongly in their favor. They are quite right to note that this circuit has adopted the "sliding scale" approach to deciding whether to grant or deny preliminary relief, see, e.g., Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986), so that even though a plaintiff has less than a 50 percent chance of prevailing on the merits, if he can show that the cost to him of not getting preliminary relief is greater than would be the cost to the defendant if such relief were ordered he may be entitled to the injunction. Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 387 (7th Cir.1984). If for example a plaintiff had only a one-third chance of winning, implying that on average one out of three plaintiffs in this type of case has a claim that would be found meritorious at trial, yet denial of preliminary relief would cause him catastrophic harm while granting preliminary relief would not harm the defendant in the least, it would be at once unjust to the meritorious plaintiff, and unnecessary for the protection of the meritorious defendants, to deny preliminary relief in these cases. It is this principle that the plaintiffs invoke in this case.

But we do not agree with their factual premise, which is that the harms from grant or denial of preliminary injunction are asymmetrical in this case. True, the state has not shown any tangible harm from further delay in effectuating its new interpretation. But it would be shortsighted to conclude that a federal injunction preventing the state from effectuating the interpretation would therefore be harmless to the state; nor did the district judge suggest this. He suggested the opposite, though he did so in the context of considering whether the public interest favored the grant or denial of the plaintiffs' request for a preliminary injunction. A federal judge should be reluctant to grant a preliminary injunction against state regulation, especially regulation of safety and health, unless persuaded that the plaintiff has a good chance, not merely a nonnegligible one, of winning when the case is fully tried. The public interest (more concretely, the interests of persons other than the parties to the lawsuit), a traditional consideration in deciding whether to grant or deny an injunction, see, e.g., Yakus v. United States, 321 U.S. 414, 440-41, 64 S.Ct. 660, 674-75, 88 L.Ed. 834 (1944); Roland Machinery Co. v. Dresser Industries, Inc., supra, 749 F.2d at 388, and considerations of comity toward the states as sovereign entities (greatly diminished sovereigns, to...