Yashon v. Hunt

• Decision Date: 22 September 1987
• Docket Number: No. 85-4027,85-4027
• Citation: 825 F.2d 1016
• Parties: 45 Ed. Law Rep. 488 David YASHON, M.D.; et al., Plaintiffs-Appellants, v. William E. HUNT, M.D.; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1016

825 F.2d 1016

45 Ed. Law Rep. 488

David YASHON, M.D.; et al., Plaintiffs-Appellants, v. William E. HUNT, M.D.; et al., Defendants-Appellees.

No. 85-4027.

United States Court of Appeals Sixth Circuit.

Argued June 15, 1987.

Decided Aug. 3, 1987.

Rehearing and Rehearing En Banc Denied Sept. 22, 1987.

John C. Elam (argued), Vorys, Sater, Seymour & Pease, Columbus, Ohio, for defendants-appellees.

Rudolph Janata, Porter, Wright, Morris & Arthur, Columbus, Ohio, Charles C. Warner (argued), for plaintiffs-appellants.

Before KENNEDY and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Plaintiff David Yashon, M.D., appeals from the order of the district court granting judgment in favor of the defendants and dismissing his action brought under 42 U.S.C. Sec. 1983 to compel his reinstatement to the attending medical staff at the Ohio State University Hospitals in Columbus, Ohio. The district court's order reentered a prior order of the court in which it had found that the defendants afforded plaintiff due process when they rejected his application for reappointment to the attending medical staff. On appeal, plaintiff claims that the Medical Staff Administrative Committee (MSAC) violated principles of administrative res judicata when, in rejecting his application, it considered charges which had been the subject of prior disciplinary proceedings. Plaintiff also argues that the administrative hearing held to consider his application did not comport with procedural due process. Plaintiff asserts six specific procedural due process violations: (1) denial of the right to present witnesses and additional documentary evidence; (2) failure by the MSAC to render a written decision explaining its reasons for rejecting plaintiff's application; (3) lack of written standards governing consideration of plaintiff's application; (4) insufficient written notice of the charges asserted at the hearing; (5) denial of any prehearing discovery; and (6) denial of the assistance of counsel at the hearing. Plaintiff lastly contends that the MSAC's decision violated his substantive due process rights. For the reasons which follow, we affirm the judgment of the district court.

I.

This case, which is now before the court for the third time, has a lengthy factual and procedural history which we review here to facilitate a complete understanding of the present appeal. Plaintiff is a duly-licensed neurological surgeon and tenured professor of neurosurgery at the Ohio State University College of Medicine. Pursuant to University Hospitals bylaws, only University faculty members may be appointed to the attending medical staff of University Hospitals. Staff members are appointed for one-year terms and must file an application for reappointment at the end of each term. Pursuant to this procedure, plaintiff was continuously on the attending medical staff from September, 1969 through June 30, 1981. Prior to June, 1981, plaintiff submitted his application for reappointment to Dr. Larry Carey, Chairman of the Department of Surgery, but Dr. Carey did not submit the application to the MSAC for consideration. Consequently, Dr. Carey prevented renewal of plaintiff's staff privileges. This was the most recent of several disciplinary actions or investigations initiated against plaintiff.

The first such action involved a detenurization proceeding based on the allegation that plaintiff engaged in "gross misconduct" by using another faculty member's name in a grant application without that faculty member's permission. Dr. Henry Cramblett, then Dean of the College of Medicine, reversed the charge, observing that plaintiff's conduct was "serious" but did not alone warrant detenurization, especially since plaintiff had subsequently notified the National Institute of Health to withdraw the other faculty member's name from the grant application.

The second action was an attempt to remove plaintiff from the attending medical staff based on charges raised by Dr. Carey in late 1979. An Investigation Committee reviewed the charges and, finding them to be substantial and the cause of obvious disruption, recommended further review. A Grievance Committee subsequently reviewed the charges and issued a report finding no basis for charges of incompetency, no evidence of disruptiveness caused by plaintiff, and unfair harassment by Dr. Carey. The Grievance Committee recommended that plaintiff be restored to his full medical staff privileges. The Grievance Committee's report was reviewed by Dr. Manuel Tzagournis, then Associate Dean of the College of Medicine. When Dr. Tzagournis asked the Grievance Committee to provide him with information explaining the basis for its conclusions, the Grievance Committee declined to do so. Dr. Tzagournis ultimately concluded that plaintiff's past conduct was disruptive and justified a "strong reprimand" but did not warrant curtailment of medical staff privileges. After plaintiff appealed the reprimand to an Executive Committee, Dr. Tzagournis told him that the Committee could confirm, reject, or modify his decision to issue a reprimand. Plaintiff eventually abandoned his appeal.

