Thompson v. Wise General Hosp.

• Decision Date: 24 February 1989
• Docket Number: Civ. A. No. 86-0200-B.
• Parties: Levester THOMPSON, M.D., Plaintiff, v. WISE GENERAL HOSPITAL, St. Mary's Hospital, Inc. and Norton Community Hospital, Defendants.
• Court: U.S. District Court — Western District of Virginia

707 F. Supp. 849

Levester THOMPSON, M.D., Plaintiff, v. WISE GENERAL HOSPITAL, St. Mary's Hospital, Inc. and Norton Community Hospital, Defendants.

Civ. A. No. 86-0200-B.

United States District Court, W.D. Virginia, Big Stone Gap Division.

February 24, 1989.

Levester Thompson, M.D., Emporia, Va., pro se.

Elsey A. Harris, III, Norton, Va., William W. Eskridge, Abingdon, Va., D. Stan Barnhill, Roanoke, Va., for defendants.

MEMORANDUM OPINION

GLEN M. WILLIAMS, Senior District Judge.

The plaintiff, Levester Thompson, M.D., brought suit against the three defendant hospitals after they had terminated his privilege to admit patients. He alleges that they conspired to deprive him of his livelihood in violation of 42 U.S.C. § 1985(3); conspired to injure him in his business or profession in violation of Va. Code Ann. §§ 18.2-499 and 18.2-500 (1988); conspired in restraint of trade in violation of §§ 1 and 2 of the Sherman Antitrust Act; and that they interfered with his contractual rights in violation of 42 U.S.C. § 1981. The defendants have moved to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1) and 12(b)(6).

Although the factual background of the case is not complex, its procedural history is checkered, largely due to Dr. Thompson's frequent changes of counsel and present position before the court as a pro se plaintiff,¹ with frequent abandonment then recrudescence of causes of action and parties defendant. Briefly, however, Dr. Thompson filed suit in December 1986 against the three hospital defendants and eleven individuals (doctors and administrators) associated with the hospitals. The court dismissed the claims against the individuals on motion of Dr. Thompson's then attorney; another attorney subsequently attempted to reassert the claims against the individual defendants, as did Dr. Thompson after he began representing himself. After the last of Dr. Thompson's four attorneys withdrew in a dispute over fees, the court entered an order dated September 13, 1988 granting Dr. Thompson thirty days to obtain service on the individual defendants. When this was not done, the court entered an order dismissing the case against the individuals with prejudice. The case is now before the court on the motions to dismiss filed by the three hospitals.

The gravamen of the complaint is that the defendants conspired to deprive the plaintiff, who is black, of his livelihood by denying him hospital privileges, without which he could not, it is claimed, practice medicine in Wise County, Virginia. The hospitals are all located in Wise County.

Dr. Thompson's Second Amended Complaint alleged that his staff privileges at St. Mary's Hospital in the City of Norton, Virginia, were terminated after complications developed in one of his patients who had been operated on for a ruptured appendix. Dr. Thompson did not perform the operation and alleges that the real culprit was the patient's surgeon, who received only a reprimand from the hospital and continues to practice there. After his privileges were suspended by letter on November 16, 1984, he was afforded a hearing in January 1985 at which two members of St. Mary's administration and its lawyer were present, in addition to Dr. Thompson and his lawyer. The hearing proceeded despite the complaints of Dr. Thompson's lawyer that a quorum was not present. Dr. Thompson alleges that no official decision was ever reached by the panel and that he was denied the opportunity to appeal to the hospital's Board of Trustees, as set out in St. Mary's bylaws.

Dr. Thompson was suspended from his obstetrics practice at Wise Hospital in Wise, Virginia following two incidents late in 1985 which caused the hospital staff to question the adequacy of care he provided during and after the time two of his patients were giving birth. Once again, Dr. Thompson denies that he in any way deviated from the applicable standard of care. Nevertheless, the Board of Trustees of Appalachian Regional Healthcare, the owners of Wise Hospital, voted to terminate his privileges in obstetrics.

