HYMAN DUBY vs. JOEL BARON & others. [Note 1]

QUIRICO, J. The plaintiff, a physician and surgeon, brought this action in the Superior Court for declaratory and injunctive relief following the temporary suspension of his hospital staff privileges by the executive committee of the medical staff of The Jordan Hospital (hospital) in Plymouth. The committee's action resulted from certain allegedly improper surgical and medical procedures performed by the plaintiff on one of his patients at the hospital. The case is before us on the plaintiff's appeal from the judgment upholding the suspension. [Note 2] We affirm.

We summarize the pertinent facts found by the judge of the Superior Court. The plaintiff, a physician specializing in general surgery and obstetrics, has practiced his profession in Plymouth since he was first licensed therefor in 1931. He has been a member of the active medical staff of the hospital since 1933 and has held various positions there incident to his staff membership.

The hospital is licensed and is organized as a charitable corporation under the provisions of G. L. c. 180. It is administered and operated under three sets of by-laws -- one set governing the proceedings of the corporation itself, a second set governing its board of directors, and a third set governing its medical staff.

In accordance with the applicable by-laws, the plaintiff's membership on the medical staff has consisted of a series of successive one-year appointments made by the hospital's board of directors. His most recent appointment expired on September 30, 1973. [Note 3]

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On July 26, 1973, the plaintiff performed a therapeutic abortion on one of his patients at the hospital. Following the operation, the patient's condition deteriorated, and, after repeated telephone calls to the plaintiff from members of the nursing staff regarding the patient's condition and a severe warning by the chief of obstetrics at the hospital as to possible complications, the plaintiff performed a second operation on the patient on July 27, 1973. He made no notation of either operation in the hospital records. Thereafter, questions arose as to the propriety of the plaintiff's surgical and medical procedures, and on the afternoon of July 27, 1973, he was instructed by Dr. Clifford Agnew, the chief of surgical services at the hospital, to perform no further surgery there. Dr. Agnew had been apprised of the circumstances of the plaintiff's treatment of the patient in question. He was aware of the fact that the plaintiff's past association with the hospital had been marked by similar incidents of alleged improper treatment of patients. [Note 4] He also knew that the plaintiff had scheduled another abortion to be performed on July 31, 1973.

On July 30, 1973, Dr. Agnew sent letters to the executive committee of the medical staff, and to the credentials committee, reporting his action in instructing the plaintiff not to perform further surgery at the hospital and recommending to the two committees that the plaintiff "be deprived of surgical privileges at The Jordan Hospital." That same day, the executive committee met and heard an oral report on the matter by Dr. Agnew, who recounted

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in detail the allegedly improper treatment rendered by the plaintiff. The committee then made a "Preliminary Report," stating in part: "It is the conclusion of the Committee that reasonable cause exists as to whether [the plaintiff's] performance as a staff member in this case (a) meets acceptable professional standards of medical care (By-Laws, Article II) and (b) insures the best possible care to patients admitted to the Hospital (By-Laws, Article II)." The minutes of that meeting indicate that the executive committee (1) agreed that the preliminary report "should be referred to the Credentials Committee under the procedures of . . . [applicable by-laws] to determine appropriate action, if any, which should be taken relating to [the plaintiff]," and (2) suspended the plaintiff temporarily, effective immediately. The vote of suspension is reproduced in the margin. [Note 5]

Immediately after that meeting of the executive committee the president of the medical staff notified the plaintiff by telephone of his temporary suspension. The staff president confirmed the notification by a letter dated July 30, 1973, and received by the plaintiff on August 3, 1973, which stated in part: "The Executive Committee has voted that you be temporarily suspended from all staff privileges at The Jordan Hospital pending the outcome of the full procedures under By-Laws, Article VI, section 2-b and that this temporary suspension shall become effective immediately." Enclosed therewith were copies of the minutes of the meeting, the preliminary

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report made by the executive committee, and a letter to the chairman of the credentials committee.

On August 1, 1973, the plaintiff commenced the present action by the filing of his bill in equity in the Superior Court. On August 6, 1973, the president of the hospital wrote the plaintiff informing him of the hospital executive committee's awareness of the action taken by the medical staff executive committee on July 30, 1973, and confirming that such action was in effect. The letter further stated that: "The hearing procedures, as outlined in The Jordan Hospital Medical Staff Bylaws are to be followed, and the Hospital Executive Committee will take further action when it is in receipt of the Medical Staff's report and recommendations."

On August 10, 1973, the chairman of the credentials committee wrote the plaintiff advising him of the nature of the evidence which that committee would consider at a hearing to be held on August 16, 1973, relative to the suspension of his hospital staff privileges. A hearing was held on that date, and on September 20, 1973, the credentials committee made its written report on the matter to the medical staff. The plaintiff's appointment to the staff expired on September 30, 1973. On October 1, 1973, the medical staff voted not to reappoint him, and on October 18, 1973, the executive committee of the board of directors of the hospital adopted a similar vote.

