# B. Doe, M.D., on Behalf of B. Doe and B. Doe's Patients v. St. Joseph's Hospital of Fort Wayne

> Court of Appeals for the Seventh Circuit · April 2, 1986 · 788 F.2d 411

URL: https://www.frixlaw.com/law-library/cases/9474724

## Case

- **Full name:** B. DOE, M.D., on Behalf of B. DOE and B. Doe’s Patients, Plaintiff-Appellant, v. ST. JOSEPH’S HOSPITAL OF FORT WAYNE, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** April 2, 1986
- **Citations:** 788 F.2d 411; 39 Empl. Prac. Dec. (CCH) 35,995; 40 Fair Empl. Prac. Cas. (BNA) 820; 1986 U.S. App. LEXIS 23762
- **Precedential status:** Published
- **Opinion:** Concurring in part by Ripple
- **Judges:** Cudahy, Ripple, Swygert
- **Cited by:** 258 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Dr. Mark F. Alexander v. Rush North Shore Medical Center, 101 F.3d 487 (1997).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474724

## How later opinions describe it (automated extraction)

- finding a Title VII claim to be viable where the plaintiff agreed that the hospital’s action discriminatorily interfered with her opportunities to provide services to her patients
- holding that a physician’s receipt of money from governmental insurance programs, among other factors, was not enough to implicate interstate commerce
- holding that independent doctor could state Title VII claim for denial of staff privileges

