Stern v. Tarrant County Hosp. Dist.

• Decision Date: 18 December 1985
• Docket Number: No. 83-1638,83-1638
• Citation: 778 F.2d 1052
• Parties: Paul A. STERN, et al., Plaintiffs-Appellees, v. TARRANT COUNTY HOSPITAL DISTRICT, Defendant-Appellant, v. George J. LUIBEL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1052

778 F.2d 1052

54 USLW 2337

Paul A. STERN, et al., Plaintiffs-Appellees, v. TARRANT COUNTY HOSPITAL DISTRICT, Defendant-Appellant, v. George J. LUIBEL, Defendant-Appellee.

No. 83-1638.

United States Court of Appeals, Fifth Circuit.

Dec. 18, 1985.

Tim Curry, Crim. Dist. Atty., Frederick M. Schattman, Fort Worth, Tex., for Tarrant County Hosp. Dist.

Bailey, Williams, Westfall, Lee & Fowler, Kevin J. Keith, Dallas, Tex., for Stern, et al.

Law, Snakard, Brown & Gambill, Alan Wilson, Fort Worth, Tex., for George J. Luibel.

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

Before CLARK, Chief Judge, and GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We reaffirm today the settled constitutional rule that state agencies may pursue legitimate purposes by any means having a conceivable rational relationship to those purposes. A decision that passes constitutional muster under the rational-basis test does not violate the equal protection clause simply because it violates a state anti-discrimination statute.

I

Five osteopaths were denied staff privileges by the John Peter Smith Hospital, which is operated by the Tarrant County Hospital District, a Texas state agency, because they had trained in an osteopathic institution and not in an allopathic program. Their attack upon the constitutionality of this exclusion was sustained by the district court after a trial on the merits. The district court, 565 F.Supp. 1440, held that the hospital had unconstitutionally denied the osteopathic physicians equal protection under the law and thereby violated the fourteenth amendment. This judgment was affirmed by a divided panel of our court. A majority of the judges of this court voted to consider the case en banc, thereby vacating the panel opinion. It is the judgment of the district court that we now review.

The factual background, as recited by the panel, is as follows:

John Peter Smith Hospital is operated by the Tarrant County Hospital District, a Texas state agency. Before 1974, the hospital bylaws permitted a physician to be a member of its staff only if he was a member of the Tarrant County Medical Society, an association which admitted only allopaths. In 1974, this was changed to require graduation with a degree of Doctor of Medicine (M.D.) from a school accredited by the Council on Medical Education of the American Medical Association. The Council accredits only allopathic schools and only allopathic schools award the M.D. degree; osteopathic schools award the degree Doctor of Osteopathy (D.O.). The requirements for admission to the hospital staff were again changed in 1979. The requirement of an M.D. degree was deleted, and instead, staff members were required to be licensed by the state and to have two years of post-doctoral training in a program accredited by the Accreditation Committee [on Graduate Medical Education]. [The Accreditation Committee is affiliated with the AMA and accredits only programs in institutions aligned with allopathic medicine.]

....

The parties stipulated that the sole reason the plaintiffs were denied staff privileges was because they had trained in osteopathic-institution programs [rather than in programs approved by the Accreditation Committee]....

In 1981, the Texas state legislature enacted the Medical Practice Act and declared its intention "to prohibit [state-agency hospitals from differentiating] solely on the basis of the academic medical degree held by" a licensed physician in determining medical staff appointments. [Tex.Rev.Civ.Stat.Ann. art. 4495b, Subchapter A, Sec. 1.02(9) (Vernon Supp.1984).] The Act recognizes that all physicians are examined by the same board, pass the same examination, and meet the same standards, "irrespective of academic medical degree." [Id.] In order to be licensed under the Act, a physician must have graduated from an approved medical school, but both schools accredited by the Accreditation Committee and those accredited by the American Osteopathic Association are approved.

[The plaintiffs in this case, Dr. Paul Stern and four other osteopaths, each of whom has had at least two years of post-doctoral training in a program accredited by the American Osteopathic Association, challenge the county hospital's refusal to grant them staff privileges.] ¹

II

-1-

The district court held that the hospital's rule denying staff privileges to those who trained in osteopathic-institution programs violated the plaintiffs' fourteenth amendment right to equal protection of the laws. The court found no justification for the hospital's requirement, save to exclude osteopaths from the hospital staff. That exclusion was itself irrational, the court concluded, because there were no significant differences between the qualifications of allopaths and osteopaths.

