*3 RONEY, GEWIN Cirсuit Judges. Judge: RONEY, Circuit originated complaint This case on the Philip of Dr. that he had S. surgical deprived privileges County Hospital Barbour without process of had law that no against been made him and that no hear- ing complaint had been held. After the filed, was pital the medical staff of the hos- hearing held a to consider act Woodbury’s upon qualifications to Dr. surgical surgery pro- handle and conduct Amending hospital. cedures in the their allege hearing answers to that such had place, taken a sum- defendants moved for mary judgment.
* Clark, Supreme (Ret.), Tom sitting Honorable Associate Justice United States Court designation. against him in the administrative made a tran- complete Upon review hearing. any event, wе think hearing, ex- affidavits script of the argument misses its mark as to Dr. found that
hibits,
court
district
rights
Woodbury’s
posture
require-
in accord
It misconceives his substantive
process
case.
procedural due
ments of
rights
rights
as balanced
not acted
had
authorities
governing authority
hospital.
unreasonably
arbitrarily,
capriciously
or
refusing
reappoint
having become a member
Once
Finding
there
surgical
surgical
Dr. Wood-
genuine
material
issue as to
bury
reappointment
until
had
matters,
court
district
fact on these
governing
authorities
determined
rights had been
held that no substantive
hearing conforming to the min
after a
*4
granted summary judgment
violated and
procedural
requirements
of
due
imum
hospital
We
authorities.
in favor of the
process
not
that he did
meet the reason
affirm.
hospital.
of
able standards
denied
he was
contends that
Plaintiff
resulting from the
must
decision
process
procedural
due
and substantive
by
be untainted
irrelevant considerations
hearing and
in both the administrative
by
to
supported
and
sufficient
evidence
below,
that
there are
in the court
arbitrariness,
capriciousness
free it from
is
he
in this case which
issues of fact
extent
or unreasonableness.
This is the
litigate.
entitled to
Woodbury
to
Dr.
entitled to
which
is
Woodbury’s
argued
at-
that Dr.
It
is
process
substantive due
under the United
torney
mem-
question
to
not allowed
Foster v.
States Constitution.
Mobile
hospital
of
Board,
medical staff
County
bers of the
Hospital
398 F.2d
interrogatories
by dеposition
(5th
1968).
and written
Cir.
permitted
not
to cross-
and that he was
A
constitutional
doctor has no
time
them at
examine or
public
practice
in
to
medicine
a
hearing.
de-
the administrative
A
of
Galveston,
Hayman
hospital.
U.S.
v.
this violated
termination of whether
363,
414,
(1927).
tion of such matters
cedures
Board,
imaginable
Hospital
It
is the
Board.
situation.”
Cafeteria
court,
charged
re-
Union,
which is
Restaurant
Mc
Workers
etc.
competent
providing
Elroy,
sponsibility
367 U.S.
has
The Board
of doctors.
L.Ed.2d 1230
see
Bell
also
rely
its
Burson,
on the advice
chosen
Staff,
cannot
the court
29 L.Ed.2d
Medical
90 [1971].
executing
surrogate
the Staff
for
“Expressing
it
does
its ultimate
responsibility.
Human lives
analysis
respect enforced
lаw
governing
must
stake,
board
and the
feeling
just
treatment which
given
so
in its selection
be
discretion
through
has been evolved
centuries
in the com-
confidence
it can have
Anglo-American
history
constitutional
petence
commitment
and moral
civilization,
process’
‘due
cannot
professional
staff. The evaluation
imprisoned
within
treacherous
left
proficiency
best
of doctors
Representing
limits of
formula.
