Woodbury v. McKinnon

• Decision Date: 24 September 1971
• Docket Number: No. 30420.,30420.
• Citation: 447 F.2d 839
• Parties: Philip S. WOODBURY, Plaintiff-Appellant, v. Neil McKINNON, Chairman, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.2d 839 (1971)

Philip S. WOODBURY, Plaintiff-Appellant, v. Neil McKINNON, Chairman, et al., Defendants-Appellees.

No. 30420.

United States Court of Appeals, Fifth Circuit.

July 12, 1971.

Rehearing and Rehearing Denied September 24, 1971.

COPYRIGHT MATERIAL OMITTED

George B. Azar, Montgomery, Ala., Christie G. Pappas, Eufaula, Ala., for plaintiff-appellant; Azar Campbell & Azar, Montgomery, Ala., of counsel.

Russell L. Irby, Eufaula, Ala., W. Inge Hill, Montgomery, Ala., Hill, Hill, Stovall, Carter & Franco, Montgomery, Ala., Attorneys for above-named defendants-appellees W. W. Bledsoe, Kendall Epps, Nell Epps, Edward T. Comer, James C. Doyle, John M. Jackson, Richard M. Whitehurst, and Kenneth C. Yohn.

Before CLARK, Associate Justice,^* and GEWIN and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 24, 1971.

RONEY, Circuit Judge:

This case originated on the complaint of Dr. Philip S. Woodbury that he had been deprived of surgical privileges at Barbour County Hospital without due process of law in that no charges had been made against him and that no hearing had been held. After the complaint was filed, the medical staff of the hospital held a hearing to consider and act upon Dr. Woodbury's qualifications to handle surgery and conduct surgical procedures in the hospital. Amending their answers to allege that such hearing had taken place, defendants moved for a summary judgment.

Upon a complete review of a transcript of the hearing, affidavits and exhibits, the district court found that the hearing was in accord with the requirements of procedural due process and that the hospital authorities had not acted arbitrarily, capriciously or unreasonably in refusing to reappoint Dr. Woodbury to the surgical staff. Finding that there was no genuine issue as to any material fact on these matters, the district court held that no substantive rights had been violated and granted summary judgment in favor of the hospital authorities. We affirm.

Plaintiff contends that he was denied procedural and substantive due process in both the administrative hearing and in the court below, and that there are issues of fact in this case which he is entitled to litigate.

It is argued that Dr. Woodbury's attorney was not allowed to question members of the medical staff of the hospital by deposition and written interrogatories and that he was not permitted to cross-examine or question them at the time of the administrative hearing. A determination of whether this violated due process depends entirely upon the purpose for which such interrogation was intended.

Appellant's brief states that this discovery would have shown that the cases, procedures and operations performed by the individual defendant members of the medical staff are no better and in some instances not as good as those of Dr. Woodbury, and that it would disclose that the rules and regulations which Dr. Woodbury is alleged to have violated are also violated by the very defendants who determine surgical privileges. He states that it is gravely material whether operations performed by other members of the medical staff are of a higher degree of skill, competence and ability than Dr. Woodbury.

The difficulty with the argument is simply that Dr. Woodbury has not brought that issue to court by any allegation of fact. Nor does the record support any such defense to the charges made against him in the administrative hearing. In any event, we think that the argument misses its mark as to Dr. Woodbury's rights in the posture of this case. It misconceives his substantive rights as balanced against the rights of the governing authority of the hospital.

Once having become a member of the hospital surgical staff Dr. Woodbury had a right to reappointment until the governing authorities determined after a hearing conforming to the minimum requirements of procedural due process that he did not meet the reasonable standards of the hospital. The decision resulting from the hearing must be untainted by irrelevant considerations and supported by sufficient evidence to free it from arbitrariness, capriciousness or unreasonableness. This is the extent to which Dr. Woodbury is entitled to substantive due process under the United States Constitution. Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968).

A doctor has no constitutional right to practice medicine in a public hospital. Hayman v. Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927). However, there is no dispute that the operation of this hospital is state action and that it is required to meet the provisions of the Fourteenth Amendment in the admission of physicians to its staff. Foster v. Mobile County Hospital Board, supra; Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966); Meredith v. Allen County War Memorial Hospital Comm., 397 F.2d 33 (6th Cir. 1968); see Annot. 37 A.L.R.3d 645 (1971).

The Constitution, however, does not prevent the hospital from establishing standards for admission geared to the purpose of providing adequate hospital care. This court has recently spoken to the broad discretion that must be given to the governing board of a hospital in setting the standards and in admitting physicians to its staff. Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971). Judge Goldberg there placed in proper focus the restraint that must be exercised in judicial consideration of challenges to hospital administration.

"No court should substitute its evaluation of such matters for that of the Hospital Board. It is the Board, not the court, which is charged with the responsibility of providing a competent staff of doctors. The Board has chosen to rely on the advice of its Medical Staff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow responsibility of assuring that the qualifications imposed by the Board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. Courts must not attempt to take on the escutcheon of Caduceus." Id. at 177.

It is within this setting that we consider Dr. Woodbury's appeal.

I. Procedural Due Process

The plaintiff contends that he was denied procedural due process in that (1) the notice of the charges was insufficient, (2) the right of cross-examination was denied, and (3) the medical staff was biased.

Considered in the light of opinions of the United States Supreme Court as to the requirements of due process, it is apparent that these arguments must fail.

"`Due process\' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts." Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307 (1960).

"The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria and Restaurant Workers Union, etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); see also Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 1971.

"Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, `due process\' cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, `due process\' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess." Joint Anti-Fascist Refuge Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Mr. Justice Frankfurter\'s concurring opinion).

"Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account." Hannah v. Larche, supra, 363 U.S. at p. 442, 80 S.Ct. at p. 1515.

A. Sufficiency of notice of charge. Dr. Woodbury was charged in writing with lack of competence and judgment to perform surgery and surgical procedures. Four specifications were noted: (1) lack of surgical judgment, (2) lack of an assistant while performing surgery, (3) assisting another who had no surgery privileges, and (4) training and background. The first three specifications contained names of specific cases and the hospital records of those cases were furnished to the plaintiff. The plaintiff requested the exact nature of the fault in each case. The Medical Chief of Staff refused because he felt that any competent doctor could discover that from the records and further that the records must be read in context as a unit.

We are concerned with whether sufficient notice was given to comply with minimum standards of due process and not whether the charges would survive the scrutiny applied to a criminal indictment. Bell v. Burson, supra, 402 U.S. at 540, 91 S.Ct. 1586. The notice was specific enough to permit the plaintiff to...