The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0436-23
MARK E. SOLOMON, D.P.M.,
Plaintiff-Respondent,
v.
MEDICAL EXECUTIVE
COMMITTEE OF MORRISTOWN
MEDICAL CENTER, and
MEDICAL-DENTAL STAFF
OF MORRISTOWN MEDICAL
CENTER,
Defendants-Appellants.
_____________________________
Argued March 5, 2024 – Decided August 8, 2024
Before Judges Haas, Natali and Puglisi.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Chancery Division, Morris
County, Docket No. C-000076-22.
Jacob S. Perskie argued the cause for appellant Medical
Executive Committee of Morristown Medical Center
(Fox Rothschild LLP, attorneys; Heather R. Boshak and
Jacob S. Perskie, of counsel and on the briefs).
The Nan Gallagher Law Group LLC, attorneys for
appellant Medical-Dental Staff of Morristown Medical
Center, have not filed a brief.
Joseph B. Fiorenzo argued the cause for respondent
(Sills Cummis & Gross PC, attorneys; Joseph B.
Fiorenzo, of counsel and on the brief; Stephen M.
Klein, on the brief).
James H. Leckie argued for amicus curiae New Jersey
Hospital Association (O'Toole Scrivo, LLC, attorneys;
James J. DiGiulio, of counsel and on the brief; James
H. Leckie, on the brief).
Buttaci Leardi & Werner LLC, attorneys for amicus
curiae New Jersey Podiatric Medical Society (John W.
Leardi, on the brief).
PER CURIAM
We granted leave to appeal to address the propriety of the court's
intervention in the internal administrative proceedings commenced by
defendants Medical Executive Committee of Morristown Medical Center (MEC)
and Medical-Dental Staff of Morristown Medical Center (MDS) (collectively
defendants) to address the suspension of plaintiff Mark E. Solomon's, D.P.M.,
clinical privileges. Specifically, defendants challenge the court's August 28,
2023 order denying their reconsideration application of a July 24, 2023 order
that granted, in part, plaintiff's order to show cause and directed the hospital to
use the burden of proof announced in Nanavati v. Burdette Tomlin Mem'l Hosp.,
A-0436-23
2
107 N.J. 240 (1987),1 rather than the standard detailed in defendants' bylaws.
Defendants argue the court erred both in intervening prior to the conclusion of
the hearing, and in ordering the use of the Nanavati standard. We agree with
defendants and reverse.
I.
Dr. Solomon is a podiatrist with clinical privileges at Morristown Medical
Center (MMC) and Overlook Medical Center (OMC). According to Article XI,
section (C)(1) of MMC's bylaws, the President of the Medical Staff, the Chief
Medical Officer (CMO), and the Administrator or the Board Chair each have the
authority to "suspend or restrict all or any portion of an individual's clinical
privileges whenever the failure to take such action may result in imminent
danger to the health and/or safety of any individual or may interfere with the
orderly operation of the Hospital" or "whenever the conduct of any individual
with clinical privileges is such that it causes harm, is detrimental to, or is likely
to impair the confidence of patients in the reputation or standing of Atlantic
1
In Nanavati, the court considered "the appropriate standard of review of the
decision by a hospital to terminate a physician's staff privileges" and determined
"hospital authorities should present concrete evidence of specific instances of
misbehavior" and that such "prospective disharmony will probably have an
adverse impact on patient care." 107 N.J. at 248, 254.
A-0436-23
3
Health System, the Hospital, the Medical Staff, Board of Trustees or the
communities they serve."
Further, the bylaws characterize a "[p]recautionary suspension as "an
interim step in the [p]rofessional [r]eview activity, but it is not a complete
[p]rofessional [r]eview action in and of itself," and "[i]t shall not imply any final
finding of responsibility for the situation that caused the suspension."
