# Garrow v. Elizabeth General Hospital and Dispensary > Supreme Court of New Jersey · May 15, 1979 · 79 N.J. 549 URL: https://www.frixlaw.com/law-library/cases/9713214 ## Case - **Full name:** Eugene Garrow, M.D., Plaintiff-Respondent, v. Elizabeth General Hospital and Dispensary, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** May 15, 1979 - **Citations:** 79 N.J. 549; 401 A.2d 533; 1979 N.J. LEXIS 1215 - **Precedential status:** Published - **Opinion:** Concurring in part by Pashman - **Judges:** Schreiber, Pashman - **Cited by:** 100 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713214 ## How later opinions describe it (automated extraction) - applying exhaustion of remedies to proceedings against non-profit private hospital relating to qualifications of medical staff ## Opinion text Pashman, J., concurring and dissenting in part. Although I am fully in agreement with the result reached by the major *569 ity and with its reasoning as to the procedural rights to he accorded plaintiff at the hospital hearing, I respectfully disagree with its conclusion as to exhaustion of remedies. In my view, the policies protected by that generally salutary doctrine are not adequately implicated in these circumstances so as to outweigh plaintiff’s right to immediate judicial intervention. Courts are generally agreed that a plaintiff’s challenge to the validity of an agency’s procedures is not subject to the exhaustion doctrine. See, e. g., Mathews v. Diaz, 426 U. S. 67 , 96 S. Ct. 1883 , 48 L. Ed. 2d 478 (1976); Mathews v. Eldridge, 424 U. S. 319 , 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976); Finnerty v. Cowen, 508 F. 2d 979 (2d Cir. 1974); Fitzgerald v. Hampton, 152 U. S. App. D. C. 1, 467 F. 2d 755 (1972); Francois v. Bushell, 325 F. Supp. 531, 533 (N. D. Cal. 1971), aff’d sub nom. Temple v. Bushell, 500 F. 2d 591 (9 Cir. 1974) (per curiam) (“when a party challenges the essential adequacy of his administrative remedy, exhaustion is not required”). In certain circumstances, moreover, plaintiff will not even be required to request the agency to modify its procedures before seeking judicial intervention. Mathews v. Eldridge, supra. The reasons underlying this exception to the exhaustion requirement are both forthright and compelling. The doctrine of exhaustion of administrative remedies serves three major purposes: (1) the rule ensures that claims will be heard, at least as a preliminary matter, by a body possessing relevant expertise; (2) it allows the creation of a factual record necessary for meaningful appellate review; and (3) a favorable agency decision may obviate the need for judicial involvement. Bd. of Educ. of Bernards Tp. v. Bernards Tp. Educ. Assn, 79 N. J. 311, 317 (1979). See McKart v. United States, 395 U. S. 185, 194-195 , 89 S. Ct. 1657, 16621663 , 23 L. Ed. 2d 194, 203-204 (1969) ; Paterson Redevelopment Agency v. Schulman, 78 N. J. 378, 386 — 388 (1979). The first consideration is in no way implicated in cases challenging the validity of agency procedures. Quite the *570 contrary, this consideration militates in favor of immediate judicial intervention. Plaintiff is not here making a claim as to his medical qualifications but, rather, contends that the hospital hearing procedures violate fundamental fairness. This is an area in which courts, not hospital personnel, have expertise. Cf. McKart v. United States, supra, 395 U. S. at 197-198 , 89 S. Ct. at 1664-1665 , 23 L. Ed. 2d at 205-206 . Any insight which hospital members might possibly possess as to the contours of due process within the hospital setting can best be obtained through their participation in court proceedings. Eurther, plaintiff has already requested hospital authorities to grant the procedures he seeks but they have refused. The second consideration, that a factual record be created, is equally inapposite in challenges to agency procedures. The issue here is purely legal — whether hospitals must, as a general matter, provide certain procedural safeguards. Uo factual record is necessary to decide this question. In such cases, we have found that the exhaustion rule need not apply. Nolan v. Fitzpatrick, 9 N. J. 477, 487 (1952). Two cases cited by the majority, Brunetti v. Borough of New Milford, 68 N. J. 576 (1975) and Paterson Redevelopment Agency v. Schulman, 78 N. J. 378 (1979), see am\te at 561-562, are not pertinent here. Both involved situations requiring factual findings and agency interpretations of relevant statutes. Moreover, neither involved challenges to the agency’s procedural protections. The final policy underlying the exhaustion doctrine is the avoidance of unnecessary adjudication. This is the only policy at all implicated in the instant matter, for if the hospital, after a hearing, grants plaintiff his desired staff privileges, he will have no need to challenge the hearing procedures. 