After a trial in the Superior Court, the judge ordered the entry of a final decree (a) declaring that the action of four of the named defendants in temporarily suspending the plaintiff from staff privileges "was lawful and violated none of his rights," and (b) dismissing the substitute bill of complaint as to the two other defendants "for lack of any controversy between the plaintiff and either of them." The plaintiff seasonably appealed from that final decree.

The evidence at the trial of the case was ordered reported under G. L. c. 214, Section 24. The plaintiff requested a report of material facts under G. L. c. 214,

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Section 23, whereupon the judge adopted as his report the findings which he previously had made voluntarily as a part of his decision of the case. (Sections 23 and 24 have been since repealed by St. 1973, c. 1114, Section 62.) Since the record of the evidence, consisting largely of testimony, and the exhibits are before us, "it is our duty to examine . . . [them] and decide the issues according to our judgment as to the facts and the law, giving due weight to the findings of the judge which will not be reversed unless plainly wrong." LeBlanc v. Molloy, 335 Mass. 636, 637 (1957). Save-Mor Supermarkets, Inc. v. Skelly Detective Serv., Inc., 359 Mass. 221, 223-234 (1971), and cases cited. We have examined the evidence and we conclude that the judge's findings of subsidiary facts are supported by the evidence and are in no instance plainly wrong. The subsidiary findings support the judge's general conclusions based thereon.

1. The plaintiff contends that the defendants' action in temporarily suspending his hospital privileges constituted a tortious interference with his medical practice. He argues that the judge erred in finding and ruling that such action was undertaken by the defendants "within the scope of each [of their] duties as a member of the [medical staff executive] committee . . . [and] in the reasonable belief that based on all of the facts the action on his part was warranted. See G. L. c. 231, Section 85N, inserted by St. 1972, c. 242." [Note 6]

In support of his contention, the plaintiff makes two arguments. He first argues that the by-laws did not give the executive committee the authority to suspend him

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temporarily, and that therefore G. L. c. 231, Section 85N, did not apply. We disagree.

The record demonstrates that the judge properly concluded that the committee did have such authority. We summarize the subsidiary findings on which he based his conclusion. Article 2 of the hospital by-laws vests the entire management of the business and affairs of the hospital in its board of directors "under such rules and regulations as they from time to time adopt, and through such committees, servants, and agents as they may appoint. The rules and regulations adopted by the board of directors expressly provide that "[t]he professional work at the Hospital shall be governed by the [Medical] Staff bylaws," and that "[m]atters of staff discipline shall rest in the hands of the Regular Staff, including the authority to temporarily suspend from the privileges of the Hospital" (emphasis supplied). The by-laws of the medical staff provide for an executive committee of the staff and define the committee's duties to include the duty "to act for the staff as a whole." Moreover, the medical staff by-laws provided that they would take effect when approved by the board of directors, and that "[u]pon such approval they shall be equally binding on the governing board [board of directors] and the medical staff"; the by-laws were approved by the board of directors, and were in full force and effect at all times material to this case.

The plaintiff argues in the alternative that any by-law by which the board of directors attempts to delegate to the defendants the authority to suspend temporarily a doctor's hospital privileges is void as matter of law. We disagree. The plaintiff bases this argument on the statement in Boston v. Curley, 276 Mass. 549, 562 (1931), that each member of a charitable corporation "is charged with the obligations of a trustee . . . [and that] [i]n general the duties of a trustee cannot be delegated . . . [but] are personal." We do not accept that statement as a holding that the directors are without power to delegate

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responsibility when reasonably necessary. The exigencies of the everyday administration of a hospital often necessitate summary action in order to maintain the required quality of patient care. Prompt action in temporarily suspending a physician's hospital privileges where the propriety of his treatment of patients has been called into question may be warranted and indeed in many cases essential in order to ensure that patients receive the best possible care which a hospital is able to provide. Citta v. Delaware Valley Hosp., 313 F. Supp. 301, 310 (E.D. Pa. 1970). It is entirely reasonable for the board of directors to grant the authority to suspend professional staff members temporarily, in appropriate circumstances, to a committee of professionals who are capable of making informed and knowledgeable decisions as to the professional competence of a staff member without undue delay. That such summary action must be taken promptly to be effective is underscored in the present case by the fact that the plaintiff was planning to perform another operation similar to the very operation which brought about his suspension now in issue.

The board of directors of the hospital have in no way delegated their responsibility to determine ultimately whether to dismiss a member of the medical staff. Under the staff by-laws, "[d]ismissal of a staff member is only accomplished by a vote of the Board of Directors after . . . [the procedure set forth therein relative to removal from the staff is followed]." [Note 7]

We thus conclude that the action of the executive committee of the staff was authorized under the applicable by-laws pursuant to a lawful delegation of authority to it by the board of directors, and that the defendants' action was within the scope of their duties.

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The judge's general finding that each defendant, in the language of G. L. c. 231, Section 85N, had acted "in good faith and in the reasonable belief that based on all of the facts the action on his part was warranted," is amply supported by the subsidiary findings contained in his report of material facts. No useful purpose would be served by repeating those findings.

