Hottentot v. Mid-Maine Medical Center

HORNBY, Justice,

with whom McKUSICK, Chief Justice, joins, concurring.

The central issue of this case is whether we should exercise our undoubted authority to create a new common law cause of action. Although I agree with the result the Court reaches, I do not agree that judicial prudence dictates that we examine the question solely in terms of whether our case matches New Jersey precedents. 1 Instead, I believe that we should make our own analysis within the context of circumstances here in Maine.

The Plaintiffs argument for a new cause of action recalls an earlier era when the courts created remedies against innkeepers and common carriers to ensure that they provided service without discrimination. See generally Wyman, The Law of the Public Callings as a Solution to the Trust Problem, 17 Harv.L.Rev. 156 (1904). In the case of innkeepers judicial intervention enabled travelers to find a secure lodging in situations where there was often only one inn available. In the case of common carriers a similar principle was at stake, namely, the carriers’ ability to monopolize the means of shipping goods to market. But in both instances judicial intervention was necessary because these industries were then virtually unregulated.

Private hospitals in Maine in the 1980’s are, by contrast, extensively regulated. The Maine Human Rights Act, for example, prohibits all forms of invidious discrimination on bases such as race, sex and religion. 5 M.R.S.A. §§ 4551-4632 (1979 & Supp.1987). This statute encompasses hospital admissions, employment decisions, and staff privileges. State antitrust law prohibits attempts to monopolize commerce. 10 M.R.S.A. § 1102 (1980). This statute likewise encompasses hospitals and prohibits any attempt to exclude competing doctors from economic benefits. Maine’s hospital licensing statute specifically regulates the activities of hospitals, and does so in detail. 22 M.R.S.A. §§ 1811-1827 (1980 & Supp.1987). Under its authority the Department of Human Services has promulgated regulations imposing limits on what hospitals can do in the specific area of staffing privileges. (Portions of “Regulations for The License of General and Specialty Hospitals in the State of Maine” are quoted by the Court in discussing whether Dr. Hottentot has a cause of action for their breach.) Finally, many kinds of extensive and detailed regulations have been imposed on hospitals through the federal government and the state government as a result of the Medicare and Medicaid Programs. See, e.g., 42 U.S.C.A. §§ 1302 , 1312, 1320a-2(a) (1983 & Supp.1988); 22 M.R.S.A. §§ 3172-3188 (1980 & Supp.1987).

I believe that we should examine the question whether to create a new cause of action against this background of extensive involvement by other agencies of government, a background that exists for hospitals both with monopoly power and without. Despite this extensive involvement, the legislative and executive branches have not been prompted in the area of medical staff exclusions to go beyond the licensing *370 standards described by the Court. I would rest our decision on that basis, not on the failure of proof of monopolization. When the legislature passes a statute, we do not lightly assume that a new cause of action should be recognized to enforce it. Instead we wait for an expression of intent that the statute contemplates a private cause of action. Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d. 97, 101 (Me.1984). When the legislative and the executive branches have the extensive involvement they do in this area and yet have declined to provide judicial remedies for grievances such as Dr. Hottentot’s, I believe that we should likewise stay our hand as a common law court. The appellate process provides only a limited insight into whether staff exclusion is a problem in Maine.

Consequently, I agree that we should not create a new cause of action, but conclude that it is ill-advised to approach the issue on a case-by-case basis, holding open the possibility of granting more protection in some eases than the legislature and executive have already provided. We do the practicing bar and its clients who pay the bills no service in fostering this sort of uncertainty. I would hold, therefore, that the common law cause of action does not exist in Maine, regardless of the monopoly factor.

As to the other issues, I concur fully in the Court’s reasoning.

. Other jurisdictions have created the cause of action without finding the monopoly power the Court deems critical. E.g., Anton v. San Antonio Community Hospital, 19 Cal.3d 802 , 140 Cal.Rptr. 442 , 567 P.2d 1162 (1977); Silver v. Castle Memorial Hospital, 53 Haw. 475 , 497 P.2d 564 (1972); Hawkins v. Kinsie, 540 P.2d 345 (Colo.App.1975).