Ishak v. Fallston General Hospital and Nursing Center
| Citation | 50 Md.App. 473,438 A.2d 1369 |
| Decision Date | 08 January 1982 |
| Docket Number | No. 456,456 |
| Parties | Maher W. ISHAK v. FALLSTON GENERAL HOSPITAL AND NURSING CENTER et al. |
| Court | Court of Special Appeals of Maryland |
Joseph A. Schwartz, III, Baltimore, with whom were Francis S. Brocato and Brocato & Schwartz, Baltimore, on the brief, for appellant.
John J. Buckley, Jr., Washington, D. C., with whom were Brendan V. Sullivan, Jr., Williams & Connolly, Washington, D. C., James M. Kramon, Kramon & Graham, P. A., Alva P. Weaver, and Lord, Whip, Coughlan & Green, Baltimore, on the brief, for appellees.
Argued before THOMPSON, LOWE and MASON, JJ.
Through an opinion lacking excellence only in that it was wrong, 1 the judge of the Circuit Court for Harford County sustained, without leave to amend, demurrers to a declaration filed by the appellant, Dr. Maher W. Ishak, against Fallston General Hospital and Nursing Center which, among others, are appellees here. The opinion synopsized that which the declaration had detailed in a thirty-eight paragraph recitation:
"Although somewhat bereft of specific facts, the declaration in this case attempts to paint an unpleasant picture of medical politics. The Plaintiff, Dr. Maher Ishak, a physician and surgeon was a member of the 'courtesy physician staff' of Fallston General Hospital beginning in July of 1977 but at the end of 1978 the hospital declined to renew his staff privileges after they had expired as of December 31, 1978. The pretext for this non-renewal was the Hospital's contention that Ishak had not paid his courtesy staff dues on time, although the first notice that Ishak received that any courtesy staff dues at all were being assessed was on Monday, December 11, 1978. On Wednesday, December 13, 1978 the medical executive committee, an advisory body to the Hospital's board of directors, convened without any notice to Ishak and recommended to the executive board of the Hospital that Ishak be denied reappointment to the courtesy staff because he had failed to pay his dues. Completely unaware of the action taken by the medical executive committee, Ishak sought to obtain clarification of the dues situation on December 14, 1978 without success but on the following Monday, December 18, he was informed that he had indeed been assessed for dues. But he was not informed at that time either that the medical executive committee had previously recommended that he be denied reappointment or that the Hospital's board of directors was to meet the following day, December 19, to consider the medical executive committee's recommendation. The board of directors accepted the recommendation of the medical executive committee at the December 19 meeting, with the result that Dr. Ishak was not reappointed to the medical staff for the year 1979.
Still ignorant as to what had transpired Dr. Ishak sent in his check for dues on Thursday, December 21, but on Wednesday, December 27, he received a letter from the Hospital, dated December 22, 1978, informing him of the board of directors actions and, on the same day, he received back his dues check. Others who had paid their dues late were reinstated but Dr. Ishak's attempts, via the appellate review machinery of the Hospital, to achieve the same results were given short shrift.
Underlying this action by the Hospital, says Dr. Ishak, was the 'fierce economic rivalry' between Fallston General Hospital and Harford Memorial Hospital. Dr. Ishak was on the staff of both hospitals and had the temerity to express concern to the authorities at Fallston General Hospital regarding certain rumors to the effect that Fallston may have encouraged certain ambulance services to bring emergency patients to Fallston rather than to the nearest hospital. He also questioned the political activities of the principal owner of Fallston (a proprietary hospital). Because he had thus 'made waves' and because of his association with Harford Memorial Hospital, the Hospital retaliated by denying him reinstatement under the contrived pretext of not paying his dues.
This, says the Plaintiff, amounts to a malicious breach of the Hospital's contractual duty to the Plaintiff wherein the Hospital failed to seasonably notify him of the requirement of courtesy staff dues, to accept the dues when timely paid, and to accord him his procedural rights. Thus, he contends, he is entitled to compensatory damages for the economic loss he has suffered and for punitive damages for the malicious way in which it was all done. In addition, the Court is asked to grant an injunction ordering his reinstatement to the courtesy staff."
The judge then proceeded to set forth the appellees' five asserted grounds for demurrer.
