Weston v. Carolina Medicorp, Inc., No. 9021SC677

• Decision Date: 02 April 1991
• Docket Number: No. 9021SC677
• Citation: 102 N.C.App. 370,402 S.E.2d 653
• Court: North Carolina Court of Appeals
• Parties: Jonathan Dunbar WESTON v. CAROLINA MEDICORP, INC., and Forsyth Memorial Hospital, Inc., d/b/a Forsyth Memorial Hospital.

Page 653

402 S.E.2d 653

102 N.C.App. 370

Jonathan Dunbar WESTON v. CAROLINA MEDICORP, INC., and Forsyth Memorial Hospital Inc., d/b/a Forsyth Memorial Hospital.

No. 9021SC677.

Court of Appeals of North Carolina.

April 2, 1991.

Kennedy, Kennedy, Kennedy and Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice by Anthony H. Brett, Winston-Salem, for defendants-appellees.

GREENE, Judge.

The plaintiff appeals the judgment filed 22 November 1989 wherein the trial court denied the injunctive relief sought by the plaintiff.

In this case, the trial court sat as the factfinder. "It is well settled that when the trial judge sits as factfinder, his findings of fact are binding [on appeal] if they are supported by any competent evidence in the record, but his conclusions of law are reviewable." R.L. Coleman & Co. v. City of Asheville, 98 N.C.App. 648, 651, 392 S.E.2d 107, 108-09, disc. rev. denied, 327 N.C. 432, 395 S.E.2d 689 (1990) (emphases added); see also N.C.G.S. § 1A-1, Rule 52(c). Accordingly, the proper standard on appeal to challenge the trial court's findings of fact is the "any competent evidence" standard. Here, all of the plaintiff's assignments of error with regard to the trial court's findings assert that they are "clearly erroneous." The "clearly erroneous" standard is the federal standard for review of the trial court's findings of fact. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). The plaintiff's assignments of error with regard to the findings of fact are therefore ineffective to challenge the sufficiency of the evidence to support the findings under the "any competent evidence" standard of appellate review. Accordingly, the trial court's findings of fact are conclusive on this appeal. See Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 582-83, 347 S.E.2d 25, 28 (1986) (where plaintiff did not assign error to trial court's findings, they were conclusive).

We summarize the trial court's pertinent findings as follows: The plaintiff is an African-American physician specializing in obstetrics and gynecology and has practiced his specialty in Winston-Salem, North Carolina, since 1979. In 1979, he was granted medical staff privileges at Forsyth Memorial Hospital. The defendant Carolina Medicorp, Inc. [Medicorp], is a non-profit corporation which has owned the hospital's facilities since 1984. Defendant Forsyth Memorial Hospital, Inc. [Hospital], is a separate, private, non-profit corporation affiliated with Medicorp. The Hospital is the corporation which operates the hospital, and its board of trustees is the governing authority for the hospital.

Prior to 1984, Forsyth County owned the hospital's facilities. In 1983, the Forsyth County Commissioners voted to transfer the facilities to Medicorp, and the deed effectuating the transfer was executed and filed in January of 1984. The transfer was made pursuant to N.C.G.S. § 131E-8 (1988 & Supp.1990) which mandates the operation of the hospital "as a community general hospital open to the general public" and the provision of medical services "to indigent patients as the municipality or hospital authority and the nonprofit corporation shall agree." As a condition of the transfer, the County Commissioners have the right to appoint the majority of the Hospital's board of trustees. Forsyth County has no other involvement in the operation of the Hospital. Forsyth County has not provided any funding to Medicorp or the Hospital since 1984. All of the actions complained of in this proceeding are ones taken by Hospital rather than Medicorp.

In 1986, the Hospital adopted infectious disease control policies for patients infected with the HIV (Human Immune Deficiency) virus. These policies "required a physician admitting a patient with the HIV infection to place the patient on blood and body fluid isolation, a status which identifies a patient as being potentially infectious and also requires the use of protective measures for health care personnel coming in contact with the patient."

In February of 1988, the plaintiff admitted a patient whom he had known to be infected with the HIV virus since 1987. In August of 1987, the plaintiff reconfirmed that the patient was infected with the HIV virus. During this patient's admission to the hospital in February of 1988, she was treated for premature labor and discharged. The plaintiff did not place the patient on blood and body fluid isolation, did not notify any of the health care personnel treating the patient that she was infected with the HIV virus, and did not enter any information in the patient's medical chart at the hospital indicating that she had this infectious condition. Later in the month, the patient returned to the hospital in labor and had a rapid delivery which was managed by a nurse.

