*1 D., Rutledge, Plaintiff-Appellant, H. M. J. v. St. Vincent Hospital, Corporation, an Illinois Memorial Mother Catherine, Mary Dolores, Mary al., Sister et Individ- ually Governing and as Members Board St. Hospital, Corporation, Memorial an Illinois Vincent Defendants-Appellees. No. 65-50.

Gen. Fifth District. February 1, 1966. *2 Weiner, Springfield, Broverman,

Robert and Harold Taylorville, appellant. for Hershey Taylorville, Bliss, and appellees. GOLDENHERSH, P. J.

Plaintiff filed suit the Circuit Court of Christian County, seeking equitable money damages. both relief and seeking In equitable relief, amended, the verified count as alleges defendant, he Hospital, St. Vincent Memorial profit corporation, not for other named defendants Governing Board, by-laws are members of its certain adopted were the medical staff of the defendant hospital approved Governing Board, plaintiff, adoption bylaws, at the time of the was member hospital’s of defendant active had been such years, during member for 11 tenure his active subject grievances he any medical staff never been has against any body, private public, him before on March 8, 1965, plaintiff received a letter from ad- defendants vising privileges him that his staff would not be re- newed, that the credentials committee of the medical hospital reap- staff of defendant had recommended the pointment of all members of the medical staff for the year 1965, reappoint plaintiff failure that the “irrespective” of the recommendations of the credéntials allegations complaint committee. also contains up plaintiff practice, has built a substantial the failure to great reappoint damage, him caused him de- has that the damage, privileges irreparable nial of staff will cause him prays the issuance of a without bond, enjoining notice and de- without defendants from nying the use of the facilities of defendant during suit, long pendency so of this as regulations complies with de- rules alleges hospital. fendant Plaintiff also that defendant money large received has sums of from the States America the form of Hill-Burton United funds, grant regularly Illinois, from the State governmental agencies payments receives from various assistance, recipients treatment rendered *3 beneficiary exemptions the tax and is of various available non-profit corporations. to or charitable filed a “to

Defendants motion strike dismiss” they profit a not state defendant for wherein is corporation, the is a charitable in- that by nuns, operated a Roman Catholic order of it stitution by any public hospital operated not a or maintained is agency, governmental receipt public funds not the does public hospital, plain- to of defendant a that serve make plain- not privileges staff were renewed because tiff’s regulations rules, comply failure to with the tiff’s by Governing adopted of defendant the Board standards advised “in ac- hospital, defendants have been bylaws, provisions of rules and other said cordance with regulations, been heretofore taken proceedings have Committee, Committee, the Executive the Credentials including Staff, a the Medical Joint the Conference hearing confronted with at which given opportunity against to charges him and an made which, was result of all of as refute same Governing Board recommended hospital’s Medical or in the from Staff dismissed alternative, privileges not be re- Medical that his Staff expiration 1965.” upon on March newed their annual judg- The concludes with the statement motion Governing hospital’s ment of defendant and decisions review, subject judicial the circuit court Board are not jurisdiction grant injunctive is without relief damages seeking money prayed, and the law count does justiciable not state cause action. hearing plaintiff’s

The trial court the cause for set on prayer temporary injunction for and defendants’ motion heard, No evidence was the matter was con dismiss. pleadings, court, filing sidered on the and the trial after comprehensive memorandum, entered an order wherein plaintiff’s prayer temporary injunction, it denied for a “challenging jurisdiction denied defendants’ motion appeals denying of this Court.” Plaintiff from the order application injunction. his no Since cross appeal prosecuted by defendants1, the cause is before us the sole issue of whether the trial court erred in prayer temporary injunction. bylaws,

The incorporated reference plaintiff’s complaint, provide appointments that medical staff are year, year made for one that at the end of the the Gov- erning Board, may, upon recommendations of execu- tive committee of the reappoint medical staff all medical period year. members for a further of one bylaws following contain the provision, gov- “Should the erning board wish to take the approving initiative on refusing applicant, an always it shall *4 so advise the medi- staff, reasons, cal state its and ask for recommendations. responsibility Final appointments all or cancellations governing will rest with the board.” petition injunction Whether a temporary for a granted should denied, be or largely rests in the discre court, tion of the trial Matual, O’Brien v. App2d Ill 14 173, 144 NE2d appeal, 446. question On the pre- sole

