Opposition Brief — Toussaint v. Laurens County Health Care System

Supreme Osat, U.S.

0 EILED

JAN 4 1989

IN THE UNITED STATES SUPREME 90883H F- SPANIOL, JR.

ar,

Case No.88-957

TERM: October, 1988

Vincent S. Toussaint, M.D.,

Petitioner -vs-

Laurens County Health Care System

Russell Emerson, Edward M. Corley,

Walter A. Sigman, W. Paul Culbertson,

L. W. McClain, Michael R. Meeks,

James L. Walker, Reese Young, James G.

Ferguson, W. M. Wiley, individually and

in their official capacity as members of

the Board of Directors of Bailey Memorial

Hospital, and Clem P. Ham, individually and

in his official capacity as Administrator

of Bailey Memorial Hospital, Akhtar

Hussain, M.D., individually and in his

official capacity as Chief of the Medical

Staff at Bailey Memorial Hospital and as

a member of the Executive Committee of

Bailey Memorial Hospital, Bruce Marshall,

M.D., individually and in his official

capacity as a member of the Executive

Committee of Bailey Memorial Hospital,

Stephen Ramsay, M.D., individually and in

his official capacity as a member of the

Executive Commitee of Bailey Memorial

Hospital and as Chief of Service for

Pediatrics, Respondents

—

RI IN OPPOSITIO O PETITION FOR

WRIT OF CERTIORARI

HAYNESWORTH, MARION McKay & GUERARD

O. G. Calhoun and G.Dewey Oxner, Jr.

P. O. Box 2048

Greenville, South Carolina

Telephone: (803) 240-3400

CULBERTSON, WHITESIDES AND TURNER

P.O. Box 54

Laurens, South Carolina 29360

Telephone: (803) 984-6565

TABLE OF CONTENTS

Page

TABLE OF AUTMORITIES . . ». « « shi, 144

Sincere GF CASE Ss ps 6 eee aww J

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APPENDIX ... . . A-i, A-ii,A-iii,A-iv

(Order not included by Petitioner)

TABLE OF AUTHORITIES

Page

Statutes: 42 U.S.C. 1983 re |

18,21

Federal Rules of Civil Procedure

Rule 52Z(a) of the Federal Rules of Civil

Procedure a Re PE LS

Rule 52(b) of the Federal Rules of Civil

Procedure 3

Cases

1. Anderson v. City of Bessemer,

North Carolina (1985) 105 S.Ct.

1504, 84 L.Ed. 2nd 518 7

2. Battle v. Jefferson Davis Memorial

Hospital, 451 F.Sup. 1015, 10Q25(S.D.

Miss. 1976), Af£'d, 575 F.2d 298

(Fifth Circuit 1978) 15

3. Christliff v. Annapolis Emergency

Hospital Association, Inc. 496

F.2d. 1/4 (Fourth Circuit 1974) 18,20

4. Dominguez v. Beame, 603 F.2d 337

(1979) 18

5. Gibbs v. Norfolk Southern Railway

4/4 F.2d 1341 (CA 4th 1973) 8

6. Inwood Laboratories v. Ives

Laboratories (1982) 456,

‘ suns 26Ge,

72 L.Ed. 2d 606 6

7. Kersey v. Shipley, 673 F.2d 730

(Fourtn Circuit 1982) 19

8. Klinge v. Lutheran Charities Asso-

clation 3235 F.2d 56 (Eighth Circuit

1975) i389

ii

10

11

bé«

13

14

15

- Mathews v. Eldridge, 424 U.S.319

(1975)

-Moore v. Board of Trustees

88 Nev.20/7,495 P.2d 605, Cert.

Denied, 409 U.S. 879, 93 S.Ct.85

-Rizzo v. Goode, 423 U.S.362,370-

» 9% §.Ct.598,46 L.Ed.