The nurse who handled the "delivery did not have gloves on both of her hands as is required by the policy known as 'universal precautions' (which is recommended by the U.S. Center for Disease Control and is required by State communicable disease regulations and the Hospital's policies) due to the speed at which the events during the course of the delivery occurred." Once Hospital personnel learned that the patient had the HIV virus, members of the nursing staff became concerned that the plaintiff had not followed the Hospital's blood and body fluid isolation policy. At an administrative hearing conducted to determine if the plaintiff had violated Hospital policy, Dr. Weston testified and admitted that he had conducted a confirmatory test on the patient in August of 1987 which indicated that she did have the HIV virus. The hearing committee concluded that the plaintiff had violated the Hospital policy and disrupted hospital operations. The investigating committee recommended that the plaintiff be suspended from the Medical Staff for three months. The hearing committee presented its recommendations to the Executive Committee which unanimously approved the recommendation that Dr. Weston's privileges be suspended for three months. "While the Medical-Dental Staff Bylaws provided Dr. Weston with the right to appeal this recommendation to the Hospital's Board of Trustees, he chose not to do so."

In 1989, the plaintiff was involved in various incidents which raised questions concerning whether the Hospital should continue to allow the plaintiff to practice medicine at the hospital. In one incident, a patient died from excessive blood loss after a surgery performed by the plaintiff. Another incident involved the plaintiff's alleged mismanagement of a laparoscopy, which is "a procedure involving insertion of an instrument into a patient to remove an ectopic (outside of the uterus) pregnancy from an ovarian tube." Another incident involved an alleged improper, premature cesarean section which endangered the baby's life. Another incident involved the alleged dropping by the plaintiff of a baby on its head during delivery.

Based upon these events, the plaintiff was summarily suspended from the Medical Staff. The plaintiff appealed the summary suspension to the Executive Committee and to the Hospital's board of trustees. Both bodies affirmed the suspension pending a full investigation. A three-member investigating committee was appointed to investigate these events. After the investigation, the Executive Committee deliberated and recommended that the plaintiff's staff privileges "be revoked because his 'medical judgment is impaired at this time.' The Executive Committee encouraged Dr. Weston to reapply for his privileges whenever he can demonstrate that his medical judgment has been restored and that he can comply with the qualifications for membership on the Medical-Dental Staff."

Based upon these findings, the trial court concluded, among other things, that the "Hospital's termination of plaintiff's Hospital Staff privileges was not 'state action,' " that the plaintiff did not have a contract with the Hospital, and that "[n]one of the actions challenged by plaintiff ... were arbitrary, capricious, unreasonable, discriminatory, retaliatory or otherwise in violation of law." Based upon its conclusions, the trial court ordered "that the plaintiff have and recover nothing of the defendants...."

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The issues are whether (I) a private, non-profit hospital in suspending and revoking a physician's staff privileges engages in state action; (II) N.C.G.S. § 130A-143 (1990) granted the plaintiff the absolute right to decide whether to divulge information about a patient's HIV test results to other medical personnel; (III) the plaintiff may bring claims for retaliation and discrimination pursuant to 42 U.S.C.S. § 1981 (Law. Co-op.1986); and (IV) a trial court may adopt the proposed findings of fact and conclusions of law prepared by an attorney.

I

The plaintiff argues that the trial court erred in concluding that the defendants did not violate the plaintiff's state and federal constitutional due process rights in suspending and revoking the plaintiff's staff privileges. We note initially that the trial court found that "[a]ll of the actions complained of in this proceeding are ones taken by Forsyth Memorial Hospital, Inc. [Hospital], rather than Carolina Medicorp, Inc. [Medicorp]." As mentioned at the outset, we are bound by the trial court's findings. Therefore, we limit our discussion to whether the Hospital violated the plaintiff's due process rights. Furthermore, the trial court found and concluded that the Hospital was a private, non-profit hospital. We are bound by the finding and we may not question the conclusion because the plaintiff did not properly assign error to it. N.C.R.App.P. 10.

"The Fourteenth Amendment of the [United States] Constitution provides in part that '[n]o State shall ... deprive any person of life, liberty, or property...