Scappatura v. Baptist Hospital of Phoenix

• Citation: 120 Ariz. 204,584 P.2d 1195
• Decision Date: 10 August 1978
• Docket Number: No. 1,CA-CIV,1
• Parties: Enrique C. C. SCAPPATURA, M. D., and Chest & Cardiovascular Surgery LTD., Appellants, v. BAPTIST HOSPITAL OF PHOENIX, an Arizona Non-Profit Corporation d/b/a Phoenix Baptist Hospital, PBH Corporation d/b/a Phoenix Baptist Hospital, an Arizona Non-Profit Corporation, J. Barry Johnson, Richard H. Daley, M. D., James B. Shields, M. D., and William J. Rappoport, M. D., Appellees. 3734.
• Court: Court of Appeals of Arizona

Page 1195

584 P.2d 1195

120 Ariz. 204

Enrique C. C. SCAPPATURA, M. D., and Chest & Cardiovascular Surgery LTD., Appellants, v. BAPTIST HOSPITAL OF PHOENIX, an Arizona Non-Profit Corporation d/b/a Phoenix Baptist Hospital, PBH Corporation d/b/a Phoenix Baptist Hospital, an Arizona Non-Profit Corporation, J. Barry Johnson, Richard H. Daley, M. D., James B. Shields, M. D., and William J. Rappoport, M. D., Appellees.

No. 1 CA-CIV 3734.

Court of Appeals of Arizona, Division 1, Department A.

Aug. 10, 1978.

Rehearing Denied Sept. 11, 1978.

Review Denied Oct. 5, 1978.

Ely & Bettini by Herbert L. Ely and Stephen L. Weiss, Phoenix, for appellants

Burch, Cracchiolo, Levie, Guyer & Weyl, P. A. by K. C. Weyl and Duane A. Olson, Phoenix, for appellees J. Barry Johnson and Baptist Hospital of Phoenix.

Lewis & Roca by Roger W. Kaufman, Paul G. Ulrich, Susan M. Freeman, Phoenix, for appellees Daley, Shields and Rappoport.

OPINION

NELSON, Judge.

Appellant Dr. Enrique Scappatura's hospital privileges were temporarily suspended, pending a full investigation, as the result of numerous complaints concerning the care of a patient of his who expired shortly after surgery. After a full hearing, appellant's privileges were reinstated with various restrictions and conditions. Appellant brought suit to recover damages for his alleged wrongful suspension from the appellees, Baptist Hospital, Barry Johnson, Doctors Daley, Shields and Rappoport. The trial court granted appellees' request for summary judgment and dismissed appellant's complaint. This appeal followed.

This Court, in reviewing the decision of the lower court granting appellees summary judgment, must resolve the following issues:

(1) Whether this Court has jurisdiction to review the internal operations of a private hospital;

(2) To what extent do the physician peer review statutes provide immunity, under A.R.S. § 36-445.02, to physicians who participate in the review and subsequent suspension of a fellow doctor; and

(3) Did the appellant make the requisite showing that the appellees acted with malice or bad faith in their suspension of him so as to preclude appellees the possibility of immunity under A.R.S. § 36-445.02.

FACTS

On Friday, February 28, 1975, appellant performed elective major vascular surgery upon a patient in Baptist Hospital in Phoenix. The patient, who was 68 years old, had some previous conditions, chronic heart and lung disease, which made his candidacy for this surgery questionable. Prior to surgery, an EKG and angiogram indicated some abnormalities, and several days before surgery, the patient developed an upper respiratory tract infection accompanied by a fever which continued up to the morning of surgery. The operation, itself technically satisfactory, was followed by serious post-operative complications. The deterioration of the patient's post-operative condition led to emergency treatment by Dr. Scappatura. The nature of Dr. Scappatura's post-operative treatment was questioned by hospital personnel, particularly the nurses who assisted him during treatment. They felt that the measures he used during the emergency were extreme, unusual, and perhaps unsafe. The patient died during this course of post-operative treatment on the night of surgery.

