Loxley v. Chesapeake Hospital

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SIDNEY S. LOXLEY, M.D.,

Plaintiff-Appellant,

v.

CHESAPEAKE HOSPITAL AUTHORITY,

No. 97-2539

Defendant-Appellee,

and

CHESAPEAKE GENERAL HOSPITAL,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CA-97-658-2)

Argued: October 26, 1998

Decided: December 1, 1998

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in

which Judge Widener and Judge Williams joined.

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COUNSEL

ARGUED: Edwin Ford Stephens, CHRISTIAN & BARTON, L.L.P.,

Richmond, Virginia, for Appellant. Judith Bowles Henry, CREWS &

HANCOCK, P.L.C., Richmond, Virginia, for Appellee. ON BRIEF:

Hill B. Wellford, III, CHRISTIAN & BARTON, L.L.P., Richmond,

Virginia, for Appellant. Thomas F. Hancock, III, Jeannie A. Adams,

CREWS & HANCOCK, P.L.C., Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Dr. Sidney Loxley appeals the dismissal of his claim under 42

U.S.C. § 1983 that the Chesapeake Hospital Authority violated his

rights under the Due Process Clause in refusing to grant him full staff

privileges at Chesapeake General Hospital. We affirm.

I.

Dr. Loxley is an orthopedic surgeon who, in August 1992, held

unrestricted staff privileges at Chesapeake General ("Hospital") in

Chesapeake, Virginia. The Authority, which runs the Hospital, sus-

pended his privileges that month when it learned that he was having

an affair with a 17 year-old patient and prescribing birth control pills

to her. The State Board of Medicine soon thereafter suspended Lox-

ley's license, reinstating it without restriction in October 1994. Lox-

ley was convicted of contributing to the delinquency of a minor and

served six weeks in prison. He has not performed orthopedic surgery

at the Hospital since 1992.

Two and a half years later, in January 1995, Loxley applied for

new staff privileges. (The Authority had planned to reinstate Loxley

in August 1993, but could not do so because his license was still sus-

pended.). The first three committees to consider his application -- the

Surgery Department, the Credentials Committee, and the Medical

Executive Committee -- all recommended denying it. Loxley

appealed to an Ad Hoc Committee, which instead recommended

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granting him provisional privileges for one year (the standard period),

subject to several conditions, including that Loxley secure another

doctor to "proctor" his first five major surgeries and either secure a

proctor for or videotape the next five. The Authority adopted this rec-

ommendation in September 1995. Loxley wrote to the Surgery

Department Chairman, Charles McEnroe, that he "certainly" agreed

to all the conditions.

Meanwhile, Loxley obtained privileges at Norfolk Community

Hospital, the relevance of which we discuss below.

The following June, Loxley applied for reappointment at the Hos-

pital for 1996-97. Loxley, however, had not satisfied the proctoring

requirement imposed by the Hospital. Under the Hospital's Medical

Staff Bylaws, this failure could have justified automatically denying

his application, without any hearing or appeal. See Bylaws § 6.6.1

("Failure to provide adequate information to document compliance

with all qualifications . . . shall be grounds for automatic denial of

reappointment. Such action shall not be deemed `adverse action'"

under Article XI, which gives right to hearings and appeals); § 11.2(c)

(providing for hearing after denial of reappointment, "except as other-

wise provided by Section 6.6.1"). Instead of automatically denying

Loxley's application, though, the Surgery Department recommended

granting a second year of provisional privileges subject to the same

conditions as imposed for the first year. The Credentials Committee

and the Medical Executive Committee agreed.

Again Loxley appealed to an Ad Hoc Committee and again, after

a full hearing, the Committee relaxed the other committees' require-

ments for Loxley. Specifically, it added two modifications to mitigate

the proctoring requirement, which the Committee thought "serve[d] a

valuable and reasonable function" of facilitating the Hospital's evalu-

ation of Loxley "by direct observation," but which Loxley had

claimed he could not fulfill. First, the Committee expanded the num-

ber of possible proctors, allowing any "credentialed member of the

Medical Staff . . . (i.e., Active, Courtesy, or Provisional member)" to

proctor, rather than just Active Members. Second, it allowed Loxley,

as an alternative, to withdraw his application and join a residency pro-

gram "or program with like components" for a year, after which he

"would be eligible to reapply" for full staff privileges. The Authority,

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after a full hearing, adopted the Ad Hoc Committee's recommenda-

tion on April 29, 1997.

