Curtis W. Caine, Jr., M.D. v. Hardy, M.D., Woodie L. Mason

satisfy the in order theirs would be running about contract conditions working minority view plant. We right plant of their forfeiture interests’ recognition explicit merely an

fuel as Thus, district we affirm this situation. is- plant fuel on determination court’s sue.

IV. Conclusion. done an able has court district this issues in thorough job plumbing regret the case. We difficult complex issue as the one on remand need for doubt, are but we there room will review court district that the confident expeditiously. completely and that matter part AFFIRMED judgment is RE- cause part, VACATED ac- proceedings in for further MANDED opinion. with this cordance M.D., CAINE, Jr., W. Curtis Plaintiff-Appellant, al., Mason, M.D., et HARDY, L. Woodie Defendants-Appellees. 89-4470.

No. Appeals, Court States United Circuit. Fifth 27, 1990. June En Rehearing Banc Granting Order Aug.

suit against hospital and the individuals participated who in the termination of Caine’s privileges. staff F.Supp. 166.

I. appeal

Because this is from an order dismissing lawsuit, Caine’s the facts al leged lengthy in Caine’s complaint are tak See, en as true. L L& v. Murphy Oil Co. Corp., Oil Cir. 1982).

Caine an anesthesiologist inwho granted privileges staff at Hinds Gen- Hospital, public hospital eral Jackson, Mississippi. he required by As was to do hospital bylaws, reapplied Caine for staff privileges year at two intervals. Caine’s applications reviewed, were and each time privileges his were renewed. anesthesiologists Three other practicing engaged at Hinds part- General were in a nership. partners These M.D. Hardy, M.D.; Wilson, Hardy’s spouse Darilynn M.D.; Strong, and Robert M.D. In 1987 partnership members of this sought an perform exclusive contract to anesthesia services at Hinds General. independent Caine and other anesthesi- ologists practicing object- at Hinds General proposed ed to the exclusive It contract. granted. against was not Caine also ran Hardy Chairmanship for the of the Hinds Department Anesthesiology. General Brown, Lexington, Ky. Kent Masterson Hardy won the election one vote. Neville, Jackson, Miss., and Paul M. alleges Hardy part- and his plaintiff-appellant. long ners not thereafter initiated an investi- Q. Evans, George Douglas Levanway E. gation practice into at Hinds Caine’s Gener- Ritter, Wise, Carter, George H. Child privileges al that resulted Caine’s staff Jackson, Miss., Caraway, & for defendants- being suspended by the Executive Commit- appellees. tee, then revoked Executive Commit- tee, finally formally terminated Hinds General Board of Trustees. Caine claims that denied he was process of law under the Fourteenth step. Amendment at each BROWN, Before WILLIAMS JONES, Judges. Circuit II. WILLIAMS, Judge:

