Rush v. City of St. Petersburg, 67-224

• Decision Date: 13 December 1967
• Docket Number: No. 67-224,67-224
• Citation: 205 So.2d 11
• Parties: Joseph C. RUSH, Appellant, v. CITY OF ST. PETERSBURG, Florida, a municipal corporation, and Robert N. Price, Appellees.
• Court: Florida District Court of Appeals

Page 11

205 So.2d 11

Joseph C. RUSH, Appellant, v. CITY OF ST. PETERSBURG, Florida, a municipal corporation, and Robert N. Price, Appellees.

No. 67-224.

District Court of Appeal of Florida, Second District.

Dec. 13, 1967.

Rehearing Denied Jan. 10, 1968.

John C. Dew, of Harris, Barrett, Dew & Sieber, St. Petersburg, for appellant.

Carl R. Linn, Asst. City Atty., St. Petersburg, for appellee City of St. Petersburg.

Gardner W. Beckett, of Nelson, Beckett & Nelson, St. Petersburg, for appellee Robert N. Price.

PIERCE, Judge.

This is an appeal by Joseph C. Rush, a medical doctor, plaintiff below, from a dismissal with prejudice of his second amended complaint.

Plaintiff's second amended complaint was brought on behalf of himself individually and of all others similarly situated, which class allegedly consisted of all medical doctors licensed to practice medicine in the State of Florida, specializing in Radiology, who were on the staff of Mound Park Hospital in St. Petersburg, Florida. The complaint sought to have declared null and void a contract between the City of St. Petersburg, as owner and operator of Mound Park Hospital, and Robert N. Price, defendants named therein, relative to the providing of radiological service at Mound Park Hospital. The complaint further sought to enjoin the City from entering into any other similar type of contract.

Count I of the complaint alleged that under the terms of the contract between the defendants, the professional medical services of Robert N. Price were purveyed by the hospital. Plaintiff also alleged that Dr. Price was an agent or employee of the City, and as a result the hospital was engaged in the illegal 'corporate practice of medicine'.

Count II alleged that under the terms of the contract, Dr. Price handled all 'unassigned' radiological cases at Mound Park Hospital. The 'unassigned' cases are those in which no particular radiologist is specified by the patient or by the physician having the patient admitted to the hospital. Plaintiff further alleged that 'unassigned' cases constituted 99% Of the radiological business at Mound Park Hospital. Allegedly, as a result of the contract plaintiff and the others of his class suffered discrimination by being effectively denied the right to participate in the 'unassigned' radiology cases.

In dismissing, upon motions, the second amended complaint with prejudice, the Court ruled that both Count I and Count II failed to state a cause of action, and also that plaintiff was not a proper party to bring suit to enjoin the unlicensed practice of medicine.

This case presents questions unique in this State's judiciary. We find no other instance where a licensed physician, and a member of a hospital staff, has sought to enjoin a fellow physician and a municipality on the ground that performance of a contract results in the illegal corporate practice of medicine by the municipally owned hospital.

First, we seek to determine whether the subject contract is void on its face for failure to conform to the requisites of a legal contract. No question arises as to the legal capacity of the parties defendant, one a corporate entity and the other an individual, to enter a binding contract; nor must the contract fall for lack of consideration or mutual benefit. The only doubtful element is whether by its terms the contract is in contravention of public policy. We find that on its face it is not. Whether Performance of the contract adversely affects the public welfare will be more fully explored.

In discussing legality versus illegality of the contracts, 7 Fla.Jur., Contracts § 58, says that 'the test is whether the agreement in full operation will be injurious to the public welfare.' And further that 'unless, however, a contract is illegal on its face, there is a presumption of its legality * * *' The area of public policy is a broad one and its borders are ill-defined, but here we need deal only with simple issues.

(1) Was entering into a contract with Dr. Price to provide round-the-clock radiology service at Mound Park Hospital an unreasonable exercise of power, express or implied, vested in the City of St. Petersburg to promote the public welfare?

F.S. Sec. 180.06, F.S.A. says:

'Any municipality * * * organized for the purposes contained in this chapter, is authorized * * * (7) to construct * * *, hospitals, * * * to Maintain, operate and repair the same, and to construct and operate in addition thereto all machinery and equipment; * * *' (Emphasis supplied.

It appears that authority to maintain and operate a public hospital would subsume a duty to comply with the standards set forth in Ch. 395, F.S.A. for Hospital licensing and Regulation. At the very outset of said Chapter is the following:

'395.01 Definitions

As used in this chapter: (1) 'Hospital' means any establishment that offers: (a) Services more intensive than those required for room, board, personal services and general nursing care; and (b) Facilities and beds for use beyond twenty-four hours by ten or more non-related individuals requiring diagnosis, treatment or care for illness, injury * * *, and Regularly makes available at least: clinical laboratory services, Diagnostic x-ray services, * * *' (Emphasis supplied).

In light of the above, therefore, a hospital, in order to be licensed in Florida, must at least provide diagnostic X-ray services on a regular basis. In the absence of statutory guidelines as to the manner in which such radiological service may be provided, we conclude that the City did not exceed its authority in contracting with Dr. Price to assure such service on a full-time basis.

(2) Did performance of the contract result in unauthorized practice of medicine by the hospital or the City?

There is no law precisely on point. ¹ However, both the plaintiff, Dr. Rush, and defendant, Dr. Price, cite two related opinions of the Attorney General (1955 Op.Atty.Gen., 055-71 and 1956 Op.Atty.Gen., 056-322). While neither of these possibly conflicting opinions is controlling upon this court, we feel the better reasoned view is found in 056-322, where, in discussing a similar arrangement for radiology services in a County hospital, it was stated: '* * * the department of radiology is an incident to the proper of the hospital * * *' and further: 'it also appears that the relationship of patient...