Additionally, Article XII of defendants' bylaws addresses the hearing and
appeals process applicable "whenever the [MEC] makes an unfavorable
recommendation" with respect to, among other things, the suspension of clinical
privileges. Section (F)(1) provides the "order of presentation":
a. The [MEC] or Board shall first present evidence in
support of its recommendation and shall bear the
burden of demonstrating that its recommendation is
reasonable and warranted.
b. Thereafter, consistent with the burden on the
individual to demonstrate that he or she satisfies, on
a continuing basis, all criteria for appointment
and/or clinical privileges, as appropriate, the
Hearing Panel shall recommend in favor of the
[MEC] unless it finds that the individual who
requested the hearing has proved, by clear and
convincing evidence, that the recommendation that
prompted the hearing was arbitrary, capricious, or
not supported by credible evidence, or was contrary
to law.
A-0436-23
4
In December 2021, Drs. Sharon Root, D.P.M., and Lewis Rubinson, M.D.,
plaintiff's Department Chair and CMO, respectively, issued plaintiff a "letter of
warning" which alleged, among other things, that plaintiff did not have medical
privileges for procedures he performed on two patients. Specifically, the letter
referenced a case in which plaintiff performed an "incision and drainage of the
tibia or tibial osteotomy," and a second case in which he conducted an "osseous
procedure[] to the tibia or fibula above the level of the ankle."
The letter notified plaintiff his "cases will be subject to review to ensure
[he is] practicing within the privileges granted" at MMC, and that if it was
"determined that [he was] acting outside the scope of [his] privileges, the matter
will be escalated to the [MEC] for review and action." The letter of warning
also included other concerns regarding plaintiff's professional conduct, namely,
"sending deprecating and insulting text messages followed by accosting [his]
Department Chair at a social gathering after [he was] told [he] could not be the
primary surgeon in a revision procedure."
Plaintiff responded in writing, disputing the charges in the warning letter
and subsequently met with Dr. Rubinson, Dr. Wittig (Chair of Orthopedic
Surgery), Dr. Daniel Hennessy (Vice Chair of Podiatry), Dr. John O'Grady
(President of Hospital Medical-Dental Staff), and Dr. Mark Rieger (plaintiff’s
A-0436-23
5
practice partner). Following that meeting, Dr. O'Grady sent two letters to
plaintiff, the second of which modified the first and set a deadline for plaintiff
to complete certain criteria.
In the second letter, dated March 31, 2022, Dr. O'Grady confirmed
plaintiff agreed to: (1) participate in one-on-one sessions with a professional
wellness expert at least three times per month for at least six months; (2)
formally acknowledge that MMC defines his scope of practice through its
credentialing and privileging process, and that final adjudication and
determination of his privileges would be determined by the Chair of Podiatry
and other MMC leadership; and (3) provide a written apology to Dr. Root for
admitted contentious behavior. The letter indicated plaintiff had five days, until
April 5, 2022, to submit "documentation regarding the above issues."
In response, plaintiff's partner, Dr. Reiger, sent Dr. Rubinson a text
message with a draft of plaintiff's letter and inquired if it was satisfactory. The
draft letter stated plaintiff: (1) identified a wellness professional to administer a
customized professional treatment plan, (2) acknowledged he "reviewed the
MMC bylaws and rules and regulations, as well as the [p]odiatry department
bylaws and [his] current MMC privileges sheet"; understood he would be "held
to the same standards of providing care within [his] scope of practice
A-0436-23
6
commensurate with other practicing members of [the] department with
equivalent rights"; and agreed to have an orthopedic partner "present whenever
appropriate," and (3) sent Dr. Root an apology letter. Dr. Rubinson responded,
"I can't speak to the response without getting an official response."
On April 13, 2022, Dr. O'Grady sent plaintiff a letter in which Dr. O'Grady
stated despite "collegial efforts" and a letter of warning, plaintiff remained "non-
compliant with the requirements set forth in the March 31[] letter and ignored
[his] physician leaders." Dr. O'Grady also stated, "the matter was referred to
the [MEC] for further review and determination," and that on April 12, 2022,
the MEC met and determined (1) plaintiff's failure to acknowledge the scope of
his privileges could result in imminent danger to patients and could interfere
with the orderly operations of the hospital, and (2) plaintiff's "unprofessional
conduct" was violative of the MMC's code of conduct. Dr. O'Grady informed
plaintiff the MEC suspended plaintiff's clinical privileges, initiated further
investigation, and informed plaintiff of his right to be heard during the process.
