Shaw v. Hospital Authority of Cobb County

• Decision Date: 29 January 1975
• Docket Number: No. 74-1018,74-1018
• Citation: 507 F.2d 625
• Parties: Dr. Allen SHAW, Plaintiff-Appellant, v. The HOSPITAL AUTHORITY OF COBB COUNTY and its individual members, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 625

507 F.2d 625

Dr. Allen SHAW, Plaintiff-Appellant, v. The HOSPITAL AUTHORITY OF COBB COUNTY and its individual

members, et al., Defendants-Appellees.

No. 74-1018.

United States Court of Appeals, Fifth Circuit.

Jan. 29, 1975.

Richard H. Still, Jr., Marietta, Ga., for plaintiff-appellant.

Werner Strupp, Howard Adler, Jr., Washington, D.C., for Am. Podiatry Assoc.

Irma B. Glover, Garvis L. Sams, A. Harris Adams, Marietta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

BELL, Circuit Judge:

We are required in this appeal to apply the 'procedural due process-- liberty or property interest' principle outlined in Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, to the claim of a podiatrist to staff privileges in a public hospital. We vacate and remand for further consideration.

The complaint against the defendants, the Hospital Authority and its individual members, claimed arbitrary conduct on their part in denying appellant staff privileges at Cobb General Hospital, a hospital under the supervision of the defendants. The component parts of this general claim are alleged denials of substantive and procedural due process as well as equal protection, all as afforded appellant by the Fourteenth Amendment.

Appellant, Dr. Shaw, is a Doctor of Podiatric Medicine and Surgery licensed to practice in the State of Georgia. His competence and individual qualifications have not been challenged by the defendants. He has been granted staff privileges at Bolton Road Hospital in Atlanta, Georgia, and at Doctor's Hospital in Tucker, Georgia, both private hospitals. He is currently engaged in the practice of his profession in the immediate vicinity of Cobb General Hospital.

Appellant's application for staff membership at Cobb General Hospital was denied on the basis of the by-laws of the Hospital Authority and by the by-laws of its 'Medical-Dental Staff' which allow membership only to full-practice physicians and duly licensed dentists. A podiatrist such as Dr. Shaw would not come within this definition as Ga.Code Ann. 84-601, defines 'podiatry' as 'diagnosis, medical, surgical, mechanical, manipulative and electrical treatment . . . of the human foot and leg' and states that 'no podiatrist shall do any amputation or use any anesthetic other than local.' Thus podiatrists do not hold full-practice licenses because under Ga.Code Ann. 84-901 the 'practice of medicine' is not defined as limited to any area of the body. ¹ Further the power to grant licenses to practice podiatry is vested in the State Board of Podiatry Examiners while the power to grant licenses to practice medicine is vested in the Composite State Board of Medical Examiners. Dentists are also limited by law to one area of the body (See Ga.Code Ann. 84-701 et seq.) and they are licensed other than by the Composite Board of Medical Examiners. The Hospital Authority explains its exception for dentists on the grounds that they perform functions which are not offered by other members of the medical community. This is not the case with podiatrists, as the services they provide are already available from the existing staff, specifically orthopedic surgeons.

The Hospital Authority of Cobb County is the governing body of Cobb General Hospital, a public hospital constructed with state and federal funds under the Hill-Burton Act, 42 U.S.C.A. 291 et seq. Therefore its acts in precluding Dr. Shaw from staff privileges are state acts subject to the provisions of the Fourteenth Amendment. Sosa v. Board of Managers of Val Verde Memorial Hosp., 5 Cir., 1971, 437 F.2d 173; Foster v. Mobile County Hosp. Bd., 5 Cir., 1968, 398 F.2d 227.

Appellant made application for staff privileges at Cobb General on April 19, 1973. He expressed a desire to meet with the executive committee of the Medical-Dental Staff to discuss a change in its by-laws, indicating that he was aware that same did not provide for podiatrists on the staff. Dr. Shaw was invited to and attended the meeting of May 8, 1973 in which he was given some 30 minutes to pass out literature and answer questions. After Dr. Shaw left the meeting, the Executive Committee decided to recommend to the Hospital Authority that no change be made in the Staff by-laws.

Dr. Shaw was informed of this action and his attorney responded with a letter to the Hospital Authority objecting to the rejection of Dr. Shaw's application on the basis of the by-laws and appealing on Dr. Shaw's behalf to the members of the Hospital Authority to reconsider the rejection. The attorney stressed that his client could not be denied staff membership on the basis of by-laws which were unreasonable, arbitrary and discriminatory. A reply to the attorney stated that his letter had been presented to the Hospital Authority at its regular meeting on June 20, 1973 and that 'the Authority did not feel it appropriate to direct the Staff to change its by-laws nor did the Authority take any action toward changing its own by-laws.'

Appellant contends that the Hospital Authority's denial of his application on the basis of by-laws which exclude podiatrists as a class while admitting dentists, who are also limited by law to one area of the body, is a violation of his equal protection rights. He maintains that he is licensed by the State of Georgia to perform certain operations and that the hospital facilities are necessary for the convenience of his patients who reside in Cobb County, the area of his practice, and alleges this to be a denial of substantive due process. He also claims a denial of procedural due process with respect to the hearing process.

In the view we take of this case, we reject the equal protection claim and find it unnecessary to denominate, as such, any issue as to substantive due process. ² We do find a liberty interest subject to procedural due process safeguards, and because this case was not considered by the defendants on this basis, we direct that it be reconsidered.

Under the equal protection claims, appellant attacks the classifications created by appellee's by-laws, arguing that all those licensed by the State of Georgia to practice the healing arts are members of one class. He contends that granting staff privileges to full-practice physicians and dentists while denying them to podiatrists creates classifications which have no rational basis. ³ We believe that this argument is too attenuated. Such a class is too large to be meaningful and we are unable to equate the various branches of the healing arts which would necessarily be included. Therefore, we reject appellant's equal protection claim. The facts simply do not make out a case of persons similarly situated within the equal protection clause treatment requirement 'that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 1920, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989, 991.

Finally, Dr. Shaw contends that he was denied procedural due process because his application was considered in summary fashion by appellee. His criticism is aimed at the thirty-minute hearing before the Medical-Dental Staff and the Hospital Authority's refusal to consider changing its by-laws on the strength of this hearing. Before the requirements of procedural due process apply there must be a deprivation...