JERRE S. Circuit Caine sued the and the individu- Caine, Jr., appeals suspension process Curtis W. M.D. a dis- als involved dismissing trict court order his alleged 1983 law- federal district court. He civil § rights pitals, hospitals claims under 42 U.S.C. 1983 and and have concluded that Quality Improvement provide the Health Care Act need not doctors full (the HCQIA), initially suspending of 1986 42 U.S.C. et due before seq. filing answer, appellees privileges Without medical staff if the filed a motion to dismiss for failure to state imposed protect hospital's patients. summary judgment. a claim or for filed a motion for leave to amend his com- Bobear, 1055, See Darlak v. 814 F.2d (5th Cir.1987). reading A fair of Caine's plaint speech in order to assert free claims complaint, however, indicates that he under the First Amendment to the United suspension claims that the initial was moti States Constitution. Caine's motion initial- by appellees' personal vated vendetta ly granted by the district court. La- against hospital's him and not inter ter, however, the district court reversed its protecting patient safety. est in Because decision and refused to allow Caine to accept allegation true, we must this as we complaint. amend his The court then must conclude that Caine does not come granted appellees' motion to dismiss. rule, within the Darlak but instead was court, relying The district on estab procedural process entitled to full due even precedent, § lished held that under suspend. in the decision to See Northeast the Pa'rratt/Hudson doctrine 1 Caine could Georgia Radiological Tidwel, Assoc. v. § not state a 1983 claim because the state 507, (5th Cir.1982) ("medical 670 F.2d provided adequate postdepriva him with an privileges embody staff such a valuable remedy. tion Under the Parratt/Hudson property hearing interest that notice and doctrine, a state can not be held liable for a prior predeprivation procedural should be held to its termination or denial of due withdrawal, extraordinary process absent some sit at the hands of a state actor if the government uation where a valid or medi is random and not authorized stake."). But, regardless poliéy provides cal interest is at and if the state adequate postdeprivation proce claimant with an of whether Caine was entitled to full remedy. Mississip process stage, The court held that the dural due certainly at this initial he pi procedure provided Caine an avenue of was entitled to full appeal from the action of the process due after the because Mississippi Chancery Court. The court longer the pressing could no have adequate postdepriva found this to be an patients need to its from remedy.2 ap tion Because Caine did not him. peal Chancery Court, the district Although pro- a doctor is entitled to full court held that he had not availed himself process available, adequate postdeprivation cedural due before his or her staff re privileges revoked, not, therefore, are that entitlement has lief. He could state a past automatically § not in the established a 1983 claim. privileges suspended § 1983 claim if are III. process. without Under the doctrine, previously weighed a state could not We employee's competing physicians be held liable for a state "ran- interests of and hos- 1. The Parratt/Hudsondoctrine takes its name Court. Miss.CodeAnn. 73-25-27. Cainealso &fpreme Tay- jury from two Courtcases: Parratt v. would not have been entitled to a trial lor, 527, 1908, although 451U.S. 101S.Ct. 68L.Ed.2d420 there were critical fact issues. We (1981)(overruled part, here,by not relevant havenotedbeforethat a districtcourt'sconclu Williams, 327, 662, Danielsv. 474U.S. 106S.Ct. Chancery remedy sion that this Court was ade (1986)) Palmer, 88 L.Ed.2d662 and Hudsonv. quate"appears sound," Martin, to be Schusterv. 3194, 468 U.S. 82 L.Ed.2d393 11 (5thCir.1988), 861F.2d have never so held. decidethe 1374n. but we becausewe (1984). Nonetheless, present grounds, deciding issue, case on other we 2. Without we note that we possible Mississippi's need not resolvethe the statementin Schusterand our view of the adequacy Mississippi'sChancery conflictbetween haveconsiderabledoubtthat Chan- cery provide adequatepostde- Courtwould an privationremedy. only Courtreme Cainewouldhavehad thirty days hig Chancery dy. to file annealto the provide dom and unauthorized” failure to The district court dismissed Burch’s predeprivation procedural process if claim, holding that under the Par- provided adequate postdepriva the state ratt/Hudson doctrine Burch could not es remedy persons tion deprived who were upon tablish a claim based the state’s fail property process of their without provide ure to him predeprivation pro See, law. County, Martin Dallas Tex cedural post- because Florida’s as, (5th Cir.1987). This deprivation tort remedies adequate. applied Court has the Parratt/Hudson This holding by panel affirmed doctrine even where the state employee Eleventh Circuit. Apalachee Burch v. depriving predepri- 1983 claimant of Community Services, Inc., Mental Health high- vation was a 1549, 1551(11th Cir.1986)vacated, 804 F.2d ranking employee charged state who was (1987). 812 F.2d 1339 After en banc re providing procedural for hearing, however, the Eleventh Circuit re Walker, Holloway that claimant. See v. versed the district court’s dismissal and 1170, (5th Cir.1986). 790 F.2d 1173 Other held that Burch’s 1983 claim was not § Appeals applied Courts of the Par subject to the Parratt/Hudson doctrine. broadly ratt/Hudson doctrine less than Apalachee Burch v. Community Mental See, Burkhart, e.g., we. v. 854 F.2d Watts Services, Inc., 797, Health 803 (6th Cir.1988). 839 (11th Cir.1988) (en banc). controlling But constitutional author- Supreme The Court affirmed the en banc ity changed. has After the district court Eleventh Circuit decision. The Court complaint, had dismissed Caine’s the Su- found that by Zinermon was not controlled preme Burch, Court decided Zinermon v. the Parratt/Hudson doctrine for three — -, 110 U.S. S.Ct. 108 L.Ed.2d First, deprivation reasons. of Burch’s (1990). grant- 100 The Court noted that it liberty unpredictable, did not occur at an ed certiorari in Zinermon to resolve con- predictable, rather at but a time. It was among Appeals flict the Courts of over the “[a]ny clear that will scope of the Parratt/Hudson doctrine. occur, all, if specific, predictable at at a Zinermon, 110 at 978. Zinermon point in the admission pa- a —when appellant controls case. Its hold- Caine’s given sign.” tient is admission forms to ing requires reconsideration of this Court’s Zinermon, Second, 110 S.Ct. at 989. jurisprudence. Parratt/Hudson impossible Court found that it was not brought by Zinermon was a suit § provide predeprivation Florida to pro- Burch, Darrell a man who had been de- voluntary cess in the mental health care hospital. tained the Florida state mental Third, procedure. admission the Court wandering along Burch had been found a employees’ held that the state conduct was highway, hurt and disoriented. After he not “unauthorized” as that term was used diagnosed paranoid schizophrenic, as a was and Hudson. The Parratt Court ex- employees signature state secured Burch’s plained: requesting voluntary on forms admission delegated employ- The State state [the hospital authorizing to the treatment power authority to effect ees] hospital kept staff. Burch was at here, very deprivation complained Upon for five months. his hospital, Burch’s confinement a mental release, Burch sued the and its delegated and also to them the concomi- staff federal court under 1983. Burch § duty procedural tant to initiate the safe- overtly incompetent claimed that he guards up guard set state law to signed he when the admission and treat- against unlawful confinement. In alleged ment authorization Par- forms. He Hudson, by inducing employees him to ratt and state commit himself under voluntary procedure authority deprive commitment had no similar broad in- involuntary prisoners personal initiating property, stead of commitment of their (for proceedings, hospital deprived duty persons him no similar to initiate liberty procedural process. interests) his without unable to their own — U.S.-, Durham, 110 S.Ct. Fields v. required before safeguards (1990). 108 L.Ed.2d deprivation here The occur. deprivations only in the sense