The district court noted the contrary decision of the Supreme Court in Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927), but refused to be bound by that case, given the changes in medical education requirements for osteopaths that had ensued in the fifty years since Hayman was decided. The court then characterized as dicta language in our own decision in Berman v. Florida Medical Center, Inc., 600 F.2d 466 (5th Cir.1979), which upheld a similar rule that denied staff privileges to osteopaths. The district court did not mention our decision in Maceluch v. Wysong, 680 F.2d 1062 (5th Cir.1982), in which we rejected a challenge by osteopaths to Texas' prohibition of their use of the initials "M.D."

Being in its view free of binding precedent, the district court concluded that there was no rational basis for the county hospital to treat allopaths and osteopaths differently, particularly in light of the contrary decision by the Texas legislature, as expressed in the Texas Medical Practice Act. Accordingly, the court struck down the hospital's rule as a violation of the equal protection clause.

-2-

The panel opinion adopted a different rationale but reached the same conclusion as the district court. Rather than hold Hayman outdated or distinguish Berman and Maceluch, the panel found "it unnecessary to reach so far." 755 F.2d at 433. Arguing that the Texas legislature has, in the Texas Medical Practice Act, expressed the determination that there are no appreciable differences in the allopathic and osteopathic medical degrees and that the Act forbids state hospitals to confer or deny staff privileges "solely on the basis of academic medical degree," the panel found an equal protection violation, implicitly concluding that there is no rational basis for the county hospital's rule.

In the panel's view, the equal protection violation stems from the hospital's violation of state law, its apparent disregard of the state requirement that osteopaths and allopaths be treated equally:

Because the state itself has required its agencies to treat allopathy and osteopathy alike, it is not necessary for us to consider whether the state might, if it chose to do so, find a rational basis for distinguishing between allopathic and osteopathic physicians generally. The Texas Medical Practice Act mandates that Texas institutions must accord equal treatment to professionals educated in either philosophy.

755 F.2d at 434.

Chief Judge Clark's concurring opinion endorsed this per se analysis and suggested an alternative rationale--that the county hospital's rule is unconstitutional as a violation of the due process clause. Chief Judge Clark found a property interest for osteopaths in staff privileges at the county hospital because the Texas legislature has commanded that staff privileges at such hospitals shall not be denied on the basis of academic medical degree. He then found that depriving the plaintiffs of this property interest was necessarily arbitrary and thus a violation of the fourteenth amendment. His reasoning parallels the per se analysis: regardless of the rationality of the state's choice under Hayman or Berman, Texas has decided that there is no reason to distinguish osteopaths and allopaths, and there can be no rational basis for its agencies to continue to do so.

III

We reject a per se equal protection analysis. The guarantees of the fourteenth amendment, its requirement that state laws be applied in the same way to those entitled to equal treatment and its promise of protection from arbitrary or irrational state action, are guarantees that turn on federal constitutional standards of equality and rationality rather than on state standards. Converting alleged violations of state law into federal equal protection and due process claims improperly bootstraps state law into the Constitution. In doing so, this novel approach would expand the scope of the fourteenth amendment, would render its meaning less certain, and would serve no legitimate policy.

-1-

The per se equal protection construct purports not to overrule or otherwise conflict with our decisions in Berman and Maceluch or the Supreme Court's decision in Hayman: it would permit the concession, but find it irrelevant, that a rational state legislature or state agency might distinguish between allopaths and osteopaths without violating the fourteenth amendment. Under the per se approach, a violation of federal equal protection is nonetheless found because the Texas legislature has enjoined its state hospitals to treat allopaths and osteopaths alike.

The per se approach assumes that by choosing to forbid discrimination against osteopaths, the state of Texas has necessarily made the contrary decision by its state-agency hospital an irrational one. We disagree. The outer constitutional limit imposed by the fourteenth amendment upon state power is that all the state's acts must be rational. In equal protection terms, if the legislative purpose be legitimate, a...