*5
peers,
expertise
specialized
of their
the
profound
a
attitude
of fairness
be
judicial
only
subject
sur-
limited
to
man,
par
man
tween
and
and more
charged with
court
veillance. The
ticularly between
individual
and
the
assuring
responsibility
of
the narrow
government,
process’
сom
‘due
imposed
the
qualifications
that
pounded
history,
reason,
past
of
op-
reasonably
related to
are
Board
decisions,
of
course
confi
stout
fairly ad-
hospital and
of the
eration
strength
dence in
of
demo
short,
long as staff
so
ministered.
profess.”
faith which we
Joint
cratic
fair-
administered with
are
selections
Refuge
Anti-Fascist
v. Mc
Committee
geared
compatible
ness,
by a rationale
Grath,
123, 162-163,
71 S.Ct.
U.S.
responsibility,
and un-
with
624, 643,
(Mr.
(1951)
95 L.Ed.
irrelevant
consider-
encumbered with
concurring opin
Justice Frankfurter’s
ations,
interfere.
a court should
ion).
attempt
to
on
must
take
Courts
generalization,
“Therefore,
it can
aas
at 177.
Id.
of Caduceus.”
escutcheon
process
that
be said
due
embodies
setting
сonsider
that
It is within this
we
differing
play,
of
fair
which
rules
Woodbury’s appeal.
Dr.
through
asso-
years,
have become
differing types
proceed-
ciated with
Due Process
I. Procedural
ings.
re-
Whether
the Constitution
de-
plaintiff
that he was
The
contends
right
quires
particular
that a
obtain
(1)
process
procedural
in that
nied
due
specific
depends upon
proceeding
in a
charges
insuffi-
the notice of the
was
complexity
nature
of factors.
The
a
cient, (2) the
of cross-examination
alleged right
involved,
na-
denied,
(3)
medical
was
possi-
proceeding,
ture of
and the
was biased.
proceeding,
all
that
are
ble burden on
light
opinions
Considered
taken
must
considerations which
be
Supreme
as to
Court
Larche,
the United States
su-
into account.” Hannah
process,
requirements
it
due
p.
pra,
p.
at
arguments
apparent
fail.
these
must
“
concept.
charge.
process’
Sufficiency
‘Due
is an elusive
notice
A.
undefinable,
charged
writing
Its exact boundaries
are
Dr.
was
according
spe-
judgment
competence
to
content
laсk of
varies
with
surgical pro-
the word. The
staff,
of the medical
surgery
members
perform
to
including plaintiff,
free to
noted:
were
specifications were
cedures. Four
questions con-
surgical
lack make comments or ask
judgment,
(1)
(2)
lack of
cerning
particular
performing
each
case as reflected
sur-
assistant while
assisting
no in the
records. Under these cir-
gery,
had
(3)
another who
training
cumstances,
one
cross-
(4)
there was no
surgery privileges, and
attorney,
plaintiff’s
al-
examine. The
speci-
background.
first three
though present,
permitted to
was not
specific
names of
contained
fications
present.
the other doctors
those
hospital records of
cases and the
However,
рlaintiff
allowed to ask
was
plaintiff.
cases
furnished
were
privilege
questions and exercised that
plaintiff requested
nature
the exact
freely.
attorney
plain-
Since the
and the
case. The Medical
of the fault
each
will,
tiff could confer at
see
due
we
he felt
Chief of
refused because
Staff
process
per-
violation
the refusal to
competent
discover
doctor could
attorney
questions.
mit the
ask
further that
from
records
setting,
in a
familiar
with
must
read
context
the records
discussing
people,
familiar
subject.
a familiar
a unit.
expertise
acquaintance
His
thoroughly
with
facts
each case
with wheth
concerned
We
qualified him
comply
to be effective in
given
discus-
er sufficient notice was
sion with his fellow doctors.
process
of due
minimum standards
charges
sur
would
and not whether the
scrutiny applied to
criminal
vive the
have held that
We
cross-exami
Burson, supra, 402
every
part
Bell
nation
ing
need not be
hear
indictment.
satisfy
process.
notice
in order to
Dix
U.S. at
S.Ct. 1586.
enough
Education,
permit
specific
on v.