2d 561 (1976)

Sosa v. Board of Managers of Val

Verde Memorial Hospital

437 F.2d 173, 177, (Fifth Circuit

1971)

-United States v. National Asso-

ciation of Real Estate Boards

y ce

711, 94 L.Ed.1007

-United States v. Oregon State

Medical Society (1952) 343 U.S.

348, ta Beue 590, 96 L.Ed.2d 978

-United States v. United States

Gypsum Company 333 U.S. 364,

3: SGC. S55 92 L.ed. 746(1948

iii

19

14

18

14

STATEMENT OF THE CASE

The Laurens County Health Care

System is a governmental entity and

political subdivision of the State of South

Carolina. The Health Care System is

governed by a Board of Directors who are

named as Defendants in the within action.

The System was established in 1982 by the

merger of the Clinton Hospital District

where the Bailey Memorial Hospital is

located and the Laurens Hospital District

wherein the Laurens District Hospital is

located. Dr. Vincent Toussaint has had

staff privileges at Bailey Memorial

Hospital since 1976. Dr. Toussaint

practices general surgery and general

practice in Clinton, South Carolina. His

record portrays a disconcerting history of

disruptive activity within the hospital,

questionable patient care, findings of

unjustified surgical procedures, violations

of rules and regulations, deficient record

keeping and alteration of records.

This action was instituted by Dr.,

Toussaint in December, 1986 when his staff

privileges at Bailey Memorial Hospital were

suspended as a result of unjustified

mastectomys on three adolescent males and

due to his having discharged a patient who

died several hours after discharge without

Dr. Toussaint ever having seen or examined

the patient prior to discharge. Dr.

Toussaint's complaint alleged violation of

42 U.S.C. 1983, anti-trust violations and

several pendant state claims. The

Defendants in due time answered and later

filed a Motion for Summary Judgment as to

all causes of action for alleged anti-trust

violations. The Motion for Summary

Judgement was argued on October 6, 1987 and

by Order filed October 21, 1987 the Court

granted the Defendant's Motion for Summary

Judgment as to all anti-trust claims.

(R.72-89).

ey ee ee

The case was tried before the

Honorable G. Ross Anderson, Jr. in

Anderson, South Carolina without a jury on

October 21, 22, and 23, 1987. An Order was

filed by Judge Anderson on November 24,

1987 granting judgment to the Defendants on

all causes of action. (A.18).

Thereafter, Dr. Toussaint filed a

Motion pursuant to Federal Rules of Civil

Procedure 52(b) to delete, amend, clarify

and/or correct certain specified findings

of fact in the Court's Order of November

24, 1987. After oral arguments an Order was

issued on March 31, 1988 amending one

sentence of the Order and denying the

further requested amendment. (R.154-155).

Thereafter, Dr. Toussaint

appealed the District Court Decision to the

United States Court of Appeals for the

Fourth Circuit. By Decision dated

September 7, 1988 the Court of Appeals for

the Fourth Circuit affirmed the Decision of

the District Court.

ARGUMENT

I

THE FINDINGS OF FACT OF THE DISTRICT COURT

ARE CLEARLY SUPPORTED BY THE RECORD

SUMMARY OF ARGUMENT

The Petition for Writ of

Certiorari must be denied because there is

no conflict among the Circuits concerning

the scope of review under Rule 52(a). The

law is clear from long established

principles that the Findings of Fact of the

Trial Judge can not be set aside unless

clearly erroneous and the Court must give

due regard to the opportunity the Trial

Court had to judge the credibility of the

witnesses.

ARGUMENT

In the United States v. United

States Gypsum Company, 333 U.S. 364, 68

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S.Ct. 525, 92 L.Ed. 746(1948), the Supreme

Court set forth the scope of appellate

review under Rule 52(a):

"That rule prescribes that findings of

fact in actions tried without a jury

shall not be set aside unless clearly

erroneous and due regard shall be given

to the opportunity of the Trial Court to

judge the credibility of the witnesses.

