Summary
In Khan v. Suburban Community Hospital, 45 Ohio St.2d 39, 340 N.E.2d 398 (1976), the Appellate Court found that Dr. Khan was legally licensed to perform general surgery, and did so completely at the defendant hospital for approximately four years.
Summary of this case from Fagan v. the Stamford HospitalOpinion
No. 75-239
Decided January 14, 1976.
Nonprofit corporations — Hospitals — Board of trustees — Application of criteria for staff physician privileges — Not subject to judicial review, when.
Where the board of trustees of a private, nonprofit hospital adopts reasonable, nondiscriminatory criteria for the privilege of practicing major general surgery in the hospital, and procedural due process is followed in adopting and applying such criteria, and a staff physician is unable to qualify thereunder, a court should not substitute its evaluation and judgment of such matters for those of the board of trustees and order the granting of such specialty privileges to the physician.
APPEAL from the Court of Appeals for Cuyahoga County.
Defendant-appellant, Suburban Community Hospital, is an Ohio corporation not for profit operating a general community hospital in Warrensville Heights since 1957 with its hospital facilities, including emergency room, being available to the public and to persons admitted as patients by physicians on the hospital staff.
The hospital has 180 inpatient beds and there are some 200 physicians who practice on its active, associate, courtesy, consulting, honorary, house physician and affiliate staffs. Only active staff members have a vote in the organization and supervision of the medical staff. Medical staff officers are appointed by the board of trustees.
Appointments to the medical staff are made by the board of trustees upon submission of a written application, and with the recommendation of the medical staff executive committee, the endorsement of the administrator and the recommendation of the board of trustees medical affairs committee. Reappointments to the medical staff are made annually, as of January 1st, upon request of the medical staff member for reappointment and in conformity with the same procedures as for initial appointment.
Dr. Joseph Tomarkin, a co-founder of the hospital, had a contract under which he had the exclusive right to provide physician services for the emergency room of the hospital and to operate Suburban Community Clinic in conjunction therewith. Under the contract, Dr. Tomarkin's clinic provided "on call" physicians for the hospital's emergency room, usually numbering four or five full-time physician-employees with varying privileges in surgery, gynecology and orthopedics, the specialties most frequently used in the emergency room.
In 1969, Dr. Taj A. Khan was hired as a full-time physician-employee by the clinic. He received his pre-medical and medical education at universities in Hyderabad, India. Later, he pursued post-graduate studies in surgery and orthopedic surgery in Edinburgh, Scotland, Leicester, England, Cambridgeshire, England, Chepstow, South Wales, Lancashire, England, and Bury St. Edmunds, England. He became a member of the Royal College of Surgeons. He also trained in Canada.
Upon coming to the United States in 1967, he interned in medicine and surgery in Norwalk, Connecticut, for over one year. He passed the New York State Medical Board examination and, by way of reciprocity between New York and Ohio, became a licensed physician in Ohio without examination.
After being hired by Dr. Tomarkin as a full-time employee of the clinic, Dr. Khan, in September 1969, was appointed to the courtesy staff of the hospital with major privileges in general surgery, which also embraces major privileges in gynecology and orthopedics. His major privileges in surgery and these two fields were terminated by the board of trustees of the hospital on October 29, 1973, as a result of its adoption of a bylaw establishing new criteria for major privileges in recognized specialties. The board of trustees, on December 1, 1971, approved said bylaw, which reads as follows:
"Restricting Major Privileges in Officially* Recognized Specialties
"1. Major privileges in any officially recognized specialty shall be restricted to members of the medical staff who meet at least one of the following criteria in the specialty in which privileges are sought:
"a. Board certification in the specialty covering the privileges desired.
"b. Board eligibility in the specialty covering the privileges desired, verified by submission of an approved application to take the appropriate board examination, certification to be obtained within five years of the member's initial appointment to the staff unless additional time is granted by the medical staff executive committee.
"c. Fellowship in the American College of Physicians or Surgeons.