is “unauthorized” time the same at Supreme Court The law, by state sanctioned act not an it was to reconsider a Circuit the Seventh ordered con- “depriv[ation] of instead, a but, significantly involving facts case recent official’s rights ... by Dr. alleged stitutional facts analogous — Felder, position.” his U.S. abuse v. Easter House Caine. -, 108 L.Ed.2d 110 S.Ct. (citation omit- Zinermon, had Circuit (1990). en Seventh banc con- claim was ted). Burch’s Because doc- Parratt/Hudson under the held that doctrine, by the Parratt/Hudson trolled state could not adoption agency trine an stated properly Burch held the Court pro- failure for the state’s 1983 claim pro- failure state’s for the 1983 claim pro- agency with vide pro- predeprivation vide him part of an as employees, cess before cess. adoption rival alleged conspiracy with is that the of Zinermon lesson its state House agency, deprived Easter is restricted doctrine Felder, House operating license. Easter impossible for the truly is it cases where Cir.1989) (7th 1460-61, procedural predeprivation provide to state and Easter banc). Fields (en In both unpredictably person a process before due predictable, House, were deprivations the property liberty or of his deprived predepriva- provided have could the state conduct of a through the unauthorized depri- the process, and due procedural tion however, Zinermon, the In state actor. state ac- hands of at the occurred vations It unpredictable. was not deprivation was state to the authorized tors who were therefore, the state to impossible, not depriva- caused the actions that take the pro procedural predeprivation provide Zinermon, neither Thus, tions. under caused the actor who the state cess. Since con- should be House Easter Fields nor the ac to take authorized deprivation doctrine. by the Parratt/Hudson trolled the Par- deprivation, the caused tion that present case is that the conclude We apply. It did not doctrine ratt/Hudson subject not and is by Zinermon controlled the Parratt/Hudson when follows Caine doctrine. to the Parratt/Hudson plaintiff apply, a does § doctrine ade supplied with readily have been could failure the state’s a claim for can state suspension even before quate procedures pro procedural predeprivation provide case the posture the since under cess. suspension true show accepted as facts sup of interpretation pa safety of Our any threat without treatment Supreme event, Court’s by the it is also clear ported inBut tients. the Court after provided that reached Caine of two cases state could Durham, 856 F.2d in In Fields Zinermon. with full Cir.1988), college adminis privileges state stage before his pretermination under the state’s him. Fur discharged away from taken finally trator was were although proce towards ther, move procedures, it obvious dismissal alleg in would administrator termination and then provided dures directed Circuit held faulty. evitably proceedings Fourth result edly were applied privileges held before doctrine removal of staff that the deprivation Thus, not state a could the administrator state actors. and that than pro predictable case was more present state’s failure for the 1983 claim § and Easter pro in Fields deprivations were the predeprivation him vide actions in Finally, state actors’ Supreme Court vacated the House. cess. not unauthorized. present case were opinion and remanded Circuit’s Fourth power by delegated the Appellees further were “for Circuit to the Fourth case Zinermon_" as Caine of such deprive doctors light consideration (2d privileges. the staff That the Moore’s Federal Practice ed. 15.07[2] 1989). 15(a), may Caine’s case have resulted from “an Under the terms of F.R.Civ.P. therefore, position,” in permit- official’s abuse of his Caine should have been Zinermon, appel- does ted “as matter of words not make course” to amend his Zaidi, complaint. lees’ actions unauthorized. See 732 F.2d at 1220. allowing The district court erred in not hold, therefore, We the Par- amendment. ratt/Hudson doctrine does not bar Caine’s 1983 claim. VI. IV. We reverse the district court’s dismissal The district court also dismissed Caine’s appellant Caine’s 1983 claims and re- HCQIA, holding under the that this claims verse the district court’s refusal to allow provide Act “was not intended to ... complaint. Caine to amend his disciplined physician private with a cause REVERSED AND REMANDED. allege of action.” does not error JONES, EDITH H. Judge, Circuit dis- ruling. the district court’s This issue is not senting: us. before With respect my colleagues, all due I V. strenuously disagree with their conclusion — Caine claims that the district court Burch, U.S. -, that Zinermon v. erred in refusing to allow him to amend his (1990), 108 L.Ed.2d 100 “con complaint to add a claim under the First Depending trols” this on case. our inter Amendment to the United States Constitu pretation pro of Dr. Caine’s argues tion. He privileges that his allegations, cess Zinermon is either irrele revoked “in for retaliation ... vocal [his] distinguishable. vant or These terse con opposition proposed exclusive anes require elaboration, clusions because Zin- General,

