Balkissoon v. Capitol Hill Hospital

SCHWELB,

Associate Judge, dissenting:

I

I find myself in the rather odd position of agreeing with almost everything Judge Gallagher has written for the majority except the result. If Dr. Balkissoon had objected to the report of the Ad Hoc Committee (AHC) as inadequate and had demanded that the matter be, in effect, remanded to the AHC with directions to prepare a proper analysis, and if the Medical Executive Committee (MEC) had refused his demand and insisted on acting on the deficient report, then I would agree that Dr. Balkis-soon could argue persuasively that his rights under the by-laws had been violated.

In this unusual case, however, everything is topsy-turvy. It was the Hospital that wished to proceed in the correct man *311 ner, and which (I think unnecessarily) 1 requested Dr. Balkissoon’s counsel to agree to further proceedings before the AHC. It was Dr. Balkissoon who refused to consent, claiming implausibly through his counsel’s letter of May 26, 1982 that the hearing before the AHC had “exonerated him from any derogatory medical charges,” and that all his privileges should be restored forthwith. At oral argument, Dr. Balkissoon’s counsel acknowledged with commendable candor that he and his client had declined to go along with further proceedings before the AHC because they believed that the record as of the time of the defective report was more favorable to Dr. Balkissoon than it would have been after such contemplated proceedings. Having in effect insisted that the AHC report was exculpatory and that no further proceedings were necessary, I do not see how Dr. Balkissoon can now be heard to complain that there were no further proceedings.

Dr. Balkissoon’s claim in this court reminds me of what is, I hope, the apocryphal tale of the man who killed his mother and father and then pleaded for mercy on the grounds that he was an orphan. I think Judge Burgess’ remarks in granting summary judgment for the Hospital were right on target:

I would consider it to be the effect of a waiver in this case, that is to say it was presented to the doctor, we have something we think you’re entitled to under the Bylaws. We’re willing to write up a report and make our factual findings, do the right thing. Do you want us to do this, or are you willing to go on the record as is, and he wants to go on the record as is. He doesn’t want the process that, as Mr. Boone says, that may be due him. If he doesn’t want the process that may be due him, whatever his motivations are, and in this Mr. Boone says his motivations are that, as I understand it, he had a good recommendation, he then can’t come back and com-

plain.... And therefore, if he comes in later on, dissatisfied with the Board of Directors’ decision and says, I wasn’t accorded the process that I rejected, he’s not — he’s not as a matter of law, in my judgment, able to come in and say the Board of Directors was arbitrary. 2

This court has repeatedly held, in the somewhat analogous context of administrative agency proceedings, that where a parly has failed to challenge a ruling or procedure at the administrative level, he or she may not seek judicial reversal of that ruling. See, e.g., Arthur v. D.C. Examining Board, 459 A.2d 141 , 145 n. 3 (D.C.1983), and authorities there cited. Claims which are not made before the agency may not be presented for the first time to the reviewing court. Plaquemines Port v. Federal Maritime Com’n, 267 U.S.App.D.C. 238, 253 , 838 F.2d 536 , 551 (1988) (Bork, J.). In this case, Dr. Balkissoon not only neglected to challenge the failure to conduct further proceedings before the AHC, but insisted that none be conducted. I submit that the reasoning of Arthur and Plaquemines Port applies a fortiori.

II

In principle, I agree that if something has been done in the wrong way, then the mistake should be corrected even belatedly. I do think it worth noting the practical consequences of the court’s decision.

My review of the file indicates that the Medical Director of the Hospital first contacted Dr. Balkissoon about the alleged irregularities on February 1, 1980. The monitoring of his admissions began three days later. More than nine years after these events, the court is directing that proceedings resume as of April 2,1982, the date of the inadequate AHC report. Even assuming that all of the players are still in place (or that others can readily be found in their stead), the reconstruction of the conduct that led to the sanctions against Dr. *312 Balkissoon will not be easy. Moreover, if events progress no more rapidly the second time from that point of departure, we might be deciding a second appeal in or about 1995.

Obviously, litigation delays do not provide a basis for affirming a decision if it is indeed wrong. In this case, however, I believe not only that Judge Burgess was right as a matter of law but also that his decision, if upheld, would contribute to the just, (relatively) speedy, and (I hope) less expensive resolution of this protracted controversy.

Ill

Judge Gallagher’s lucid analysis of the scope of judicial review in this kind of case, and of the public interest in hospital staffing decisions, has made a substantial contribution to an area of the law in which there is little precedent in this jurisdiction. Nevertheless, for the reasons described above, I respectfully dissent.

. Although it may have been unnecessary for the Hospital to seek Dr. Balkissoon’s consent, my point is that the doctor, having opposed the procedure, cannot complain that it was not followed.

. Or, more specifically, not in compliance with the by-laws.