"d. A minimum of ten years of experience as an attending physician or surgeon in the specialty covering the privileges desired, such experience to be approved by the Medical Staff Executive Committee of Suburban Community Hospital and certified by them to the Board of Trustees of Suburban Community Hospital.
"2. All members of the medical staff who, at the time of adoption of this bylaw by the board of trustees, have been granted major privileges for the year ending December 31, 1971 in any officially recognized specialty, but fail to meet at least one of the foregoing criteria shall be notified in writing by the administrator that they must comply with one of said criteria as soon as possible, but in no event later than March 1, 1972, otherwise they will not be granted major privileges in the specialty for the ensuing year or thereafter.
"*As defined in Marquis Directory of Medical Specialists, Volume 13."
Dr. Khan, at the time of the adoption of the bylaw by the trustees did not meet any one of the criteria for having major privileges in general surgery. Prior to that time, Dr. Khan had made application for certification by the American Board of Surgery and had been advised that his education and training in India, Scotland, England and the United States was not such as to make him "board eligible" to be certified. If he desired to be certified, he would be required to undergo an extended period of progressive training in an approved residency program. Dr. Khan decided not to undertake this.
Inasmuch as Dr. Khan had only the experience since 1969 at Suburban Hospital as an attending general surgeon he could not qualify under the ten-year grandfather clause of the bylaw. His only chance of qualifying under the criteria adopted was to become a fellow of the American College of Surgeons. He made application to the college early in 1972 and the board of trustees of the hospital gave him extensions of time in which to qualify, and, in 1973, the college postponed consideration of his application until 1975. The hospital then notified him that, as of October 29, 1973, his major privileges in general surgery would terminate. However, Dr. Khan continues to have minor privileges in surgery, orthopedics and gynecology.
In October 1973, Dr. Khan filed his within action for restraining order, injunction and declaratory judgment against Suburban Community Hospital in the Court of Common Pleas of Cuyahoga County. Trial was had and the court denied such equitable relief to plaintiff and entered judgment for the hospital.
Appeal was then made to the Court of Appeals which reversed the judgment of the trial court on the basis that the denial of equitable relief to Dr. Khan was erroneous, and remanded the cause to that court.
The cause is now before this court pursuant to the allowance of the hospital's motion to certify the record.
Disbro Ellerin Co., L.P.A., Mr. Robert R. Disbro and Mr. Harry H. Taich, for appellee.
Messrs. Arter Hadden and Mr. Edward C. Crouch, for appellant.
Appellant hospital advances three propositions of law which are necessarily interrelated and interdependent and which may be refined into one fundamental issue posed to us for decision.
The question in controversy that emerges is: Where the board of trustees of a private, nonprofit hospital adopts reasonable, nondiscriminatory criteria for the privilege of practicing major general surgery in the hospital, and procedural due process is followed in adopting and applying such criteria, and a staff physician is unable to qualify thereunder, should a court substitute its evaluation of such matters for that of the board and order the granting of specialty privileges to such physician?
The Court of Common Pleas properly found the criteria established by the board of trustees to be reasonable, nondiscriminatory and to be of general application. That court said: "It was a genuine effort by the board to provide good health care for the patients of Suburban Community Hospital." The Court of Appeals very properly did not disagree with the trial court's finding that these criteria are reasonable and not discriminatory.
However, the Court of Appeals went a step further and held that:
"* * * there remains the issue as to whether the criteria are reasonable when applied to Dr. Khan who competently performed general surgery at defendant hospital for four years. We conclude they are unreasonable as applied to Dr. Kahn. The basic purpose of qualifications such as the criteria herein involved is to insure competency. The criteria herein are so designed. However, there is no better test of competency than performance itself. Dr. Khan is legally licensed to perform general surgery and did so completely at defendant hospital for approximately four years. To exclude him from further practice merely because he has not attained membership in certain medical organizations is arbitrary, capricious, and unreasonable. * * *"
By so concluding for the reasons stated, the Court of Appeals strayed into a morass of error. It is the board, not the court, which is charged with the responsibility of providing a staff of competent physicians. The board has chosen to rely on the advice of its medical staff, and the court may not surrogate for the staff in discharging this responsibility. As the court said, in Sosa v. Board of Managers of Val Verde Memorial Hospital (C.A. 5, 1971), 437 F.2d 173, 177:
"The court is charged with the narrow responsibility of assuring that the qualifications imposed by the board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere. Courts must not attempt to take on the escutcheon of Caduceus."
