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
LEVINSON, J.
I join in the holding of the court that the decision of the governing body of Castle Memorial Hospital to revoke the appellant’s staff privileges is subject to judicial review and that an injunction should issue reinstating him to the position which he occupied prior to the revocation proceeding. I also subscribe to the guidelines laid down in the opinion of the court restricting the administrative discretion of the hospital board and extending procedural protections to a physician whose staff privileges are at issue. I would, however, go further. 1
I would hold in plain language that a physician licensed *491 by the State of Hawaii under HRS ch. 453 is presumed qualified to engage in the general practice of medicine. When a physician is in a specialty certified by the American Board of Medical Specialties, I would extend the presumption to that particular specialty. Thus, a hospital which has received public funds 2 would be required to grant the application for staff privileges of any board certified and/or licensed physician, unless it can adduce clear and convincing evidence that the physician lacks the requisite medical qualifications. I emphasize that the burden should be upon the hospital to adduce such evidence. I interpret the opinion of the court to be consistent with what I have said in this paragraph.
The hearing at which a physician’s right to staff privileges is determined must comport with the dictates of due process. The physician may not be held to a more stringent standard of performance than are other staff members. In addition to timely notice and a written statement of the specific charges against him, I would hold that a physician is entitled to the representation of counsel and an opportunity to cross-examine all witnesses against him in all proceedings affecting his right to staff privileges. The conduct of an adequate defense is obviously impossible if the physician cannot confront and cross-examine adverse witnesses. A hospital’s lack of subpoena power would not prevent the trier of fact from declining to consider evidence offered by a staff member who does not have the courage and willingness to subject himself to cross-examination.
I am satisfied from reading the entire record that Castle Memorial Hospital subjected Dr. Silver to a kafkaesque “kangaroo court,” called at the eleventh hour in an effort to comply with the hospital’s own by-laws and to rationalize a result which its board of trustees had already reached. Such proceedings are constitutionally intolerable.
I understand my Brother Abe’s position to be that all licensed physicians must be accorded staff privileges to practice in any public or quasi-public hospital, without regard to additional indicia of medical qualifications or performance. De *491 spite the appeal inherent in all absolutist positions, I believe that the respective interests of hospital, physician, and public are susceptible to more flexible reconciliation.
I express no opinion as to the standard which should be applied to those hospitals which receive no public funds.