159 in whether the its sented is trial court abused discretion denying injunctive relief, the Gif Rich, 405, 47, App2d 58 Ill NE2d- unless ford v. 208 discretion, the been such abuse of order of the there has Development will not disturbed. H. K. H. trial court be Sanitary Dist., 46, Corp. Metropolitan App2d Ill 196 v. 47 answer, pro NE2d 494. defendants filed no the Since priety the order the must be deter of complaint, amended without con mined from the purport of fact in of what be averments sideration allegations motion, pleaded of defendants’ well complaint amended must taken as true. fact in the be County Island, of Rock 273 Ill 112 NE 342. Dunne v. briefs, citing comprehensive cases filed Counsel have involving question many jurisdictions, from Governing Board of select powers of the whether, staff, appoint medical members its manner, may terminate the tenure of such in and what issues, these The determination members. extent, dependent upon is, whether the to some charity, or whether institution is with, complained compliance taken action bylaws. of, provisions applicable violation merits, inquiry our before us on this case not Since determining purpose wheth- area is for sole in this ultimately prevail, plaintiff must apparent er it is so petition injunctive relief was the denial of an of discretion. abuse temporary injunction is main purpose quo can be decided until the case the status

tain actual, last, preserved quo to is the merits. The status preceded pending con which status uncontested NE Matual, App2d troversy. O’Brien v. us, the to the case before Applying this rule 2d 446. prior in uncontested status plaintiff’s actual last controversy of a member of ception was that *5 hospital’s staff, appointment defendant virtue of an admittedly year. Opposed which was for to his claim one right to continue in that status defendants’ bylaws quoted hospital, contention that of defendant above, responsibility appointment final rest for the Governing Board, staff members with the and even though provision requesting is made the recom- staff, mendations of the medical such recommenda- are, most, advisory, tions and need not be followed. We foregoing have not discussed issues and contentions purpose purporting for the to decide matter this merits, presence but demonstrate the of issues which only can be determined after trial. complaint, alleges

In his amended that only hospital Taylorville, the defendant is the reason of the denial of the use of defendant hospital’s facilities, practice his is curtailed and he will damage irreparable suffer unless the is issued. Unquestionably privileges the loss of staff has caused inconvenience, income, probably, loss but fact, itself, hold require we cannot this would enjoin refusing trial court to from defendants re appoint plaintiff hospital. the defendant bylaws provide responsibility” that “final for such Governing Board, action with rests issuance injunction would, temporary effect, of a determine for Governing the manner in which responsi Board bility discharged. is to be us,

theOn of the record we basis before are not say prepared that the refusal to issue in junction discretion, an abuse of the trial court’s County order of the Circuit Court Christian is af firmed. affirmed.

Order

MORAN, J., concurs.

EBERSPACHER, J., dissenting. alleged complaint, plaintiff further

In his verified only Taylor- hospital in hospital the the the defendant is only community facility patients ville and the available to treatment, may emergency in of of who need laboratory treatment, rea- hospital and that care and hospital the use defendant’s facil- son of the denial of of irreparable he practice curtailed will suffer ities his is Unquestionably damage injunction the is issued. unless incon- privileges the caused loss has venience, income; deprived probably, loss of as well as public plain- to be the of the who have chosen members they facility hospital patients, a select tiff’s unless choice. physician of their second “to strike and no Defendants’ motion dismiss” served legal purpose to admit purpose, than for its own other comp every allegation the amended material each and motion, court, denied the trial with Such laint.1 no cross appeal, as an answer to the veri does not stand court, by denying defendants’ complaint. The trial fied dismiss, permitted has the verified motion to strike stand, complaint are un and the facts set out to controverted, us the sole issue and the cause before is denying prayer erred in whether the trial court injunction. court, readily court

In the trial the memorandum of with reference to admitted conclusion that his different were St. Vincent would have been “private” hospi- Hospital “public” hospital, instead arbitrary recognizing tal, accepted rule law that the governing is of a board action of a 1 their motion in this Court have contended Defendants complaint properly as traversed dismiss” to “strike they special although amended, entered “their shows the. record moving purpose appearance the sole court and limited alternative, complaint dismiss the strike or in plaintiff as amended.” subject injunctive arbitrary process while the action of governing purely not; private hospital board of a memorandum, however, in the same the trial court denied “challenging jurisdiction defendants’ motion this Court.” controlling