Alabama State Board of
plaintiff
to answer the
Whether
*6
required
upon
time to.
depends
additional
it
him. He
offered
is
the
was
circum
the
respond
at
discussed
stances.
charges
to the matters
Because of the
of the
nature
hearing
We
(professional competence)
the
declined.
but
offer was
pro
Woodbury,
hearing (informal
as a
the nature
the
dis
сonclude
of
sufficiently
person,
noti
cussion of medical
nesses)
fessional
was
records with no wit
medical
upon
the
fied of
which
cross-examination was
re
the basis
considering
competence for
staff
his
was
quired in this case.
surgical privileges.
plain-
C. Bias medical
The
Right
It
B.
cross-examination.
tiff contends that the medical staff was
his
plaintiff’s positiоn
as
recognized
that inasmuch
biased. This court has
being
surgical judgment
considered
this,
in a situation such
the
tribunal
by
v/ho
Ferguson
medical staff
impartial.
members
the
should be
as,
v. Thom-
they
hospital,
sub-
practiced
must
in
430 F.2d
How-
own ever,
any
of their
mit themselves
the test
the record is bare of
indication
surgical
effect,
judgment.
would
he
that the
in
medical staff was
fact biased
try
judgеs.
by any
do not believe
proper
We
matter
relevant to the
necessity.
Woodbury’s
Unit-
quali-
this is a constitutional
of Dr.
consideration
422,
409,
Morgan,
allegations
ed
313 U.S.
States v.
fications. There
no
were
(1941).
999,
complaint
85 L.Ed.
in
bias
and there were
opposition
affidavits filed in
mo-
judgment.
summary
for
tion
hearing
informal
an
The
by
medical staff
discussion
suggestion
against
only
of bias
Thе
specified in the
cases
a letter
plaintiff.
contained
record
no witnesses
There were
any
plaintiff’s
hearing.
counsel to
Chief
presented
did
from
at
Nor
asking
an
hoc
for
ad
testify
any
the medical
sense
of the doctors
appointed.1
may
constitutionally
committee to be
The effect
ments
refused
given
to be
gations
this letter as tо these alle-
if
upon ‘any
the refusal is based
rea
very
basis,
limited.
It is not
within
professional
sonable
such as the
specified
56,
F.R.
qualifications
the material
Rule
phy
ethical
of the
Civ.P.,
good
for
to be considered on a motion
sicians or the
pub
common
of the
summary
allega-
judgment.
so, the
lic
Hospital,’
Even
and the
Foster v. Mobile
County
tions of
Hospitаl Board,
bias are insufficient
to raise
supra,
F.
fact
if
Admittedly,
even
contained in
2d at 230.
standards such
previ-
affidavit. The
qualifications
consideration on a
as ‘character
and stand
ing’
plaintiff’s qualifica-
very
ous
general,
occasion of the
but this court
recognizes
tions would not demonstrate such bias
personal
that in the area of
process.
as to constitute a denial of due
fitness
privileges
for medical staff
Morgan, supra,
precise
United States v.
313 U.S.
standards are difficult if not
421,
999;
p.
Goldberg
impossible
S.Ct.
to articulate. North Brow
Kelly,
254,
1011,
Hospital
397 U.S.
ard
Mizell, supra
S.Ct.
District v.
[Fla.,
1],
L.Ed.2d 287
Richardson
subjectives
148 So.2d
Perales,
389, 91
minutely
simply
selection
cannot be
L.Ed.2d 842
governing
[1971].
codified. The
board of a
given great
must therefore be
reading
transcript
A
prescribing
necessary
latitude
qualifications
hearing
any
fails to indicate
bias
potential applicants]
plaintiff
the medical staff. To
County
Foster
Hospital
v. Mobile
hearing
contrary,
transcript
re-
Board, supra; North Broward Hos
veals that the
was held in a de-
pital
Mizell, supra;
District v.
Suss
high degree
corous manner
Association,
man
Hospital
v. Overlook
professionalism.
supra
N.J.Super. 418,
[95
231 A.2d
Contra,
People’s
389].
Milford v.
II. Substantive Due Process
Community Hospital
Authority,
questions
here are whether the
(p.