"Assuming, as I must at the demurrer stage, that the factual allegations of the declaration are true and even assuming that some of the conclusory ones are likewise both true and proper, the question therefore is whether or not a cause of action has been stated. (See Schwartz v. Merchants Mort. Co., 272 Md. 305, 307-308, (322 A.2d 544) (1974)). All the Defendants demur. 2 The grounds for the demurrer are:
1. The declaration showed nothing on its face to show that Fallston General did not have the right like all other private hospitals, to exclude any physicians from its facility and that such exclusion was not within the sound discretion of the Hospital's management.
2. That the Plaintiff has no vested right, contractual or otherwise, either to membership on the staff or to reappointment to the staff for the year 1979.
3. That the Defendants had no obligation to follow their own by-laws in declining to reappoint the Plaintiff.
4. That there were no violations of the by-laws anyway.
5. That the medical staff by-laws specifically contain a waiver clause denying Plaintiff legal recourse, and that the Hospital's board of directors had the final say in the matter of reappointment to the courtesy staff. The demurrer also says that the Hospital's actions are beyond judicial review or interference which, of course, is like saying the declaration is demurrable because it is demurrable.
In his discussion of these matters, the judge did not explicitly state which, if any, were at the root of his ruling. Implicitly, he indicated his agreement with all but the fifth ground, although he rested his opinion primarily upon the autonomy granted by common law to private hospitals in deciding whether to renew physicians' staff privileges.
"As to the first ground of the demurrer, it is unclear to me whether or not the failure to show that Fallston General did not have the right to exclude physicians is not really asking the Court to make the Plaintiff anticipate matters of defense. It is, however, clear to me that the allegations of the declaration, taken at their face value, show that the exclusion was not within the sound discretion of the Hospital's management because the narrated course of conduct, if true, shows no considered exercise of discretion at all. But the main line of defense is that the Plaintiff had no vested right, contractual or otherwise, to membership on the Hospital's courtesy physicians staff or to reappointment thereto. This proposition is in accord with the Maryland authorities as well as those elsewhere, Levin v. Sinai Hospital of Baltimore City, 186 Md. 174 (46 A.2d 298) (1946), Glass v. Doctors Hospital, 213 Md. 44 (131 A.2d 254).
The Defendants also say that whether or not the Hospital violated its own by-laws is immaterial and, anyway, the by-laws were not violated. In short, in a private hospital there is no right to due process because the procedural rules are neither contractual obligations of the hospital (there being no contract to begin with) nor required by any other principles of law. Manczur v. Southside Hospital, 183 N.Y.S.2d 960 (16 Misc.2d 989, 183 N.Y.S.2d 960) (1959), Weary v. Baylor University Hospital ( . Although one might then ask why a hospital should bother at all with by-laws, the courts are under no duty or compulsion to lend legal forces to the rules and regulations of private concerns unless by contract or statute such rules and regulations are given the force of law.
Furthermore, as the Defendants point out, the declaration referred to the Hospital's by-laws but in fact only cites the by-laws of the medical staff. The Hospital by-laws, say the Defendants, are the controlling provisions because the medical staff is merely an advisory body. In short, the declaration cites only those by-laws which favor the Plaintiff's position and do not cite the governing by-laws (or even the unfavorable portions of the medical staff by-laws). The Plaintiff cites formal procedures of the medical staff by-laws which apply only to the 'initiating procedure to suspend or revoke staff membership or curtail existing clinical privileges' and such provisions are plainly inapplicable to the matter of renewing privileges, again citing Glass v. Doctors Hospital, 213 Md. at 61 (131 A.2d 354).
As if this were not enough, Defendants then go on to say that any procedural deficiencies were minimal and that the safeguards in question were substantially complied with."
But the autonomy granted to private hospitals exists only in the absence of statutory or contractual obligations of the hospital, such as where the hospital expressly contracts...
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Bender v. Suburban Hospital, 2000
...afterthought. We find that such treatment hardly qualifies as active pursuit. Dr. Bender also relies on Ishak v. Fallston Gen. Hosp. & Nursing Ctr., 50 Md. App. 473, 438 A.2d 1369 (1982), a case we find inapposite. In Ishak, we held that a physician whose hospital privileges were canceled i......
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Petrocco v. Dover General Hosp. and Medical Center
...(D.C.App.1989) (medical doctor was denied staff privileges based on alleged professional deficiencies); Ishak v. Fallston Gen. Hosp. & Nursing Ctr., 50 Md.App. 473, 438 A.2d 1369 (1982) (hospital refused to renew privileges of staff While plaintiff was not entitled to any procedural protect......