In May 2022, the MEC issued a report following its investigation and
interview of plaintiff in which the MEC concluded plaintiff "could not
affirmatively acknowledge the basic principles as set forth in paragraph (2) of
the March 31[] letter," and that plaintiff "remained incredulous in his comments
A-0436-23
7
and responses and continued to demonstrate a lack of respect or deference to
authority." The MEC kept plaintiff's suspension in place and stated "in order
for reinstatement to be considered" plaintiff must:
1. Confirm and acknowledge[] in writing to the MEC
that MMC defines his scope of practice through it[s]
credentialing and privileging process and that the
ultimate adjudication and determination of his
privileges are determined by the Chair of Podiatry and,
when relevant, with the input of the Chair of
Orthopedics and other MMC leadership (Medical Staff
President, Chair Credentials, and CMO)[.]
2. Submit for an outside evaluation by a
specialist/provider . . . to determine his fitness to
practice in the hospital and department settings and his
ability to demonstrate recognition for authority and
chain of command and appropriate professionalism of
a Medical Staff Member . . . .
3. . . . demonstrate his compliance with paragraph (1)
of the March 31[] letter and what the current status is
to date . . . .
4. Once items 1 through 3 above are satisfied . . . it will
be within the exclusive discretion of the MEC to
consider concluding the suspension and reinstating
[plaintiff's] privileges.
Dr. O'Grady informed plaintiff of MEC's report and decision, and plaintiff
requested a hearing, which he was entitled to under defendants' bylaws.
Thereafter, plaintiff filed a verified complaint and order to show cause
seeking judicial review of his suspension, a preliminary injunction reinstating
A-0436-23
8
his clinical privileges pending his hearing, and damages. In support, plaintiff
included two expert reports which, according to plaintiff, opined he acted within
the scope of his privileges in performing the two procedures in question. 2 In a
May 31, 2022 order, the court found plaintiff did not demonstrate irreparable
harm, a likelihood of success on the merits, or exhaust his administrative
remedies, and denied plaintiff's application.
In September 2022, Dr. O'Grady informed plaintiff the MEC convened to
review his response to the May 2022 report and considered "all information
available," including a psychological evaluation,3 to "make a final
recommendation regarding [plaintiff's] privileges. 4 The MEC recommended
plaintiff's privileges be reinstated "subject to a Focused Professional Practice
Evaluation (FPPE)," which is a "restriction of [plaintiff's] privileges ," thus
entitling him to a fair hearing. 5 After unsuccessful attempts to amicably resolve
2
The expert reports are not included in the record before us.
3
The psychological evaluation is not included in the record before us.
4
The record is unclear as to what plaintiff submitted to the MEC in response to
the May 2022 report.
5
The parties did not include the specifics of the proposed FPPE. Defendants'
bylaws, however, define a FPPE as "a process whereby the Medical Staff
evaluates the privilege-specific competency and professional performance of a
A-0436-23
9
the matter, plaintiff requested a hearing in February 2023, and defendants "held"
the MEC's recommendation to reinstate plaintiff's privileges pending the
hearing. As such, plaintiff's privileges remained suspended.
Prior to the hearing, plaintiff's counsel submitted a motion with respect to
the burden of proof in the hearing, which defendants opposed. Specifically,
plaintiff contended the burden of proof outlined in the bylaws improperly shifted
the burden for him to establish by clear and convincing evidence defendants'
actions were arbitrary, capricious, or not supported by credible evidence, a
standard plaintiff argued "would be nearly impossible to meet." Plaintiff also
contended defendants should have to "prove its case by a preponderance of the
evidence," rather than merely demonstrating its recommendation was reasonable
and warranted.
In April 2023, Matthew R. Streger, the presiding officer of plaintiff's
hearing, issued a decision on the motion in which he stated he did "not hold the
authority to establish the burden of proof in this matter," and denied plaintiff's
motion. Specifically, Streger stated plaintiff's application "would involve
overriding a clear and unambiguous provision in the bylaws," and the cases
practitioner . . . when a question arises regarding a currently privileged
practitioner's ability to provide safe, high[-]quality care."