Mich.
by may getting the Credentials Committеe of the be uneven treatment because appli- Medical Staff to evaluate staff other members of the medical staff are gives cants recently has are reasonable. This court support better than he his little to appoint- argument. indicated that staff constitutional Where there * * jn a(3djtion above, 1. to the we in the Credential Cоmmittee minutes of your you January 7, call to attention that have set 1970. hearing prejudice gen- Medical this before the entire the view of bias and January point erally by Staff, Staff we that on out shown the Medical we re- 12, 1970, meeting, quest at a Medical Staff the that an ad hoc committee of dis- priv- doctors, Medical Staff voted to withhold the interested nоt affiliated Bar- with ileges upon County Hospital, of Dr. the based bour be selected for the * vague general allegations purpose conducting set forth this 846 the purposeful discrimi- next to record court should look is no intentional or agen- developed its as
nation, reasonable on before the academic standard a cy faith, who to good one determine whether there was applied in the face is agency been the substantial evidence before has the standard fails to meet taken, support protection equal to the action with denied constitutional judge to the constitution- just likewise care taken have not others because ality v. of the school’sаction on the basis Snowden been held accountable. agen- the 88 of cy, facts that were before the Hughes, 64 321 U.S. Boles, by logic applied Oyler the it. (1944); v. 368 on L.Ed. 497 Cir., supra 446 Branch, Johnson [4 L.Ed.2d v. 7 Hornig, procedures 89 F.2d If fol- F.2d 177]. Moss v. 1963); Sipes, lowed were correct evi- (2d v. and substantial Stanturf Cir. 1964); appears support dence action, (8th Delia v. Court Board’s F.2d Cir. Co., ordinarily Cuyahоga that ends mat- of Common Pleas 1969); (6th ter.” 430 F.2d Davis F.2d Georgia Cir. Education, Board State Although originally when filed 1969); Zayre (5th F.2d Cir. complaint required a would have remand Marietta, Ga. v. compliance to the for authorities pro- with the minimum standards for requirements process,
cedural due those Judgment disposition met Summary were before final III. case. argues plaintiff thаt duty provide The defendants had “a have conducted district court should patients County Hospital of Barbour discovery. full full Again trial” scale with professional competent with medical try the medical staff he would practice major surgery services. The This misconceives district court. highly specialized is a field and rec- scope judicial in cases review limited ognized as a delicate art. citizens Managers Board of of this kind. Sosa v. County of Barbour have entitled to Verde, supra. in Fer As stated of Val defendants, charged who have analogous guson Thomas, supra, in an responsibility, make the sensi- employment school case: judgments tive critical hearings in cases of “Federal Court competence medical type first limited in the should be having judg- Once determined or of whether instance to supported ment was substantial evi- rights have not federal been violated using proper dence and was made teria, cri- procedures the aca followed satisfactory hearing, after a on agency plain processing demiс basis, irrelevant, a rational and without grievance. procedural If def tiff’s discriminatory influences, arbitrary should, at appears, icit the matter work of the court came to end. point, institu remanded nothing try There was further compliance tion with minimum *8 entry summary entirely judgment academically supplementary or federal proper. This created standards. should Affirmed. first be that the matter can done so adjudication ripe made for court ON PETITION FOR REHEAR- school authorities themselves. ING AND PETITION FOR Stevenson Board Education EN BANC REHEARING Cir., County, supra Wheeler [5 also, v. Bash French 1154]. See PER CURIAM: ful, F.2d 182 Rehearing If federal has violated Petition for denied Judge followed, panel procedures and no then member of this nor regular active service on the Court in having polled
requested that the Court be (Rule rehearing banc, 35 Federal
on en Procedure; Appellate Local Rules of 12) Petition for Rule Fifth Circuit
Rehearing En Banc is denied. Plaintiff-Appellee, MARK,
Gordon S. CO., Inc., Defendant- &
McDONNELL Appellant.
No. 18884. Appeals,
United States Court
Seventh Circuit.
Aug.