thesia contract at Hinds the fail undoubtedly complicated already ermon Hardy regular ure of Dr. to call Anesthesia process overloaded jurispru due Department meetings required by as Medi dence. Bylaws, opposition cal Staff and [his] majority accept Dr. Caine’s unblush- Hardy Dr. in the election for of Chairman ing suspension claim that his initial was Department.” the Anesthesia The district by appellees’ personal “motivated vendetta proposed court refused Caine’s amendment against him” hospital’s and not in- initially accepting after it. The court held promoting patient safety. terest Dr. that the amendment failed to claim state a 50-page complaint Caine’s nowhere denies because Caine did not “establish that the suspended that he was fact under a speech public involved was a matter of hospital regulation which authorizes sum- urges speech concern.” Caine that his was mary suspension practitioner’s when a con- public a matter of concern because it in “requires duct that immediate action be operation public hospital. volved the of a protect any taken to patient(s) life of or 15(a) to reduce the substantial likelihood of im- provides, pertinent Fed.R.Civ.P. part, injury damages any pa- mediate or party may ... party’s amend the “[a] 2a, tient pleading once as ...” Article VI Hines General a matter of course at Hospital By-Laws Medical responsive time before a served_” Staff Rules and pleading is (1987).1 Regulations Appellees Among the volumi- never filed a re sponsive pleading, complaint nous documents attached to his but instead first filed hospital invoking is a letter from the their motion to for Arti- dismiss failure to state cle summary judgment. support suspension a claim or for VI 2a to its initial These privileges. motions are not of his medical I cannot think pleadings. Zaidi v. Ehr lich, 12(b)(6) 1218, (5th Cir.1984). that we are Rule 1219-20 bound to defer plaintiff’s Moore, characterization of his See also Fed.R.Civ.P. 7 and 3 J. charges against Df. Caine were of a The entire record in trial court was sealed veal that the by agreed par- order. It should not breach the most serious nature. however, confidentiality, ties’ desire for to re- 864 imme- secured that he demonstrate exhibits by a is it contradicted though even