Loxley then sued the Hospital and the Authority,* alleging viola-

tions of state law and of the Due Process and Equal Protections

Clauses of the Fourteenth Amendment. The Authority, without

answering, filed a motion to dismiss, and joined to that motion both

the Bylaws and affidavits from various doctors and officials of the

Hospital. Loxley submitted the transcripts of the two 1997 hearings,

along with an affidavit from himself and one of his patients. Various

other materials, including affidavits, letters, and Findings of Fact and

Decisions from the 1997 Ad Hoc Committee and the Authority also

appear in the record before us, although there has been no official dis-

covery. The district court held that the Fourteenth Amendment

applied to the Hospital, which is a state entity, but that Loxley did not

have a protected property or liberty interest affected by the Authori-

ty's actions. It went on to dismiss Loxley's procedural due process

claim on summary judgment (in light of the parties' submissions) and

his substantive due process claim for failure to state a claim. Finally,

the district court dismissed the equal protection claim for failure to

state a claim and dismissed Loxley's pendent state-law claims.

Loxley appeals the district court's rejection of his due process

claims.

II.

We assume, without deciding, that the Authority has deprived Lox-

ley of a protected property or liberty interest under the Due Process

Clause. See Christhilf v. Annapolis Emergency Hosp. Ass'n., Inc., 496

F.2d 174 (4th Cir. 1974), overruled on other grounds, Modaber v.

Culpeper Mem. Hosp., Inc., 674 F.2d 1023 (4th Cir. 1982); Duffield

v. Memorial Ass'n. of Charleston, 361 F. Supp. 398 (S.D. W.Va.

1973), aff'd., Duffield v. Charleston Area Medical Center, 503 F.2d

512 (4th Cir. 1974). But see Randall v. United States, 30 F.3d 518

(4th Cir. 1994). We agree with the district court, however, that even

if the Authority did so, it did not violate Loxley's right to due process.

_________________________________________________________________

*The district court later dismissed the Hospital.

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This is true of both his procedural due process and"substantive" due

process claims.

A.

Notwithstanding the numerous hearings he received, Loxley makes

two arguments that the Authority violated his right to procedural due

process. We reject both, and affirm the district court's summary judg-

ment on this count.

First, Loxley charges bias. None of the doctors whom he claims

were biased, however, was involved in the decision on his applica-

tion. Loxley focuses on Drs. Richard Holden and Michael Romash,

suggesting a conspiracy on their part to undermine him, and attempts

to transform that conspiracy into "bias" by the Authority.

Loxley's own claims, however, undermine his allegation of a con-

spiracy. Holden and Romash are partners with Dr. Samuel Brown. In

January 1996, Dr. Brown wrote Loxley that he was willing to discuss

proctoring but needed more information, particularly about malprac-

tice coverage. Brown also warned that he did not perform all forms

of orthopedic surgery. Soon thereafter, Brown, at the urging of

Holden and Romash, withdrew this tentative offer. Holden and

Romash, in affidavits, say they were concerned about both liability

and "the potential impact on our professional reputations." Loxley

now claims that after this incident, "the pool of potential proctors

dried up," as numerous "maybes" became"nos." But, before the

Authority, Loxley testified that everyone except for Dr. Brown was

a definite "no" by the end of 1995, J.A. 251, before he had even heard

from Brown. Thus the actions of Holden and Romash with regard to

Brown appear not to have affected other doctors at all.

Even if we assume that Drs. Holden and Romash had an active ani-

mus toward Loxley, that cannot translate into bias that would violate

the Due Process Clause. Dr. Holden, although Chairman of the

Authority, recused himself from the Authority's discussions and deci-

sions on Loxley's fate in both 1995 and 1997. Both Holden's affidavit

and the transcript of the Authority's March 18, 1997, hearing so con-

firm. Dr. Romash, who allegedly made derogatory comments about

Loxley to Loxley's patients a few months after the Authority's deci-

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sion, appears not to have been a member of any of the numerous com-

mittees that evaluated Loxley's applications. He certainly was not on

the Ad Hoc Committees or the Authority. Finally, the assertedly

biased Authority gave Loxley more favorable treatment in both 1995

and 1997 than did three other subordinate committees (Surgery, Cre-

dentials, and Medical Executive).

In light of all this, there is no merit to Loxley's plea that he must

be allowed to depose Holden and others, see Fed. R. Civ. P. 56(f), or

that the district court improperly weighed evidence and evaluated

credibility in entering summary judgment. We further note that the

affidavit of Hospital-employee Leslie Phelps, on which Loxley

chiefly focuses, is irrelevant to our conclusion that no reasonable fact-

finder could find unconstitutional bias. While Loxley correctly

observes that a court considering a motion for summary judgment

should resolve all doubt in favor of the nonmovant, see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), there is simply no

doubt here.