A-0436-23
10
plaintiff relied on were not persuasive to the contrary. Streger explained "the
MEC has the initial burden of demonstrating that the proposed action against
Dr. Solomon is reasonable and warranted," and plaintiff then has the burden to
"demonstrate, by clear and convincing evidence, that the proposed action is
arbitrary, capricious, not supported by the credible evidence, or is contrary to
law." Streger also noted plaintiff's argument his burden should be "reduced"
was unsupported by case law.
Thereafter, plaintiff filed an order to show cause seeking injunctive relief
reinstating his clinical privileges and requiring a different burden than outlined
in the bylaws apply to his hearing. Specifically, plaintiff argued the burden of
proof outlined in Nanavati should apply to his hearing, rather than the order of
presentment in the bylaws in which, as noted, provides:
a. The [MEC] or Board shall first present evidence in
support of its recommendation and shall bear the
burden of demonstrating that its recommendation is
reasonable and warranted.
b. Thereafter, consistent with the burden on the
individual to demonstrate that he or she satisfies, on
a continuing basis, all criteria for appointment
and/or clinical privileges, as appropriate, the
Hearing Panel shall recommend in favor of the
[MEC] unless it finds that the individual who
requested the hearing has proved, by clear and
convincing evidence, that the recommendation that
prompted the hearing was arbitrary, capricious, or
A-0436-23
11
not supported by credible evidence, or was contrary
to law.
[Emphasis added.]
The court granted in part, and denied in part, plaintiff's application and
issued a July 24, 2023 conforming order. Specifically, the court granted
plaintiff's request the Nanavati burden of proof be applied in his fair hearing,
but denied his request to be immediately reinstated. Analyzing plaintiff's
request for injunctive relief through the factors outlined in Crowe v. De Gioia,
90 N.J. 126, 132-34 (1982), the court found plaintiff faced immediate and
irreparable harm "if a standard that contravenes Nanavati is employed" because
an improper standard would deprive plaintiff a fair hearing and monetary
damages would be an insufficient remedy.
Next, the court found the second Crowe factor satisfied as it "it is well-
settled that the [c]ourt may intervene in administrative proceedings where a
hospital acted in contravention to any of the four inquiries" detailed in George
Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).6
6
In Harms, the Court stated, "[i]n light of the executive function of
administrative agencies, judicial capacity to review administrative actions is
severely limited," and noted the "judicial role" is limited to four inquiries:
A-0436-23
12
With respect to likelihood of success on the merits, the court found
plaintiff satisfied the factor because if the ultimate outcome of plaintiff's
administrative hearing is the termination of plaintiff's privileges, the decision
would have to meet the Nanavati standard. It explained that standard would
require hospital authorities to show "'prospective disharmony' caused by
[p]laintiff 'will probably have an adverse impact on patient care' through a
demonstration of 'concrete evidence,'" and the burden would then shift to
plaintiff to establish by clear and convincing evidence defendants' decisions
were arbitrary, capricious, not supported by credible evidence, or contrary to
law. Finally, the court found the balance of hardships weighed in plaintiff's
favor should defendants ultimately determine not to reinstate plaintiff's
privileges as the hearing, without injunctive relief, would have been
fundamentally unfair.
(1) whether the agency's decision offends the State or
Federal Constitution; (2) whether the agency's action
violates express or implied legislative policies; (3)
whether the record contains substantial evidence to
support the findings on which the agency based its
action; and (4) whether in applying the legislative
policies to the facts, the agency clearly erred in
reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
[137 N.J. at 27.]
A-0436-23
13
Thereafter, defendants moved for reconsideration which the court denied
in an August 28, 2023 order and accompanying statement of reasons. The court
rejected defendants' argument the court's interpretation of Nanavati was
palpably incorrect as the holding in that case was applicable only to the
termination of a practitioner's privileges on the basis of disruptive behavior. The
court disagreed and explained, "[w]hile Nanavati is limited to termination, the
termination referred to is that of staff privileges, and not of employment." The
court noted plaintiff's privileges could be terminated in this case, "even
temporarily and even non-exhaustively," and "a precautionary suspension
effectively terminates certain privileges for the litigant." The court accordingly
denied defendants' motion for reconsideration and this appeal followed. We
subsequently granted motions by the New Jersey Hospital Association (NJHA)
and the New Jersey Podiatric Medical Society (NJPMS) to participate as amici
curiae.