The third prior action was initiated against plaintiff by Dr. Hunt, then Chief of Neurological Surgery Service. A four-physician committee found that plaintiff engaged in improper conduct when he removed a note written by Dr. Hunt from a patient's chart. The committee did not believe, however, that it was in a position to render a decision as to any illegality of plaintiff's conduct.

The fourth prior action was taken by Dr. Carey, who suspended plaintiff's admission and operating room privileges in May of 1980 because of the "Brumfield" incident. It was alleged that plaintiff failed to properly respond to a resident's request that he come to the hospital to attend to a patient. Plaintiff's privileges were reinstated in July of 1980 pursuant to a decision of the Executive Committee.

Most of the charges involved in these prior disciplinary actions were relied upon by Dr. Carey as grounds for withholding plaintiff's application for reappointment to the medical staff.

On July 15, 1981, plaintiff filed the instant action against Dr. Carey, the individual members of the MSAC, and other University physicians and officials. ¹ Plaintiff sought to compel his reinstatement to the attending medical staff and to enjoin further disciplinary actions against him.

On July 17, 1981, the district court entered a consent order whereby the parties agreed that plaintiff would retain his medical staff privileges until plaintiff's request for injunctive relief was resolved. That same day, the court conferred with counsel for both parties and the parties ultimately agreed to submit plaintiff's application for reappointment to the MSAC for disposition in the same manner as other applications. The district court suggested that Dr. Carey and plaintiff each make a presentation to the MSAC concerning Dr. Carey's reasons for not recommending plaintiff's reappointment to the medical staff, but the court did not suggest or order that the MSAC conduct a "due process" hearing. The court told the parties that no counsel were to be present at the hearing.

Plaintiff subsequently received two written notices of the hearing by letters from Dr. Tzagournis and Dr. Michael Whitcomb, chairman of the MSAC. Accompanying Dr. Whitcomb's letter was a copy of the letter Dr. Carey had written Dr. Tzagournis, listing the specific charges against plaintiff. Plaintiff also spoke with Drs. Tzagournis and Whitcomb by telephone prior to the hearing, and they both explained that they had no knowledge of any witnesses who might be called by Dr. Carey.

The MSAC hearing was held on September 1, 1981, with Dr. Whitcomb making the following opening statement:

Our purpose here this morning is to review Dr. Yashon's application or request for reappointment to the medical staff.... I would like to point out, this is not a court of law. We have no absolute set guidelines in terms of the proceedings which we are compelled to follow, but our format will be such that I will ask [Dr. Carey] if he chooses and [Dr. Yashon] if he chooses to make some initial comments ... and then for [Dr. Carey] to present specific reasons why he chose not to recommend [Dr. Yashon] to the staff and, as we go through the process, to allow [Dr. Yashon] to respond to those point by point.

Dr. Carey then gave his opening statements, explaining that he was going to present witnesses and evidence showing why plaintiff was an "undesirable member of this hospital staff." Dr. Carey also stressed:

I am in no position now, nor have I been in the past, to evaluate Dr. Yashon's competence as a neurosurgeon ... [b]ut I believe I am in a position and have the responsibility of determining whether or not an individual in the Department of Surgery is competent to practice in this institution. That says little specifically about his competence as a physician. It says something about his propriety as a member of the staff of a teaching hospital.

Plaintiff then made his opening statements, asserting that his work had been most satisfactory until Drs. Carey and Hunt began causing him problems in executing his duties. Plaintiff also raised several objections to the hearing's format, including the lack of notice of Dr. Carey's intention to call witnesses. Plaintiff stated:

I have asked Dr. Whitcomb and Dr. Tzagournis ... [a]re there going to be any witnesses? No witnesses. Now I find out there are going to be witnesses. I don't know what's going on. I will have to face them, but I am not prepared.... I object to that.

Although plaintiff objected to the presentation of witnesses by Dr. Carey, he did not ask for an opportunity to present his own witnesses. Plaintiff also objected that most of the grounds being relied upon by Dr. Carey had previously been found meritless by the Grievance Committee, that he had not...