1 Al *571 though avoidance of litigation is a worthwhile goal, it does not, in this ease, outweigh the potential harm that may be suffered by plaintiff if judicial intervention is not allowed. The hospital staff has already made a preliminary decision to deny staff privileges to plaintiff. Thus, the chance of a favorable decision alleviating the need for judicial involvement is remote. More importantly, however, the failure to presently adjudicate plaintiff’s claim may cause him irreparable harm. A decision by an appellate court setting aside, on procedural grounds, any adverse hospital determination will not make plaintiff whole. It is naive to believe that the hospital committee, having once made a final determination as to plaintiff’s lack of qualifications, will be able to conduct a new hearing totally free from the taint of the first, procedurally unfair, hearing. It is too much to expect that even well-meaning administrators will be able to perform the mental gymnastics necessary to approach the new hearing completely fresh and open-minded. 2 Thus, the hearing that a successful plaintiff may obtain will be something less than a substitute for an original fair hearing. The above consideration is particularly pertinent in a case such as the one at hand. The procedural shortcomings present *572 in the hearing process are such as may hinder the search for truth and promote erroneous determinations. Thus, under the majority’s formulation, the taint of an erroneous original determination may well be carried over to the second, court-mandated, hearing. Not every case challenging agency procedures requires exemption from the exhaustion requirement. Rather, a court asked to intervene must, in light of the facts, consider the policies underlying the doctrine and balance the equities involved. 3 In this case the procedural challenge was broad based and deeply implicated notions of fundamental fairness. Under the circumstances, I have no hesitancy in determining that exhaustion of remedies was not required. I also wish to add a brief note as to limitation of the extent of counsel’s participation at hospital hearings. It should be emphasized that the majority opinion allows only reasonable regulation of attorney conduct. Thus, unduly restrictive limitations are not sanctioned. As the majority notes, the attorney must be allowed to marshall evidence, explain adverse material and present argument. Moreover, if adverse witnesses are presented, some right of questioning must be allowed. The majority’s statement that “cross-examination and confrontation of adverse witnesses will not necessarily occur,” see ante at 56'6, merely recognizes that in cases where the determination is based on documents rather than live witnesses, there can, of course, be no cross-examination. The validity of particular regulations must await their challenge in a proper case. Although the majority misapplies the doctrine of exhaustion of administrative remedies, nevertheless it reaches *573 the merits of this case. Inasmuch as its resolution of this issue is just and equitable, I concur. For affirmance as modified — Chief Justices Hughes and Justices Mountain, Sullivan, Clieeoed, Schreiber and Handler — 6. Concurring in part and dissenting in part — Justice Pash-man — 1. In a technical sense, this aspect of the question is really a ripeness issue rather than one involving exhaustion of remedies inasmuch as the issue to be considered by the hospital authorities — medical qualifications — is wholly dissimilar to the procedural ques *571 tion which we are here asked to decide. The real nub of the issue is the possibility that plaintiff may be granted his privileges and so may not suffer any harm. Although the majority is, in fact, discussing the incorrect doctrine, this has no bearing upon the ultimate determination of whether plaintiff should have proceeded with the proffered hearing before seeking judicial review. In denying the proposition that persons, however well intentioned, are subject to a tendency to stick with a decision once made (see ante at 564, n. 3) the majority disregards a large body of relevant case law. See, e. g., Wilson v. United States, 534 F. 2d 130, 138 (9th Cir. 1976) (Hufstedler, dissenting) ; United States v. Hammerman, 528 F. 2d 326 (4th Cir. 1975) ; United States v. Huff, 512 F. 2d 66 (5th Cir. 1975) ; United States v. Schwarz, 500 F. 2d 1350 (2d Cir. 1974) (per curiam) ; United States v. Vale, 496 F. 2d 365 (5th Cir. 1974) ; United States v. Bishop, 469 F. 2d 1337 (1st Cir. 1972) ; Mawson v. United States, 463 F. 2d 29 (1st Cir. 1972) (per curiam). In making such a determination the judge should consider, inter alia, the extent of the asserted procedural deficiency, the possibility of irreparable harm and the possible disruption of orderly agency administration. None of these factors is necessarily determinative; each should be considered in light of the circumstances of the particular case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713214. Public record. Not legal advice.