II.
In their first substantive point before us, defendants rely on Garrow v.
Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 557-60 (1979) and Nanavati,
107 N.J. at 248, in contending the court improperly intervened in a hospital
administrative proceeding because plaintiff had not exhausted intra-hospital
A-0436-23
14
administrative remedies. Defendants also argue, relying on Zoneraich v.
Overlook Hosp., 212 N.J. Super. 83, 91 (App. Div. 1986), when courts review
"credentialing decisions," that review only occurs after the completion of a fair
hearing, and only to determine if the process was fundamentally fair and if the
record contains sufficient reliable evidence to justify the result.
Defendants also argue the court erred in granting plaintiff injunctive relief
contrary to Garrow and subsequent case law which hold courts are to avoid
intervening with internal hospital procedures until the fair hearing is completed.
Defendants assert the court's intervention upended both the status quo and fair
hearing process, as well as ignored the substantial public interest in deferring
staffing decisions to hospitals.
According to defendants, Garrow held hospitals are akin to administrative
agencies due to their subject matter expertise and as such, the concept that
administrative remedies should be fully exhausted prior to judicial action applies
to hospitals. Defendants acknowledge plaintiff's ability to contest his hearing
but argue such contest should only occur at the conclusion of the hearing.
Defendants also note if plaintiff prevails in the fair hearing, there will be no
need for judicial intervention. Defendants further argue the exhaustion of
A-0436-23
15
administrative remedies also affords the court with a complete record in the
event of judicial review.
Defendants also assert because the court "inserted" an inapplicable burden
into the hearing process, defendants will be prejudiced and, unless the court's
order is vacated, will not have an opportunity to address the error until after both
the completion of the hearing and the resolution of plaintiff's civil claims.
Defendants argue Zoneraich, 212 N.J. Super. at 91, "makes clear that so long as
the practitioner received fundamentally fair process and substantial credible
evidence supports the [h]ospital's decision, then the [h]ospital has acted in good
faith."
On this point, amicus curiae NJHA generally echoes defendants' position
and argues "courts have acknowledged that hospitals and their administrative
bodies are better positioned than courts to make certain decisions, including
those regarding the composition of their medical staff." NJHA contends the
courts afford hospitals certain deference, including "an administrative agency-
like model for judicial review for the [f]air [h]earing substance and procedure."
Plaintiff and amicus curiae NJPMS disagree and contend Garrow does not
impose a categorical rule barring judicial review of intra-hospital proceedings
prior to completion, as Garrow recognizes certain exceptions to the general rule,
A-0436-23
16
such as review of a legal question. Plaintiff and NJPMS argue the trial court
intervened to address a legal issue raised in plaintiff's application, and the
intervention was therefore proper.
In their second substantive point before us, defendants argue even
assuming the court properly intervened, the court erred by ordering the Nanavati
burden proof be used in plaintiff's hearing process as that standard applies to a
physician's termination of privileges, but does not apply to the precautionary
suspension of plaintiff's privileges and subsequent recommendation those
privileges be reinstated with restrictions. Defendants assert the newly inserted
burden on proof contradicts the reasons for a precautionary suspension, such as
patient safety, and also contradicts "the basis for limited review of fair hearings."
According to defendants, the Nanavati standard, by its own holding, is
expressly limited to the termination of a physician's privileges when that
termination is based solely on disruptive behavior. Defendants state they are
not seeking to terminate plaintiff's privileges and termination of plaintiff's
privileges is not an issue at the pending hearing. Rather, defendants
precautionarily suspended plaintiff's privileges and subsequently recommended
reinstatement with certain restrictions. Defendants also state while no case
A-0436-23
17
provides the required standard for a precautionary suspension, the bylaws do
provide such a standard and plaintiff is bound by the bylaws.
Defendants contend the Nanavati standard cannot apply to a precautionary
suspension because such a suspension is not a final determination and there
would therefore be no need for a higher standard when dealing with termination
of privileges. To apply the Nanavati standard to precautionary suspensions,
according to defendants, would result in the hospital having to wait until a
physician's refusal to abide by hospital authority resulted in actual harm before
being able to take action.