The nurses who assisted Dr. Scappatura in the intensive care unit promptly informed a nursing supervisor of the concern they had about appellant's handling of this case. No action was taken on Saturday or Sunday, but on Monday morning, March 3, the nursing supervisor reported the incident to the Director of Nursing, who directed her to discuss the matter with appellee, Dr. Rappoport, the medical director of the intensive care unit. They talked late Monday or early Tuesday. A written memorandum of this incident was delivered to the Director of Nursing and Dr. Rappoport on Tuesday afternoon, March 4. Because the problem involved surgery as well as the intensive care unit, Dr. Rappoport suggested that appellee Dr. Shields, Chief of Surgery, also be given a copy. Dr. Shields received a copy of the report on Wednesday, March 5. Dr. Shields, the following morning, Thursday, March 6, conferred with appellee Dr. Daley, the Chief of Staff, and then asked the medical staff secretary to contact appellee, Mr. Johnson, the Hospital Administrator, Doctors Daley and Rappoport, and arrange for a meeting that afternoon or evening to discuss the incident. Dr. Shields called appellant and informed him about this meeting. That evening Doctors Shields, Daley, Rappoport, and Mr. Johnson discussed appellant's action in this case, interviewed the nurses, and analyzed the deceased patient's charts and records. Each of the four was informally polled regarding the proper course of action, and the recommendation to suspend appellant pending a thorough investigation was unanimous. They explicitly stated the reasons for this recommendation: (1) appellant's pre-operative evaluation of the patient, a significant surgical risk, without consultations or appropriate studies demonstrated questionable judgment; (2) appellant's post-operative care, wasting time on unnecessary procedures which possibly contributed to the patient's death and the unusual manner in which these were performed showed a lack of judgment; (3) that another patient was scheduled to undergo a similar elective major vascular surgery by appellant the very next morning, that similar errors in judgment might jeopardize that patient's safety; and (4) that their options under the hospital by-laws led them to believe that the danger to the next scheduled patient was an emergency situation calling for a summary suspension pending a full investigation. Dr. Daley, as Chief of Staff, decided that he would inform appellant of this decision to temporarily suspend; Mr. Johnson, the Hospital Administrator, concurred.

Less than one month after his suspension, appellant was reinstated with certain restrictions and conditions, through a series of formal hearings, all of which comported with due process standards. Appellant accepted the restrictions and conditions of his reinstatement and has no complaints about these formal hearings. He complains of the initial suspension as being unwarranted, contrary to the hospital bylaws, not justifiable as an emergency situation, and as the product of malice and ill will towards him by the doctors involved.

The appellees in the lower court moved for summary judgment, asserting that appellant had no actionable claim, that the court had no jurisdiction to review the matter, and that appellant did not make a sufficient showing of malice or bad faith by appellees to avoid the bar of the immunity statute, A.R.S. § 36-445.02, to his claim. The lower court granted appellees' motion for summary judgment and dismissed the appellant's complaint.

The threshold question which must be answered is whether this Court has jurisdiction to review the internal operations of a completely private hospital. Appellee, Phoenix Baptist Hospital, was built entirely from private funds and is maintained through its services and private donations. It is a private, non-profit hospital.

Generally the exclusion of a physician from staff privileges at a private hospital is a matter which will ordinarily rest within the discretion of the hospital's administrative authorities and is not subject to judicial review. Edson v. Griffin Hospital, 21 Conn.Sup. 55, 144 A.2d 341 (1958); See also cases cited in Annot., Exclusion of or Discrimination Against Physician or Surgeon by Hospital, 37 A.L.R.3d 645 (1971) and Note: Judicial Review of Private Hospital Activities, 75 Mich.L.Rev. 445 (1976). However, this general rule does not apply where, as here, there is a claim that the hospital did not conform to its own procedural requirements as delineated in its constitution, bylaws, or rules and regulations. Peterson v. Tucson General Hospital, Inc., 114 Ariz. 66, 559 P.2d 186 (App.1976); Davidson v. Youngstown Hospital Association, 19 Ohio App.2d 246, 48 Ohio Op.2d 371, 250 N.E.2d 892 (1969); and Silver v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564 (1972). We conclude that judicial review in this case is proper. Our review, however, is limited. Blende v. Maricopa County Medical Society, 96 Ariz. 240, 393 P.2d 926 (1964); Peterson v. Tucson General Hospital, Inc., supra.

In determining whether or not the hospital and its governing entities acted unlawfully, arbitrarily or capriciously in the implementation of the bylaws, which actions appellant complains of, we will review both the procedural and substantive aspects that arise thereunder. Holmes v. Hoemako Hospital, 117 Ariz. 403, 573 P.2d 477 (1977); Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253 (1974). "A rule may be arbitrary or capricious because it is itself irrational or because, in applying it to a particular situation, it is being enforced in an unfair way." Holmes, 117 Ariz. at 404, 573 P.2d at 478. The Arizona Supreme Court in Holmes reaffirmed the standard to be used in determining whether a hospital regulation was reasonable or arbitrary as being: "did it (the regulation) pertain to the 'orderly management of the hospital and in most instances . . . (was it) . . . made for the protection of patients'?" Holmes, 117 Ariz. at 405, 573 P.2d at 479, citing from Findlay v. Board of Supervisors of County of Mohave, 72 Ariz. 58, 230 P.2d 526 (1951).

Appellant's privileges were summarily suspended pursuant...