holding that state and federal funding during hospital’s construction subjects it to judicial review of denial of staff privileges
How later courts described this case
- holding that state and federal funding during hospital’s construction subjects it to judicial review of denial of staff privileges
- doctor applying for staff privileges at a publicly funded hospital “has an interest in being able to pursue his profession[,] which requires that the necessary fa cilities be available to him,” and is entitled to procedural due process
- judicial review is available as to whether hospital board’s decision has resulted in an arbitrary, capricious or unreasonable exclusion
- dictating procedural safeguards to be employed by hospitals when considering doctor’s application for initial appointment or reappointment to staff
Written by the judges who cited it.
The opinion
CONCURRING OPINION OF
ABE, J.
I begin with the propositions that acts of hospitals performing “public functions” 1 or receiving government funds are state action and that such hospitals are therefore subject to the requirements of the Due Process Clause and may deny a physician the liberty to practice medicine only if they have a rational basis for doing so and act pursuant to fair procedures.
I would hold that whenever a physician is in compliance with the requirements for licensing of the State Board of Medical Examiners, no Hawaii hospital subject to the Due *488 Process Clause may completely deny him the right to admit and treat patients.
In my opinion, there is little need to allow hospitals to set up committees empowered to deny staff privileges to licensed physicians. The licensing of physicians has been preempted by the State and adequate procedures are already established by statute to determine whether or not a physician continues to be competent. As I read our statutes, any hospital, doctor, or other interested person may institute proceedings under HRS § 453-8 (Supp. 1971) to have a physician’s license revoked or partially revoked. The Board of Medical Examiners, a select committee of physicians appointed by the Governor, then determines whether a physician’s license should be revoked or suspended. Chapter 453 contains the detailed procedural protections which the majority favors, such as notice, opportunity for a hearing, and a subpoena power for both the board and the physician, and it allocates the burden of proof to the hospital, as Justice Levinson desires. The fact that the legislature has established a comprehensive scheme to determine whether or not a physician continues to be competent indicates that there is little need to allow hospitals to make a second determination of whether or not a physician is competent.
Against the positive need for hospital supervision of the competence of physicians, I weigh the risks of giving such supervisory powers to hospitals. Whenever a hospital appoints a group of its doctors to a “credentials committee” and empowers them to supervise the competence of other doctors, there is a grave danger that the members of the committee will seek to exclude doctors because they are competitors, because they are Black, or Jewish, or Haole or Oriental, because they have testified against them in malpractice suits, or simply because they do not like them. Requiring a credentials committee to act out a charade of seemingly fair procedures does little to minimize the danger that the committee will draw its conclusion for reasons not present in the record and that danger exists regardless of where the burden of proof is allocated. The root problem *489 is that a credentials committee can never be expected to act with the disinterestedness of the Board of Medical Examiners.
Weighing the very marginal gains to be had by allowing hospitals to completely exclude licensed physicians against the risks attending the power, I conclude that hospitals that are subject to the Due Process Clause have no rational basis for excluding licensed physicians.
This resolution does not create a risk that a hospital will be liable for the negligence of its physicians, yet lack the capacity to exclude them. With the possible exception of one decision, 2 courts have always held that a hospital is not liable for the negligent acts of the physicians who are not employed by the hospital. 3 The ordinary physician is not the hospital’s “servant” because the hospital has no “right to control” the acts of an “independent contractor.” Since the hospital is not liable for the independent physician’s negligence, it has no need to guarantee that he is competent. 4
The danger that the hospital’s admission of a physician to its staff will encourage patients to seek the services of a doctor who may be incompetent is also chimerical. Patients *490 are admitted to hospitals only after they have chosen a doctor. Even in emergency rooms, patients are treated either by doctors in the employ of the hospital, or by a physician of their own choosing.
Nor do I see a danger that a single hospital will be flooded with excessive numbers of doctors and patients. It seems preferable to allocate facilities to those patients who are neediest or on a first-come, first-serve basis, rather than to allow arbitrary admission of patients of self-selected physicians.
This court should recognize that hospitals are not clubs. Incumbent doctors do not need the power to exclude newcomers. Licensed physicians ought to be able to freely admit patients to any hospital of the patient’s choosing. Also, we should recognize the right of a patient to have a doctor of his own choice attend him and we should eliminate factors that may hamper or hinder such right.
I concur in the holding that it was error for the court to grant a directed verdict allowing the hospital to completely exclude Dr. Silver, and error to fail to grant an injunction restraining Castle Memorial Hospital and the members of its credentials committee from completely denying Dr. Silver the right to admit patients.
Marsh v. Alabama, 326 U.S. 501 (1946); Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968); Smith v. Allwright, 321 U.S. 649 (1944).
Darling v. Charleston Community Memorial Hospital, 50 Ill. App. 2d 253 , 200 N.E.2d 149 (1964), aff'd, 33 Ill. 2d 326 , 211 N.E.2d 253 (1965).
Moon v. Mercy Hospital, 150 Colo. 430 , 373 P.2d 944 (1962); Cornelius v. Sinai Hospital of Baltimore, Inc., 219 Md. 116 , 148 A.2d 567 (1959); Minogue v. Rutland Hospital, Inc., 119 Vt. 336 , 125 A.2d 796 (1956); Keene v. Methodist Hospital, 324 F. Supp. 233 (D.C. Ind. 1971); Bulloch County Hospital Authority v. Fowler, 124 Ga. App. 242 , 183 S.E.2d 586 (1971).
Hospitals are, of course, liable for their own negligent acts, South Highlands Infirmary v. Camp, 180 So. 2d 904 (Ala. 1965); Schuster v. St. Vincent Hospital, 45 Wis. 2d 135 , 172 N.W.2d 421 (1969); Weeks v. Latter-Day Saints Hospital, 418 F.2d 1035 (C.A. Utah, 1969), or for the negligence of interns, residents, emergency room physicians, and the like who are actually employed by the hospital. New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185 , 146 So. 2d 882 (1962); Bing v. Thunig, 163 N.Y.S.2d 3 , 2 N.Y.2d 656 , 143 N.E.2d 3 (1957). Since salaried physicians are subject to the hospital’s control, the doctrine of respondeat superior applies and the hospital has both a right and a duty to examine the competence of employees it hires on a salaried basis. A number of jurisdictions hold that a hospital is not liable for the acts of even a salaried physician, on the theory that, since medicine is a field of great expertise, hospitals have no “right to control” any doctor, salaried or not. See e.g., Brown v. Moore, 143 F. Supp. 816 (W.D. Pa. 1956).