2. The plaintiff next contends that the defendants' temporary suspension of his hospital privileges violated the due process clause of the Fourteenth Amendment to the United States Constitution, and concepts of "natural justice," which are "long recognized principles of Massachusetts equity jurisprudence." This contention is without merit.

The plaintiff claims the Fourteenth Amendment to be applicable to the action of the defendants on the basis of the hospital's receipt of Federal funds under the Hill-Burton Act, 42 U.S.C. Section 291 et seq. (1970), to remodel and enlarge its facilities. Differing views exist as to whether the mere receipt of such funds causes the actions of a hospital or its officers or agents to constitute or be the equivalent of "state" or "federal" action within the purview of the Fourteenth Amendment. Compare Sams v. Ohio Valley Gen. Hosp. Ass'n, 413 F.2d 826, 828 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959, 967 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964); Citta v. Delaware Valley Hosp., 313 F. Supp. 301, 307 (E.D. Pa. 1970); with Ascherman v. Presbyterian Hosp. of Pac. Medical Center, Inc., 507 F.2d 1103, 1104-1106 (9th Cir. 1974); Ward v. St. Anthony Hosp. 476 F.2d 671, 674-675 (10th Cir. 1973); Ozlu v. Lock Haven Hosp. 369 F. Supp. 285, 287 (M.D. Pa. 1974), aff'd 511 F.2d 1395 (3d Cir. 1975); Mulvihill v. Julia L. Butterfield Memorial Hosp., 329 F. Supp. 1020, 1022-1025 (S.D.N.Y. 1971). We need not and do not, however, reach or answer that question. We hold only that assuming the due process clause of the Fourteenth Amendment to be applicable, the temporary

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suspension of the plaintiff's hospital privileges by the defendants satisfied its requirements.

The plaintiff argues specifically that his right to due process was violated in that he was not given notice or granted a hearing prior to the temporary suspension of his hospital privileges. He does not argue that notice and a hearing prior to a temporary suspension of privilege or to other summary interim action is constitutionally required in all cases. He apparently recognizes that it has long been held that, consistent with due process, "where harm to the public is threatened, and the private interest infringed is reasonably deemed to be of less importance, an official body can take summary action pending a later hearing." R.A. Holman & Co. v. Securities & Exch. Comm'n, 299 F.2d 127, 131-132 (D.C. Cir.), and cases cited, cert. denied, 370 U.S. 911 (1962). Rather, he urges that such procedural safeguards should have been afforded him before the defendants acted in the present case in view of the serious consequences which the suspension had on his medical practice. We disagree.

Where "questions concerning [a physician's] operative procedures touch on the quality of the care his and the hospital's patients receive at his hands, . . . a hospital has ample justification for acting before extending a hearing to the physician." Citta v. Delaware Valley Hosp., 313 F. Supp. 301, 309 (E.D. Pa. 1970). The facts as found by the judge demonstrate that this was a case involving serious questions as to the propriety of the plaintiff's surgical and medical treatment of one of his patients and one involving potential danger to another of his patients as well. We hold, therefore, that, in so far as due process applies, the defendants were justified in temporarily suspending the plaintiff's hospital privileges prior to and pending a hearing and ultimate determination of the matter. The governing by-laws of the medical staff and of the board of directors of the hospital provide an extensive procedure for prompt hearing and review of the temporary suspension. The procedure gives ample

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protection to a staff member against whom a complaint or charge has been brought. [Note 8] The findings of the judge reveal that the defendants and other hospital officials were acutely aware of this procedure, that they followed it, and that they provided the plaintiff with adequate notice of the course of action as each step was taken. There was no denial of due process in these circumstances.

For the reasons above set forth regarding the plaintiff's due process claim, we also conclude that there was no violation of "principles of natural justice," as argued by the plaintiff, citing Becker v. Calnan, 313 Mass. 625, 628

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(1943). In so concluding, we in no way attempt to define or limit such principles, but rather confine our holding to the facts of the present case in which the plaintiff seems to be equating fundamental requirements of constitutional due process with "the principles of natural justice" as such words are used in the Becker case.

3. The plaintiff also contends that the denial of his motion to add the hospital as a party defendant was error. In light of the conclusion which we reach as to the plaintiff's substantive contentions, we need not resolve this issue. Since the plaintiff does not represent that he would allege any claims or present any evidence against the hospital additional to or materially different from what is before us against the present defendants, the denial of his motion in no way prejudiced him, and its allowance at this stage would clearly serve no purpose.

4. Lastly, the plaintiff argues that if he was obligated to exhaust remedies within the hospital, he was excused from this obligation because the appellate tribunal at the hospital prejudged the issue involved in his case. While it appears that the plaintiff may well have instituted judicial proceedings prematurely after a temporary suspension, by rendering a decision on the substantive merits of the plaintiff's claims we have chosen to disregard this possible procedural defect. Since the plaintiff has been afforded a decision on the merits of his claims, further resolution of this procedural issue is obviously unnecessary.

5. The judgment entered in the Superior Court is affirmed.

So ordered.