On this point, NJHA again generally coincides with defendants' positions
and, specifically, it agrees that the trial court committed reversible error by
applying a burden of proof different than provided by the bylaws. NJHA
contends the court's insertion of the Nanavati standard frustrates the idea that
hospitals are generally entitled to run their own business so long as they do so
fairly. NJHA agrees with defendant that no case expressly states the required
burden of proof when conducting a fair hearing with respect to a precautionary
suspension, as Nanavati concerned termination of privileges. NJHA asserts
because the bylaws address the burden of proof when addressing a precautionary
suspension, rather than a termination, the bylaws are lawful. Further, NJHA
A-0436-23
18
argues the court should not impose a higher burden for suspension than provided
by a hospital's bylaws when the burden provided in the bylaws is not contrary
to law.
Plaintiff and amicus curiae NJPMS disagree and argue the trial court
correctly held the Nanavati standard applies here as the standard is more broadly
applicable than defendants maintain. Plaintiff and NJPMS also contend
defendants' bylaws should not be used in the fair hearing process as they
improperly contradict Nanavati.
III.
We first address the standard of review with respect to the two orders
before us. A trial court's decision to deny a motion for reconsideration will be
upheld on appeal unless the motion court's decision was an abuse of discretion.
Granata v. Broderick, 446 N.J. Super. 449, 468 (App. Div. 2016). An abuse of
discretion "arises when a decision is 'made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation
omitted). Similarly, "a trial court's decision pertaining to injunctive relief is
reviewed for an abuse of discretion." N. Bergen Mun. Utils. Auth. v.
I.B.T.C.W.H.A. Local 125, 474 N.J. Super. 583, 590 (App. Div. 2023).
A-0436-23
19
"However, appellate review is de novo where the disputed issue relating to the
injunctive relief is a question of law." Ibid.
We first turn to defendants' argument the court improperly intervened
during the fair hearing process and prior to plaintiff exhausting intra -hospital
administrative remedies. In Garrow, the plaintiff doctor filed a complaint and
order to show cause seeking to restrain the defendant hospital from conducting
a hearing on his staff application until he was able to examine all documents in
defendant's possession relevant to his application, and to have counsel present
during the hearing. 79 N.J. at 552-53. We reversed the court's dismissal, finding
the "adequacy of the hearing implicated concepts of fundamental procedural due
process," and thus justified judicial action. Id. at 556.
The Supreme Court disagreed "that judicial review at th[at] interlocutory
stage was warranted." Id. at 557. It explained staff appointment procedures
before a non-profit private hospital board were subject to the same concepts and
rules of judicial intervention applicable to administrative agencies, reasoning
the boards of such hospitals "are managing quasi-public trusts . . . [which] ha[ve]
a fiduciary relationship with the public." Ibid. (quoting Doe v. Bridgeton Hosp.
Ass'n, Inc., 71 N.J. 478, 487 (1976)).
A-0436-23
20
One such "fundamental concept," the Court found, is "that administrative
remedies should be fully explored before judicial action is sanctioned." Id. at
558. It reasoned this exhaustion doctrine serves several important ends,
including (1) preventing unnecessary judicial intervention, which could occur if
the complaining party prevails; (2) discouraging piecemeal litigation generally;
(3) giving appropriate deference to the expertise of the agency or hospital; (4)
deciding issues "after factual disputes have been resolved by the fact-finding
body and not in a vacuum"; and (5) "permit[ting] 'the administrative process to
go forward without interruption.'" Id. at 559-60 (quoting McKart v. United
States, 395 U.S. 185, 194 (1969)). With respect to hospital staffing decisions in
particular, the Court noted hospitals have particular expertise in determining a
physician's qualifications and the hospital's needs, and are "vested with a broad
managerial discretion to seek improvement in medical care" as the board's
decisions "could have a substantial impact on the quality of care to be provided."
Id. at 559.
Significantly, the Court noted the exhaustion doctrine is "not an absolute,"
but exceptions exist in certain circumstances such as:
when only a question of law need be resolved, Nolan v.
Fitzpatrick, 9 N.J. 477, 487 (1952); when the
administrative remedies would be futile, Naylor v.