claim infor- advice, sought additional legal diate alleg- of his one copy” of and correct “true investigat- meetings with the mal whether But documents. supporting edly granted, committees, which ing was sum- Caine Dr. not we assume or the for- continuances requested several he re- I contend suspended, marily go end, declined he hearing. In the mal constitution- that was process all ceived evidentiary hear- formal through with for claim a not stated has ally due Mississip- himself avail did not ing and relief. suspension. review judicial pi’s I. facts These 73-25-27. Ann. § Miss.Code summari Dr. Caine event In the Darlak, 814 fours all case on his place patients life “to suspended ly physi- rejected 1055, in we at F.2d patients”, danger to imminent prevent or summary challenge to process cian's ato constitutionally entitled he was sus- severe by a more suspension followed Supreme hearing. Both predeprivation had the Darlak, Caine Dr. inAs pension. long struck court Court informally before himself to defend chance so as process balance F.2d 814 suspended. summarily being pre-depri- for requirement dispense with could Darlak, Caine Dr. inAs 1062-63. a need there when remedies vation not, a formal invoke have, did but Taylor, v. Parratt state action. immediate summary sus- hearing just after process 538-39 451 U.S. assuming that Dr. Thus, pension. part (1981) overruled 420 68 L.Ed.2d on relying summarily suspended 327, 106 Williams, U.S. 474 v. Daniels attached documents pleaded and the facts (1986); Darlak 662, L.Ed.2d S.Ct. that Darlak plain complaint, it to his Cir.1987). In Bobear, F.2d any procedural forecloses has held circumstances, Court “the such has plain that It is also claim. post-depri for a statutory provision that a found- claim to a due application no tort reme common-law hearing, or a vation medical summary ed on satisfies deprivation, dy for privileges. — at -, Zinermon, U.S. process.” apparently majority at 984. II. a forecloses this rule that agree would ter- Dr. Caine’s that if assume we Even by Dr. Caine claim process sum- of the an abuse constituted mination to Article pursuant suspended (a) he was if a from arose or procedure suspension mary post- a furnished (b) he was 2a and VI § that he agree action, I cannot non-summary hearing. deprivation conclusory asser- the by a claim has stated complaint Dr. Caine’s “denied he was allegations that tion The to his both attached it fulfill documents to attached process.” records the hospital re- the demonstrating that he that conditions, prove instead complaint these proce- protect the to post-deprivation procedures pre- and detailed provided both ceived summary investigation under Dr. Caine’s physician of a protections. rights dural counsel, confer- parties, two assisted preceded both and that every turn from anesthesiologists procedures fellow to these referred with ences to conduct period asked between been six-month during who had hospital handling a Dr. Caine into his about complaint investigation first suspen- Dr. on After decision case. final trustees’ anesthesia board of particular the law on caught nor unaware the facts being on objected Neither sion. Caine Zinermon, nor the first tone of similar all inquisitorial case at allegedly sug- in a majority’s broad participated for and asked warrant meeting, he does it significantly has days later. five Zinermon that gestion conference second jurispru- process our changed circuit’s by- ofVII Although Article dence. post-sus- formal to a right a provided laws court the trial agree with I continue days after hearing seven within pension doc- Parratt/Hudson according complaint action, Dr. Caine’s summary Parratt, remedy. 543-44, 451 U.S. at trine, procedural due Dr. stated no 1916-17; Palmer, S.Ct. at Hudson v. adequate had an claim because he process U.S. 104 S.Ct. 82 L.Ed.2d 393 remedy by way post-termination (1984). The Court in portrayed Zinermon a state lawsuit procedures as well as “special Parratt/Hudson as a case of the order. hospital’s suspension review of the general Eldridge analysis, Matthews v. According to Ann. 73-26-27. Miss.Code post-deprivation remedies are all the changed this majority, Zinermon has due, process that is simply they because a agree I that Zinermon adds wrin- rule. only are the remedies the state could be analysis process of due kle to our current expected provide.” Zinermon, violations, must import of that case but the at 985.4 unique facts. judged be from its analyzed Zinermon the state officials’ Zinermon undertook determine conduct in admitting Burch to the mental process al- whether a due violation was hospital and concluded Parratt/Hud- leged by “voluntary commit- a man whose son did adequacy not vindicate the of a a Florida mental ment” to institution was post-deprivation remedy because the volun actually involuntary plainly he was because tary procedure commitment presented both incompetent signed at the time he the nec- high risk of of a essary papers. alleged hospi- He that the mentally person’s ill liberty, and the sub tal officials or should known of knew have stantial likelihood that pro minimal further his condition and should have utilized the safeguards cedural readily could procedurally safeguarded involuntary com- deprivation. avoided the re process. The mitment Eleventh Circuit quires a hard look at a Parratt/Hudson issues, including split over several whether claim to determine whether the state offi imprisonment a state tort suit for false conduct, cial’s under all the circumstances adequate post-deprivation rem- afforded an deprivation, of the could have been ade i.e., edy, process all the that was due under quately by proce foreseen and addressed doctrine. safeguards. could, dural If it then the case requires balancing classic Matthews Supreme Court started has stated a claim for relief. Zinermon may ordinarily the state proposition not, however, explicitly did implicitly or liberty until life or person’s not take doctrine, disavow the Parratt/Hudson nor of law. process provided it has after portend did it any alleged violation of The nature Article XIV.2 U.S. Constitution undertaken within depriva that is due before scope of an established and articulated Mat the circumstances. varies with tion regulatory automatically framework 319, 335, 96 Eldridge, U.S. thews purview falls outside the of Parratt/Hud- (1976).3 If, L.Ed.2d 18 S.Ct. employs son. Zinermon and hence re way that however, occurs in a deprivation quires case-by-case analysis depriva of the expected to have been could not the state Zinermon, O’Connor, tion at issue. See instance, a state because anticipate, for — U.S. -, dissenting, 110 S.Ct. at 995. he was not to property which actor took The constitutionally majority and I entitled, only process do not differ in the the general post-deprivation conclusion that adequate an Zinermon has re- required is well-recognized exception 2. The require- procedural safeguards; to the government’s and the pre-deprivation remedy interest, ment of a is that including of the function involved and the public safety regulation part described in I procedural require- burdens that additional — Zinermon, -, above. U.S. 110 S.Ct. at ments would entail. Id. (1990). 