Defendant contends that in the absence of a regulation hospital’s statute or a or own rule contrary, jurisdictions prevails the doctrine in most nonprofit to, exclusion admission from, hospital privilege staff or in the rests discretion of governing ample foreign board and cites authorities including People Repagle ex rel. v. Julia Burnham Hospital, (1897), App contention, for such *7 urges see Annotation 24 ALR2d 805. further Defendant adapted that Illinois courts have adhered the dis status, liabilities, tinctions between the private duties nonprofit hospitals public citing hospitals from those of Washingtonian Chicago the City Home v. The of Chi cago, 414, (1895), Ill 157 41 NE 893 and dander v. John son, App (1930), 89 neither of do which have to physician by with hospital exclusion of a authorities. urges Plaintiff the that defendant not immune temporary injunction from purports because it to be private hospital, arising on the of cases basis before private hospitals recipients public so-called were funds. Hospital, 389, Plaintiff cites Greisman Newcomb v. 40 NJ case, contending 192 A2d govern a 1963 in that the ing hospitals, they boards private pub whether lic, recognize must powers, that particularly their those relating members, powers to staff are in trust which are always to. be In Hospi dealt with as such. the Newcomb case, Jersey tal Supreme many New Court reviewed distinguish attempt cases which between hos pitals public hospitals and held that the Newcomb Hospital, occupied position which a similar to the defend Hospital, may ant private corporation, St. Vincent’s as a regulated public under certain circumstances be in Jersey Hospital, the New Court interest. Of Newcomb said: monopoly in

“It constitutes a virtual the area position no to claim which it and it is in functions immunity supervision public and control be- from allegedly private nature.” cause of Grubb, F2d held that In Eaton v. court ordinarily present in the case of a charitable factors not treating Me- James hospital were basis Walker originally by philanthropic citi- Hospital, built morial community, zen, serving of the white adult as 75% hospital; provisions bound and was Amendment to refrain from discrimination Fourteenth membership facilities and treatment admission segregated discriminatory racially basis. One govern- the state and federal those factors was both granted capital construction sub- ment had least two including grant De- sidies, federal in 1944 under the including any Act, Hill-Burton Public but not fense Works funds; had a tax factor was another status, was, hospi- factor exempt and a third county city and for the care of funds tal had received patients. welfare private hospital program pro- in the

Participation of a Act, 1041, (1946) as 60 Stat Hill-Burton vided *8 subjects seq., 291 it to an elab- sec et 42 USCA amended governmental regulations, pattern of and intricate orate federal, deprives purely pri- it its and of and both state public impresses upon a interest to aspect, and it as vate instrumentality government. of v. Simkins it an render (CA 4th, Hospital, 959 Memorial 323 F2d H. Cone Moses 793). Court, case the 84 Ct In that denied S cert 1963 page said: overriding purpose the Hill- of “The basic permit develop pro- the states to was to Act Burton

164 grams provide that would of construction adequate people.” service to all their pur- had Federal cases to do with While both these Negro arbitrarily denying ported private hospitals doc- general they facilities, proposition tors hold that staff as arbitrary governing body purported of a action of bylaws, private hospital, regardless policies, of its courts, physi- protect will be reviewed in order to public. cians well as the It is as obvious members protection of the Caucasian race are entitled to the same Negroes, purported private in the law as are and if hos- pitals public subject attain to to in- sufficient status be junctive processes prevent arbitrary discrimination against Negro Negro they doctors, patients, like- their public subject wise attain sufficient to in- status be junctive process prevent arbitrary discrimination against patients. Caucasian their doctors and allegations complaint, uncontroverted, true, taken are Hospital as that Defendant St. Vincent’s only hospital facility is the community, in the has en- joyed exempt status, tax and has recipient been the of governmental federal, funds; state and local it has held public itself facility out to the publie as a on which the community dependent become have for hos- pital conclude, I may facilities. therefore that while it purposes opera- charitable of its tion has public aspect, taken on purposes such that for determining arbitrarily governing how board can privileges, act it has the status of public hospital, subject injunctive and is to the same 2 Defendant has received federal funds under the Hill-Burton $861,392.28, grant inAct amount $210,667.72, state during year ending the fiscal June 1964 received from governmental agencies payments recipients as as payment sistance out medical fund the State $136,160.64. Illinois the sum of *9 against any arbitrary

process prevent discrimination tax-support- patients purely public, doctor his as is a and By participation in the Hill-Burton ed institution. its plan program it to a of State alone committed itself adequate people. providing all of the facilities to pub- It to hold itself out should not allowed public support patronage and purposes lic for and of part eligibility public funds, for as a ques- say plan, those who and then be heard to state charity exercised, tion that it is a the discretion discretion, therefore immune from and is with absolute injunctive processes. alleged, is accept, that must also as is

We observed, obeyed complied qualified, with all has legally regulations prescribed lawful to cover rules hospital; physicians in that their use of the the conduct the Medical Staff of the credentials committee of reappointment all members recommended including irrespec- staff, plaintiff, that the medical governing pur- recommendation the board tive such privileges portedly plaintiff; terminated any plaintiff has never been delivered writ- likewise that him, any against charges nor been confronted ten accusing wrongdoing, purposes of person him of determining discretion in whether there an abuse of injunction, prayer in the his being joined in this absence of issue cause. majority opinion appears based on the to be

While temporary injunction principal the issuance of court, largely rec discretion of the trial rests ognizes temporary injunction purpose quo the status until the case can be decided maintain merits, citing Matual, App2d O’Brien v. gives language heed 144 NE2d little to other case, the O’Brien in the state of the assumes pleadings in this room for broad discre- case there was *10 Applying concerning tion. the rule maintenance quo, only plaintiff’s status here we not find the last controversy actual prior uncontested status be hospital staff, that of a member of defendant virtue admittedly appointment year, of an which was for one professional but also in wherein status his career was jeopardized, enjoyed confidence, not public where he as well profes- as the confidence members of his sion who on the medical staff of the recommended reappointment, his and in a status which entitled that segment patients who were his to the use hospital facility, and treatment therein from the physician surgeon they placed had which their confidence.