Harkins, 11 N.J. 435, 444 (1953); when irreparable
A-0436-23
21
harm would result, Roadway Express, Inc. v. Kingsley,
37 N.J. 136, 142 (1962); when jurisdiction of the
agency is doubtful, Ward v. Keenan, 3 N.J. 298, 308-
309 (1949); or when an overriding public interest calls
for a prompt judicial decision, Baldwin Const. Co. v.
Essex Cty. Bd. of Taxation, 24 N.J. Super. 252, 274
(Law Div. 1952), aff'd 27 N.J. Super. 240 (App. Div.
1953).
[Id. at 560.]
"Even assuming that principles of fundamental fairness support the
plaintiff's claim," the Court concluded, before intervening a court should "weigh
and consider the offsetting factors of orderly procedure, elimination of
unnecessary judicial proceedings, and due deference to the expertise of and
available to the board concerning medical competency and professional ethics
in view of the broad management discretion vested in the board in such matters."
Id. at 563.
The Court further described the appropriate considerations before
permitting the exhaustion doctrine to be waived in N.J. Civil Service Ass'n v.
State, 88 N.J. 605, 613 (1982). It explained:
we are not particularly concerned with the label or
description placed on the issue but are concerned with
underlying considerations such as the relative delay and
expense, the necessity for taking evidence and making
factual determinations thereon, the nature of the agency
and the extent of judgment, discretion and expertise
involved, and such other pertinent factors . . . as may
A-0436-23
22
fairly serve to aid in determining whether, on balance,
the interests of justice dictate the extraordinary course
of bypassing the administrative remedies made
available by the Legislature.
[Ibid. (quoting Roadway Express, Inc. v. Kingsley, 37
N.J. 135, 141 (1962)) (alteration in original).]
With this guidance in mind, we are convinced the court should not have
intervened. As described in more detail infra in section IV, the question of
which standard governs the hearing involves factual determinations, most
importantly the nature of the underlying allegations against plaintiff and the
remedy sought by defendant. Additionally, as noted in Garrow, a hospital is
"vested with a broad managerial discretion" and we should afford deference to
its expertise in determining the qualifications of its medical staff and its needs.
79 N.J. at 559.
Further, judicial intervention at this point allowed piecemeal litigation of
the issues, which would have been unnecessary if plaintiff were to prevail. And,
if plaintiff did not prevail, he could have sought relief from the court with the
benefit of a fully-developed factual record. Each of these circumstances leads
us to the conclusion it was not appropriate for the court to intervene and bypass
defendants' internal process. See Garrow, 79 N.J. at 559-60.
A-0436-23
23
IV.
In light of our decision the court should not have intervened in the fair
hearing process, we need not reach defendants' second argument that the court
erred in directing the Nanavati standard be applied to the hearing instead of the
standard set forth in defendants' bylaws. In the interest of thorough and
complete appellate review of the parties' arguments, however, we nevertheless
address that issue and also agree with defendants.
In general, "[j]udicial review of hospital decisions regarding admission to
medical staff, extent of privileges and termination is very limited." Zoneraich,
212 N.J. Super. at 90. Indeed, "[h]ospital officials are vested with wide
managerial discretion, to be used to elevate hospital standards and to better
medical care." Ibid. (citing Griesman v. Newcomb Hosp., 40 N.J. 389, 403
(1963)). Because a hospital's purpose is to serve the public, "[s]o long as
hospital decisions concerning medical staff are reasonable, are consist[e]nt with
the public interest, and further the health care mission of the hospital, the courts
will not interfere." Ibid. (citing Desai v. St. Barnabas Med. Ctr., 103 N.J. 79
(1986), and Belmar v. Cipolla, 96 N.J. 199, 208 (1984)). Any "[j]udicial review
of a hospital board action 'should properly focus on the reasonableness of the
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action taken in relation to the several interests of the public, the [physician], and
the hospital.'" Id. at 91 (quoting Garrow, 79 N.J. at 565) (alteration in original).
Even affording such deference, "a physician is entitled to fundamentally
fair procedures in a non-profit hospital's consideration of staff membership, the
extent of privileges and termination." Hurwitz v. AHS Hosp. Corp., 438 N.J.
Super. 269, 296 (App. Div. 2014) (quoting Zoneraich, 212 N.J. Super. at 91).