108 L.Ed.2d 100 4.Also, exception “Parratt is not an the specifies to Mat- 3. Matthews that three factors must be test, balancing weighed application thews but determining procedural rather an protec- in the of that test to requires particular tions the Constitution the unusual case in in a which one of private equation case: the interest the in that will be affected variables the Matthews val- —the action; pre-deprivation safeguards the official deprivation the negligible risk of an ue of —is through proce- of the preventing interest the deprivation in the kind of at issue.” used, probable Zinermon, dures and the value of additional 110 S.Ct. at 985. hardly surpris- liberty is his of deprivation to cases stricted only Florida, are the staff pre-depri- ing. In provide “[t]he to impossible truly is “it any notice of strongly, position to take persons in disagree I safeguards.” vation pro- voluntary into admissions the life of misuse breathes however, Zinermon that proce- proper that cess, the the Referring and to insure to complaint. Caine's Dr. at Zinermon, 110 S.Ct. dis- court is followed.” dure Zinermon why the reasons three “victimized” clearly is not at S.Ct. Dr. Caine Parratt/Hudson, 988. tinguished created rights “the of panoply that says by the first majority 989-90, the al- He never hospital regulations. with by the Dr. Caine provided have could state are infirm. finally regulations those leges that before full regulations They alleges that the Rather, he privileges.”5 hospital removing his stage, every at violated, purportedly deprivation were that suggest next responsible state actors the or so the dozen they find Third, “foreseeable.” oc- The violations Zinermon, enforcing them. conduct, for as actors’ state represented attorneys per- though hospital even curred “unauthorized,” because not the characterizes state by the Zinermon sides. power both “delegated were sonnel anof errone- patient as one the staff facing of risk as Caine such deprive actors to by Florida’s possible seems made deprivation ous conclusion third This privileges.” The procedures. voluntary commitment error suggesting tantamount only however, sprang Caine, Dr. risk a state during committed alleged viola- and intentional unautho- wanton from random be cannot scheme regu- controlling state inarguably “autho- tions actors state because rized ofAll scheme. lations. to effectuate rized” too broad. are Zinermon The means analogies to Zinermon these analysis the Court’s untied from be cannot state way in which First, no I see regulatory complete state that a more explicit proce- more articulated have could depriva- prevented scheme could Dr. protect safeguards dural aof scheme Thus, the addition tion. privileges that his risk specific against admitting one simple certification peers’ his because suspended would be competent to patient was officers Zinermon, See anti-competitive motives. adequate seem would himself commit regula- 987-88. at Zinermon, problem. cure the for what reasons when, how state tions in no such engage here majority They permit disciplined. may be doctors deficit is no they. can There analysis, nor only to immediate regulations. hospital’s only then after patients and safety of challenges stated, the doctor previously As provide they Alternately, investigation. their viola- peers and solely bias of his and informal investigation formal for allega- These regulations. tion those evidentiary by a full followed hearings, majority’s third disprove the naturally tions appeal to hearing possible “state based conclusion may be final A resort of trustees. board case were present in the actions actors’ judicial review.6 prompt had added). Of (emphasis unauthorized.” judi- Investigatory they were! course provision Zinermon, state’s In regulations the implementing cial bias without voluntary commitment al- unauthorized, they are not if always risk of the explicit was protections them- regulations from leged to flow un- procedure of application Walker, F.2d Holloway v. selves. against operated it high, doubtedly because every Cir.1986). Nearly 1287, 1292-93 full facul- already lacked their who people com- 50-page Dr. Caine’s of paragraph Mr. conclusion Thus, the Court’s ties. assertion that with concludes plaint of risk to a serious subjected Burch "adequacy" of this swipe at the majority’s only, 6. argument I shall assume of the sake 5. For be- gratuitous, but review Mississippi state sanc- was not majority Dr. Caine dicta, it I not discuss shall is mere 2(a) cause it hos- of the VI § to Article pursuant tioned patients. further. safety of regulations for pital particu- actors’ conduct violated a provision regulations. lar of the The ma- America, UNITED STATES of jority already only away assumed Plaintiff-Appellee, by regulations reason authorized for hospital privi- immediate of i.e., leges, safety patients. JONES, Houston Warren it Hence follows other action Defendant-Appellant. brought about that result had to be No. 89-6240 by regulations. In unauthorized Zin- Summary Calendar. ermon, contrast, by voluntary admis- patient may sion of the have been an abuse United Appeals, States Court of judgment by the staff authorized to Fifth Circuit. him, admit judgment but their exercise of specifically regula- condoned June [statutory tions. “Florida’s ... scheme] gives power state officials broad and little