## Opinion text

RIPPLE, Circuit Judge,
concurring in part and dissenting in part.
I concur in the majority’s disposition of the section 1981, Title VI and antitrust claims. I respectfully disagree, however, with its disposition of the Title VII claim.
The majority, adopting a broad interpretation of Title VII, holds that the district court’s dismissal of Dr. Doe’s Title VII claim for failure to state a claim upon which relief could be granted was inappropriate. I respectfully disagree.
Title VII states, in pertinent part, that:
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(l). According to the Act, an employee is “an individual employed by an employer.” Id. § 2000e(f). Dr. Doe does not dispute the fact that she did not have an employment relationship with St. Joseph’s for purposes of Title VII. Rather, she contends that the hospital’s action in denying her “staff privileges” interfered with her employment opportunities:
*427 A discriminatory denial of staff privileges to a physician adversely affects her ability to obtain and maintain employment by patients who need hospitalization. The plaintiff specifically alleges, in paragraphs 16 and 27 of her Amended Complaint, A-19, that her inability to admit and care for patients in the defendant hospital, has “significantly and adversely affected her employment relations and opportunities with patients,” and has required that her patients and potential patients seek medical care elsewhere.
Appellant’s Br. 23-24.
The majority finds that Dr. Doe’s reliance on Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and Puntolillo v. New Hampshire Racing Commission, 375 F.Supp. 1089 (D.N.H.1974) is appropriate. I agree that those cases provide support for the proposition that Title VII was intended to “achieve equality of employment opportunities,” and to “provide equal access to the job market for both men and women.” Sibley, 488 F.2d at 1340-41 (emphasis in original) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429 , 91 S.Ct. 849, 852 , 28 L.Ed.2d 158 (1971) and Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 386 (5th Cir.), cert. denied, 404 U.S. 950 , 92 S.Ct. 275 , 30 L.Ed.2d 267 (1971), respectively). However, I do not believe that those cases provide support for Dr. Doe’s claim. There is a vital distinction between the Sibley and Puntolillo holdings and this case — the degree of control exercised by the defendant over the plaintiff's access to employment opportunities. In Sibley, the action of the hospital prevented Wilson from making the contact necessary to establish an employment relationship between himself and his “employers” — the patients. The hospital’s control over access to the “employers” at issue was, as a practical matter, absolute. Similarly, in Puntolillo , the action of the Commissioner effectively precluded Punto-lillo from establishing an employment relationship with horse owners — his potential “employers.” In both cases, the defendants had total effective control over the plaintiffs’ abilities to contact their actual “employers.”
In this case, however, St. Joseph’s Hospital does not have such total control over Dr. Doe’s ability to obtain patients. It cannot prevent or preclude her from maintaining or establishing relationships with patients. 1 Her “staff privileges” at St. Joseph’s simply afforded her an opportunity to treat her patients in that particular hospital. Dr. Doe is. still free to treat her patients at her office or in any other health facility. In short, since St. Joseph’s Hospital does not control Dr. Doe’s access to patients, its action cannot be characterized as interfering with her employment relationships with her patients. 2
The specific question of whether Title VII affords protection to physicians who are affiliated with hospitals has been considered by three courts. Those courts reached different results. As the majority notes, one district court concluded that the denial of staff privileges falls within the *428 Sibley rule. See Pao v. Holy Redeemer Hospital, 547 F.Supp. 484 (E.D.Pa.1982). The Pao court decided that the hospital had the “same capacity as the defendant in Sibley to control the plaintiff’s access to those prospective patients who are his ultimate ‘employers.’ ” Pao, 547 F.Supp. at 494 . The court, therefore, refused to grant the defendant’s motion to dismiss. I believe that this decision was incorrect. 3 In my view, a recent case, Beverley v. Douglas, 591 F.Supp. 1321, 1328 (S.D.N.Y.1984), presents a rationale far more compatible with congressional intent. In Beverley , the district court considered the question whether the denial of admitting privileges at a hospital presented an employment relationship within the meaning of Title VII. After rejecting the argument that the physician had an employer-employee relationship with the hospital, id. at 1327 , it addressed the argument that denial of hospital privileges interferes with the physician’s future employment opportunities with his or her patients. After distinguishing Sibley and Gomez along the lines suggested in the foregoing paragraphs, Judge Weinfeld concluded:
Even assuming that plaintiff has alleged that the Hospital’s denial of her application for voluntary attending privileges interfered with her relationship to her patients, her relationship to her patients is not one of employment. Indeed, plaintiff admits that “there is no question that a ‘physician, in his or her relationship with patients, is the classic independent contractor.’ ” In order to invoke Title VII, plaintiff must allege and prove some link between the defendants’ actions and an employment relationship. No such connection is present here — by plaintiff’s own admission, her relationship to her patients is not that of employer and employee.
Id. at 1328 .
The analysis employed by Judge Wein-feld in Beverley is the correct one. Dr. Doe has not established the connection between herself and the hospital necessary to state a claim under Title VII — an employment relationship with which there has been interference. Physicians with “staff privileges” such as Dr. Doe are independent contractors. Moreover, physicians are not considered to have an employment relationship with their patients. Rather, it is a client/professional relationship — much like that between an attorney and his client. Thus, under any reading of Dr. Doe’s claim, she does not state a cause of action under Title VII, and the district court’s dismissal of her claim should be affirmed.
. Dr. Doe alleged in her complaint that she has applied for "staff privileges” at other Ft. Wayne hospitals but that she had not as yet been granted those privileges. However, the fact that no other hospital has accorded her privileges does not require St. Joseph’s to keep her on staff.
. This analysis applies with equal force to Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir. 1983). In Gomez, the plaintiff was a Hispanic physician who practiced medicine as a professional corporation under the name American Emergency Services Professional Corporation Medical Group (AES). In 1978, AES submitted a bid to run the defendant’s emergency room. Plaintiff was to act as director of the emergency room, and five of the twelve participating physicians were to be Hispanic. The hospital rejected the bid. The court found that Dr. Gomez stated a cause of action under Title VII because he alleged that the hospital’s refusal, purportedly on racial grounds, "denied him the opportunity to be employed by AES as director of defendant’s emergency room.” Id. at 1021.
The employment opportunity sought by Gomez was to handle emergency patient care on a full-time basis. Patients in need of such emergency care seek it from health care facilities not individual physicians. By refusing the AES bid, the hospital effectively precluded Gomez from any access to emergency medical patients. Again, Dr. Doe has not been so hampered.
. A subsequent decision from the same district has substantially undercut the rationale of Pao . In Amro v. St. Luke’s Hosp., 39 Fair Empl.Prac. Cas. (BNA) 1574 (E.D.Pa.1986), the court held that "[e]ven though the defendant hospital may exercise economic control over • the plaintiffs future to earn income, this is not sufficient to counterbalance all the other factors which tend to classify the doctor as an independent contractor.” Id. at 1577.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474724. Public record. Not legal advice.