The story at the third area hospital, Norton Community, was much the same, with Dr. Thompson losing his privileges in the Intensive Care Unit when one of his patients died after an operation (performed by another doctor) and another patient suffered post-operative complications. In both instances, the plaintiff maintains that the problems were the result of the actions of other doctors involved in the case. Nevertheless, after a full review, an ad hoc committee of the hospital staff recommended that his privileges at the ICU be revoked, which action was confirmed by the hospital's Board of Trustees. The revocation was effective as of August 1, 1986. The Board of Trustees and the medical staff reaffirmed the decision two weeks later.

As a result of the loss of these privileges at the hospitals in the Norton-Wise area, the plaintiff alleges that he was forced to move to Emporia, Virginia, in the eastern part of the state, to begin his practice anew. He says that as a result of the stain on his record caused by the defendants, however, he has not been able to get full staff privileges at the local hospital.

I.

Count I of the complaint alleges a violation of 42 U.S.C. § 1985(3), which states, in relevant part, that

if two or more persons ... conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

The key word in the statute is "conspire." Before a claim under it can be made out, a claim of conspiracy must be "alleged with sufficient specificity and factual support to suggest a `meeting of the minds.'" Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.1985). Although the Amended Complaint does specifically allege that "Defendants, with express knowledge of the action of the other Defendants, acting upon such knowledge, engaged in a concerted and conspiratorial effort to deprive Plaintiff, by reason of his race, of his livelihood," the specific factual allegations set out in the complaint provide no support whatever for this legal conclusion. Assuming that everything happened exactly the way the complaint alleges that it did, the most that it has shown is that each hospital, apparently acting independently, terminated Dr. Thompson's privileges for problems that were someone else's fault. Notably, the termination by Wise General came 14½ months after the termination by St. Mary's, and Norton Community terminated Dr. Thompson's ICU privileges more than six months after that, or nearly two years after St. Mary's. A hospital, being an inanimate entity, cannot itself conspire with anyone or anything; some human agency must be involved. There is no indication in the complaint of who, when, how, or where any doctors, administrators, or other individuals connected with any of the defendants conspired to deprive Dr. Thompson of any rights or privileges. And the timetable of the terminations, spread out over two years, is hardly silent evidence of a conspiracy.

The Supreme Court has stated, in discussing the requirements of a § 1985 claim, that

the language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action.

Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

The plaintiff has not shown any racebased animus behind the terminations, nor that the terminations were in any way connected with each other. To sufficiently allege conspiracies under the Civil Rights Acts

federal courts have come to insist that the complaint state with specificity the facts that, in the plaintiff's mind, show the existence and scope of the alleged conspiracy. It has long been the law ... that complaints cannot survive a motion to dismiss if they contain conclusory allegations of conspiracy but do not support their claims with references to material facts.

Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977) cert. den. 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). Accord Briscoe v. Lahue, 663 F.2d 713, 723 (7th Cir. 1981); affirmed 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Arseneaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982); Croatan Books, Inc. v. Virginia, 574 F.Supp. 880, 888 (E.D.Va.1983).

As the complaint makes no reference to material facts, the § 1985 count must be dismissed.

II.

A.

The plaintiff's claim that the defendant hospitals interfered with his contractual rights is based on 42 U.S.C. § 1981, which states:

All persons within the jurisdiction of the United States shall have the same right in every state ... to make and enforce contracts ... and to the full and equal benefits of all laws ... as is enjoyed by white citizens.

The two "prongs" of this section are those concerning 1) contracts and 2) equal benefits. The Fourth Circuit twice has ruled that state action is required to bring an "equal benefits" action. Shaare Tefila Congregation v. Cobb, 785 F.2d 523, 527 (4th Cir.1986), rev'd in part on other grounds 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987); Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344 (E.D.Va.1983), affirmed 742 F.2d 1448 (4th Cir.1984).

Defendants maintain that since they are private hospitals there is no element of state action and Dr. Thompson therefore has no case to bring under this clause. As the Third...