guidance admitting patients.” mental

Zinermon, 110 at 988. Such is em-

phatically not the case under the conditions majority.

assumed distinguish The factors which pertain from do not Moreover, adequate case. there were prompt post-deprivation remedies avail- including able to Dr. Caine a formal hear- trustees, ing, appeal to the board Therefore, judicial accord- review.7 Parratt/Hudson, ing to Dr. Caine was deprived process. majority respectfully have erred. I dissent.

SUGGESTION FOR REHEARING EN BANC CLARK, Judge, GEE, Before Chief POLITZ, KING, JOHNSON, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS,

JONES, SMITH, DUHE, WIENER and

BARKSDALE, Judges. Circuit

BY THE COURT: A of the member Court active service having requested poll suggestion on the rehearing majority en banc and a judges having active service voted in granting enbanc, rehearing favor of IT IS ORDERED that this cause shall be reheard the Court en banc with oral argument on a date hereafter to fixed. be specify briefing The Clerk will schedule filing supplemental for the briefs. stated to which she is entitled and then He used these remedies. As we never Dallas, procedural due Myrick City F.2d claim a denial of constitutional process. 1987), may party not refuse to invoke Cir.

Case Details

Case Name: Curtis W. Caine, Jr., M.D. v. Hardy, M.D., Woodie L. Mason

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 3, 1990

Citation: 905 F.2d 858

Docket Number: 89-4470

Court Abbreviation: 5th Cir.