Second, for the first time on appeal, Loxley argues that the Author-

ity relied on "secret" or extraneous evidence in 1997. If true, such

would be serious. See Christhilf, 496 F.2d at 177-78. But it is not.

The principal support for this claim fails when it is considered in

context. At the Authority's March 18, 1997, hearing, Loxley and

Benny Sessions, a non-doctor member of the Authority, discussed the

reasons for the Authority's suspension of Loxley's privileges in 1992.

Sessions said, "it seems also that we sat here, Doctor, and went

through volumes and volumes of cases of problems," to which Loxley

replied, "No, sir," and explained the allegations made in 1992. Ses-

sions responded, "But we discussed so many cases here that there was

some problems with," to which Loxley replied,"What other cases?"

The very fact of this discussion undermines Loxley's claim. Far

from hiding anything, Session was candid, admitted that he was "a lit-

tle confused" about events five years in the past, and allowed Loxley

to explain. Further, the presiding officer cut off Sessions' digression:

"Just to clarify what's going on here, we are trying to figure out his

current competency; so we're not going to go here and dig records of

-- this is not the reason we're here." The officer then ordered a five-

6

minute break, ensuring that Sessions (who did not speak again) would

be cut off. We can think of nothing that Sessions or the presiding offi-

cer could or should have done differently.

Loxley's reliance on Sessions' statements fails for two other rea-

sons. Sessions based his comments on his prior exposure to the case

(or at least thought he did), which precludes any finding of constitu-

tionally improper "bias." See Duffield, 503 F.2d at 517 ("[T]he bias

and familiarity with a case, which will disqualify,`must stem from an

extrajudicial source. . .'"). Cf. Woodbury, 447 F.2d at 845 ("The con-

sideration on a previous occasion of the plaintiff's qualifications

would not demonstrate such bias as to constitute a denial of due pro-

cess."). Further, the absence of Sessions' name from the Authority's

subsequent Findings of Fact and Decision suggests that he did not

even participate in the final decision. See J.A. 330 (¶ 8), 331.

B.

We also agree with the district court that the Authority did not vio-

late Loxley's right to "substantive" due process. Because the district

court considered matters outside the pleadings, however, we enter

summary judgment rather than affirming the district court's dismissal

for failure to state a claim.

Substantive due process review entails a consideration of the merits

of a hospital's decision rather than just the process by which the hos-

pital reached its decision. Evaluating a doctor's qualifications requires

medical expertise and involves the "overriding and compelling state

interest in safeguarding and protecting [ ] health, safety and lives."

Duffield, 361 F. Supp. at 401. Accordingly, such review is extremely

deferential. A hospital's refusal to grant staff privileges does not vio-

late the Constitution provided it

is based upon any reasonable basis, such as the professional

and ethical qualifications of the physicians or the common

good of the public and the Hospital. . . . The governing

board of a hospital must [ ] be given great latitude in pre-

scribing the necessary qualifications for potential applicants.

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Woodbury v. McKinnon, 447 F.2d 839, 845 (5th Cir. 1971) (citations

and internal quotation marks omitted). See Duffield, 361 F. Supp. at

404 ("Judicial review of the merits of internal hospital decisions is

strictly limited and the courts should not substitute their judgment for

hospital agency judgment."); Shahawy v. Harrison, 875 F.2d 1529,

1533 (11th Cir. 1989) ("[H]ospital boards possess broad discretion.")

(internal quotation marks omitted); Woodbury, 447 F.2d at 845 (hold-

ing that hospital satisfies substantive due process if its standards are

reasonable and "applied without arbitrariness, capriciousness or

unreasonableness.").

The Authority, in concluding that Loxley had not carried his bur-

den of establishing his competency, easily satisfied this standard, not-

withstanding Loxley's argument that the proctoring requirement is

unreasonable and impossible. First, Loxley himself, in his letter to Dr.

McEnroe in 1995, readily agreed to the proctoring requirement. As

Loxley no doubt realized, the requirement was clearly reasonable

when originally imposed, since he had performed no surgeries for

over three years.

Second, the Authority and the Ad Hoc Committee, in 1997, fully

considered Loxley's arguments that proctoring was impossible for

him, and gave reasonable explanations for rejecting them. See J.A.