The author of this latter opinion apparently mixed his metaphors because there is no escutcheon involved, but only the caduceus, carried by the messenger of the Gods in Roman mythology, Mercury. Mercury's wand, and caduceus, is winged with two serpents twined about it. It symbolized Mercury's power of inducing sleep. Milton calls it the "opiate rod." Another of the attributes of Mercury was the power of healing. Hence, the caduceus is now the emblem of physicians and the United States Army Medical Corps has adopted it as its symbol. What the author of the opinion apparently meant was that judges should not be flaunting the staff of Mercury and telling physicians how to run their profession.
The great weight of case authority in the United States is that a board of trustees of a private hospital has the authority to appoint and remove members of the medical staff of the hospital and to exclude members of the medical profession in its discretion from practicing in the hospital. And, the action of hospital trustees in refusing to appoint a physician to its medical or surgical staff, or declining to renew an appointment that has expired or changing the requirements for staff privileges, is not subject to judicial review. The action of the board of trustees is final in such matters. A court may not substitute its judgment for that of the hospital trustees' judgment. See Shulman v. Washington Hospital Center (D.C. 1963), 222 F. Supp. 59; Klinge v. Lutheran Charities Assn. (E.D. Mo. 1974), 383 F. Supp. 287; Duffield v. Memorial Hospital Assn. (S.D. W. Va. 1973), 361 F. Supp. 398; Dillard v. Rowland (Mo.App. 1974), 520 S.W.2d 81; Mauer v. Highland Park Hospital Foundation (1967), 90 Ill. App.2d 409, 232 N.E.2d 776; Khoury v. Community Memorial Hospital (1962), 203 Va. 236, 123 S.E.2d 533; State, ex rel. Sams, v. Ohio Valley General Hospital Assn. (1965), 149 W. Va. 229, 140 S.E.2d 457; Edson v. Griffin Hospital (1958), 21 Conn. Sup. 55, 144 A.2d 341; Natale v. Sisters of Mercy (1952), 243 Iowa 582, 52 N.W.2d 701.
Moreover, hospital governing boards are responsible for upgrading the standards of health care to be maintained in a hospital. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, 211 N.E.2d 253, certiorari denied, 383 U.S. 946; Joiner v. Mitchell County Hospital Authority (1971), 125 Ga. App. 1, 186 S.E.2d 307, affirmed, 229 Ga. 140, 189 S.E.2d 412. See, also, cases in annotation, 51 A.L.R. 3d 981 (1972).
Finally, it is not arbitrary, capricious or unreasonable to exclude a physician from practicing a specialty in a private hospital when he has been unable to meet any of the professionally approved criteria adopted by the hospital's board of trustees for practicing the specialty.
To require Dr. Khan to meet the standards required of all physicians on the hospital staff cannot be arbitrary, capricious or unreasonable. For example, in the case of Hamilton County Hospital v. Andrews (1949), 227 Ind. 217, 84 N.E.2d 469, certiorari denied, 338 U.S. 831, the trustees of a public hospital established new criteria for practicing surgery, namely, (1) that surgeons not members of the staff prior to a particular date must be licensed; and (2) that surgeons must have had one year service as an intern in an approved hospital and three years of surgical training which met the approval of the American College of Surgeons. These criteria were held to be reasonable and not discriminatory.
It should be noted at this point that Dr. Khan's license to practice medicine has not been interfered with by the adoption of these criteria by the trustees. Dr Khan still has all the privileges at the defendant hospital of a licensed physician. He can perform minor surgery, orthopedics and gynecology, but his privileges to perform major general surgery have been postponed until, at least, he satisfies one of the criteria adopted by the hospital's board of trustees.
For these reasons, the judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is reinstated.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.