In the O’Brien page case court at said 187: temporary injunction

“A should not refused be or merely may dissolved because the court not be ab- solutely certain the or counterclaimant has right he claims.” continuing said: counterclaimant, however,

“the is not required upon application such an to make out a him, case events, which would entitle at all to relief hearing; only at prima the final he need facie show purpose question this that he raises a fair as to right claims, the existence of the present he circum- stances which probably lead to a belief that he will relief, be proof allega- entitled to if the sustains his tions, satisfy the court that matters should be preserved present in their quo state status until disposed merits; the cause can be of on its one im- portant upon application consideration an for a tem- injunction porary is the relative inconvenience to be respective parties application caused if the (Citing cases.) denied.” allowed or

167 402, Lewis, App In the case of Fishwick v. following language quoted page taken the court 8th, Levis, City v. CCA from the case of of Newton Fed 715: maintaining preliminary “. . A. . ques- quo may properly whenever the issue status ultimately determined or fact to be tions of law injury grave and difficult if the a suit are great immediate, moving party certain and will be *11 denied, to while the loss or inconvenience if it is party comparatively opposing will be small insignificant granted.” if it is Tug Barge Towing City & v. Licensed Co. In Twin America, App 48 Ill Protective Ass’n of and Pilots’ men’s 749, 1, 197 the court 2d NE2d said: seeking required a tem- “It is not that injunction that is certain to porary make out case hearing, enough if there is prevail on final it is shown rights question the existence of the a fair as to present claimed, satisfied their Court is so hearing preserved until final state should cases.) (Citing disposition:” Surgeons, Virgin College v. American In the case of 414, 422, 352, page the court App2d 192 NE2d 993, in 42 Law Review quoted an article Harvard from Chaffee, The Internal (1930). Affairs Asso 998-1008 as follows: ciations the ‘interest of substance’ which accrues

“Whether profession of a association is called to a member right’ merely right’, the ‘mem- ‘property ‘contract growing association’, there is a relation to the ber’s wrongful expulsion voluntary from a awareness has such serious effect professional association ability successfully professional on the man to pursue judicially pro- his livelihood is a and that tectable interest.” proceeded quote

and in page that case from Matual, supra, O’Brien v. as follows: equity ap- “But a court of will interfere where it peals body ... or the member or subordinate has rudimentary rights not been afforded those which give opportunity against will him or it an defend any charges made, including reasonable notice there- of, opportunity present, an to be to confront and accusers, defense, examine his or cross to make a any and to endeavor to refute evidence adduced in charges.” support of the

I Hospital believe that St. Vincent’s has become suf ficiently impressed public aspect princi with a ples Dayan enunciated in Tp. Hospital, v. River Wood App2d 263, Ill applicable. There, 152 NE2d are brought enjoin suit was board of a denying from doctor the use of the facilities hospital. He secured a re straining from him hospi use of the *12 hearing pending charges tal before the board on made against him; hearing duly such was held and the board formally thereupon deny acted to appoint doctor’s staff; by ment appropriate to the medical order the tem porary injunction permitted was to continue in force pending appeal case, in the case. In that the ulti holding mate of the court was had been hearing fully afforded a that was in accord with the process, principles of due and the decision of the trial joined, after amply court made the issues were sup findings ported the evidence. The of the chancellor finding right practice that the included in a hearing may only accord- be terminated after notice and process the doc- ance with due of law. In answer employed procedure appoint- tor’s contention that a .(generally ment, whereby of the members active older, line practitioners), held the life more established younger their recom- doctors virtue of the fact that required appointment, the court mendation was page opinion their 269 of said: required ap-

“. . . . the action of the staff proval Hospital equity a court of the Board and operative.” supplied.) (Emphasis it become before allegations material the verified amended com- sufficiently uncontroverted, posi- plaint, are definite and tive, part discretion on the as to leave no room for justified court, the factual situation trial as to whether injunction, particularly in view of the issuance them, opportunity dispute fact that defendant had an herein enun- keeping principles with the of law and in ciated, I would reverse and remand.