278-79, 324-25. Again, Loxley's best evidence proves insufficient

when it is considered in context. At the Authority hearing, Dr. Car-

ideo, who had chaired the Ad Hoc Committee, explained his commit-

tee's reasoning:

We didn't think proctoring is such an unusual thing.. . . You

can't do things in hospitals unless your peers watch you and

make sure that you know what you're doing. . . .[I]t's no

more impossible for him to get a proctor to do something

than it is for any other person to get a proctor. Proctoring is

important. Not just to watch how you do something, but to

assess your character, type of person you are, the way you

work. . . . [T]o say that it's impossible and therefore it's

unreasonable, that doesn't hold. To me the onus falls on you

to get your peers to help you; and if all of your peers say,

I want no parts of you [sic], then I would ask why. Why?

8

What's the big conspiracy? Most doctors don't conspire to

give you a hard time.

This passage explains Carideo's additional comment that the proctor-

ing requirement "may be impossible. It's not unreasonable." This is

not inconsistent nonsense, as Loxley suggests, but rather an observa-

tion that if the requirement has proven impossible in practice, Dr.

Loxley himself has much to do with that, as the unwillingness of any-

one to proctor for him likely says something about his ability or char-

acter. We see nothing unreasonable in such a view.

Third, the Authority, in 1997, accepted the Ad Hoc Committee's

recommendation both to expand the pool of possible proctors and to

allow Loxley the alternative of a one-year residency program, even

though under the Bylaws the Authority could have summarily

rejected his application. Given that these changes relaxed the require-

ments that Loxley himself had agreed to, the feasibility of this alterna-

tive is irrelevant.

Fourth, the Authority was not unreasonable in viewing Loxley's

record at Norfolk Community Hospital as insufficient to establish his

competency in lieu of proctoring at the Hospital. The district court

found that Loxley "has successfully performed at least 60 surgeries at

Norfolk Community. [His] first six (6) months of surgeries at Norfolk

Community were subject to post-surgery document review and

deemed clinically competent." Dr. McEnroe, however, explained to

the Ad Hoc Committee in 1997 that the Hospital's Surgery Depart-

ment viewed these documents, which were Loxley's own notes from

operations, as "a subjective collection of data" needing corroboration

with direct "objective assessment" at the Hospital. Two doctors from

Norfolk have filed affidavits stating that, although Loxley seemed

competent to them, they had "performed no `proctoring' in the sense

of direct, constant supervision." One of them, Dr. Archer, is not board

certified, as the Authority requires for proctors, and the other, Dr.

Wright, is not an orthopedic surgeon. Norfolk also lacks the capacity

for all the forms of orthopedic surgery that the Hospital allows its full

staff members to perform.

Turning to the procedural matter, we agree with Loxley that the

district court, in dismissing this claim pursuant to Fed. R. Civ. P.

9

12(b)(6), improperly considered matters outside the complaint (as

does the Authority in urging affirmance). But that does not preclude

us from reviewing the district court's decision as one for summary

judgment and affirming on that ground, so long as we conclude that

Loxley "has been afforded the opportunity to respond in accordance

with Rule 56." Jackson v. Procunier , 789 F.2d 307, 310 (5th Cir.

1986). Loxley has received such an opportunity, since he has submit-

ted both the hearing transcripts and affidavits.

The procedural posture of this case closely resembles that in

Woodbury, where the Fifth Circuit found no error in the trial court's

denial of discovery requests and affirmed summary judgment against

a substantive due process claim on a record comprising "a transcript

of the hearing, affidavits and exhibits." 447 F.2d at 842. As the court

there explained, if a hospital has satisfied procedural due process, and

substantial evidence supports that hospital's decision, "that ordinarily

ends the matter." Id. at 846 (internal quotation marks omitted). So

here, where, as we have explained, the Authority's imposition and

continuation of the proctoring requirement were far from arbitrary,

capricious, or unreasonable. See 447 F.2d at 845.

None of the issues on which Loxley insists upon discovery would

alter this. For example, given that the proctoring requirement is rea-

sonable both on its face and as applied to Loxley, it is irrelevant

whether the Authority has required others to undergo proctoring. See

Woodbury, 447 F.2d at 842, 845-46. Although Loxley's affidavit

complains about the Authority not having produced"the Hearing

Record," we have before us both the transcripts of the relevant hear-

ings and the written decisions and findings of fact of those commit-

tees. Dr. Brown's letter withdrawing his tentative offer to proctor

does not, as Loxley alleges, contradict the affidavits of Brown,

Romash, Holden. There is therefore no reason to depose those three

individuals.

CONCLUSION

For the reasons stated, we affirm the district court's entry of sum-

mary judgment in favor of the Authority on Loxley's procedural due

process claim, and we enter summary judgment in favor of the

Authority on Loxley's substantive due process claim.

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The judgment of the district court is affirmed.

AFFIRMED

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