As such, courts have held the following to constitute fundamental fairness:
notice of the charges or proposed action prior to a hearing, a fair and unbiased
tribunal, a qualified right to counsel and right disclosure of certain information.
Id. at 296-97 (citing Zoneraich, 212 N.J. Super. at 91, and Garrow, 79 N.J. at
566-68).
In Nanavati, the Court considered "the appropriate standard of review of
the decision by a hospital to terminate a physician's staff privileges" and
determined "hospital authorities should present concrete evidence of specific
instances of misbehavior" and that such "prospective disharmony will probably
have an adverse impact on patient care." 107 N.J. at 248, 254. The hospital
defendant in that case sought to revoke the plaintiff cardiologist's staff privileges
due to "[a]cts of [d]isruptive [b]ehavior," alleging plaintiff violated a provision
of its bylaws which required a staff doctor "be of a temperament and disposition
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that will enable him to work in harmony with his colleagues . . . the professional,
technical, and other personnel in the hospital, and with the administration . . . ."
Id. at 243-45.
The Court acknowledged "most hospitals have established procedures to
make and review decisions affecting [staff] privileges" which are entitled to
deference. Id. at 250-51. It explained that deference is based on "[s]everal
factors," including (1) the purpose of such procedures to provide " a fair method
for making decisions concerning staff privileges" outside the judiciary, (2) the
"extensive regulation" governing hospitals, and (3) the "expertise in both
medical treatment and hospital administration" required to run a hospital. Ibid.
The Court also recognized cooperation among medical staff is "critical in
a modern hospital, where no single doctor cares for all the needs of any one
patient," and while "[a] hospital need not wait for a disruptive doctor to harm a
patient before terminating his or her privileges . . . more should be required than
general complaints of a physician's inability to cooperate with others ." Id. at
252, 254. It thus held "hospital authorities should present concrete evidence of
specific instances of misbehavior" to demonstrate a doctor's "disruptive
behavior merit[s] termination of staff privileges." Id. at 254. Because decisions
denying or revoking privileges affect the hospital, the doctor, and the patients,
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the Court concluded it "str[uck] the appropriate balance by requiring that the
hospital establish that 'prospective disharmony will probably have an adverse
impact on patient care.'" Ibid. (quoting Sussman v. Overlook Hosp. Ass'n, 92
N.J. Super. 163, 182 (Ch. Div. 1966)).
Contrary to plaintiff's assertions, we are satisfied Nanavati does not
govern the circumstances before us. That case involved a situation where the
hospital's decision to terminate the doctor's privileges was based purely on the
doctor's allegedly disruptive behavior. Id. at 244-45. Here, in contrast,
defendants allege plaintiff acted beyond the scope of his privileges by
performing an "incision and drainage of the tibia or tibial osteotomy," and
conducting an "osseous procedure[] to the tibia or fibula above the level of the
ankle." Although the allegations against plaintiff also include claims of
unprofessional conduct, those contentions are not the sole basis for the hospital's
action, unlike in Nanavati.
Additionally, Nanavati discussed the standard applicable to procedures
seeking termination of privileges, not a proposed restriction of privileges subject
to the result of a hearing, or a temporary suspension, as here. Id. at 248. No
party has identified, nor has our independent research uncovered, any case
applying the Nanavati standard to such circumstances. Although the court noted
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plaintiff's privileges "stand to be terminated, even temporarily and non -
exhaustively," we find no support for that finding in the record, as termination
and suspension are distinct disciplinary actions. Indeed, defendants
recommended plaintiff's privileges be reinstated subject to an FPPE.
With those distinctions in mind, we conclude the correct standard to apply
at the hearing on the temporary suspension of plaintiff's privileges is that set
forth in defendants' bylaws. It is undisputed that plaintiff is governed by
defendants' established procedures provided by its bylaws. As the Court
explained in Nanavati, a hospital's established procedures for making privilege-
related decisions are entitled to our deference. Id. at 250-51. Nothing in the
record before us suggests the burden of proof in the bylaws would be
fundamentally unfair or otherwise undeserving of that deference. See Hurwitz,
438 N.J. Super. at 296-97.
Reversed.
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