It was intended, in all actions tried

upon the facts without a jury, to make

applicable the then prevailing equity

practice. Since judicial review of

findings of trial courts does not have

the statutory or constitutional

limitations of findings by

administrative agencies or by a jury,

this Court may reverse findings of fact

by a trial court where ‘clearly

erroneous'. The practice in equity

prior to the present rules of civil

procedure was that the findings of the

trial court when dependent upon orai

testimony where the candor and

credibility of the witnesses would best

be judged, had great weight with the

Appellate Court. The findings were

never conclusive, however. A finding is

‘clearly erroneous' when although there

is evidence to support it, the reviewing

Court on the entire evidence is left

with a definite and firm conviction that

a mistake has been made."

Furthermore, a reviewing court

may not set aside a finding of fact merely

because it would have viewed the facts

differently or given more weight to

evidence than did the trial court. In the

case of Inwood Laboratories v. Ives

Laboratories (1982) 456 US 844, 102 S. Ct.

2182, 72-L.ed. 2d 606, the Supreme Court

held that in a trademark violation action

the Court of Appeals erred in rejecting

findings of fact simply because it would

have given more weight to evidence of

mislabeling than did the trial court.

Further in the case of United States v.

National Association of Real Estate Boards

(19350) 339 US 485, 70 S.Ct. 7il, 94 L.Ed.

1007, it was held that it was not enough

that we might give the facts another

construction, resolve the ambiguities

differently and find a more sinister cast

to actions which the District Court

apparently deemed innocent. The court

there stated that, "We are not given those

chdices because our mandate is not to set

aside finding of fact unless clearly

erroneous."

In the case of Anderson v. City

of Bessemer, N.C. (1985) 105 S.Ct. 1504, 84

L Ed. 2d 518, the Supreme Court held that

under the deferential standard of review

imposed by Rule 52, a fact finders choice

between two reasonable interpretations of

the evidence cannot be held clearly

erroneous. Further, the Court held that due

regard shall be given to the opportunity of

the trial court to judge the credibility of

the witnesses and when oral testimony has

been heard by the trial court, the

reviewing court should be particularly

reluctant to upset findings of fact.

In the case of United States v.

Oregon State Medical Society (1952) 343

U.S. 226; 72 8.Ct. 690, 96 L. Ed. 2d 978,

the court in regard to the scope of

appellate review under Rule 52(A) stated

that there are no cases more appropriate

ee

for adherence to this rule than those in

which the complaining party creates a vast

record of cumulative evidence as to long

past transactions, motives and purposes,

the effect of which depends largely on

credibility of witnesses.

Clearly a strong presumption

snl tie Seale 6 aa i haat

exists in favor of the trial court's

findings of fact and the burden of proof is

on the party attacking their validity. See

Gibbs v. Norfolk Southern Ry (CA 4th 1973)

474 F 2d 1341.

Under the above stated guidelines

a thorough review of the record of these

proceedings establishes without question

that the findings of fact by the District

Court cannot be held clearly erroneous. se

The credibility of the witnesses in this

case was extremely important and due regard

must be given to the opportunity the trial.

judge had to assess the credibility of the

witnesses. This is particularly true in

iin

light of this case where Dr. Toussaint

admittedly altered medical records in an

attempt to justify his actions (R 71/-719)

and where his credibility has been called

into question by other agencies reviewing

his records and testimony on other

occasions (R 1142; 1407; 1415).

After the issuance of the order

by the District Court, the Petitioner filed

a motion pursuant to Rule 52 to amend the

findings of fact on two issues. Pursuant

to this motion the Court issued an Order on

March 31, 1988 amending one sentence in

Paragraph 14 of the Court's Order of

November 24, 1987. The Petitioner never

submitted further evidence in support of

his position as requested by the Trial

Judge pertaining to the finding that

Toussaint admittedly altered the medical

records and, therefore, no further

amendment was granted. The findings of fact

of the Trial Judge are clearly and

completely supported by the record.

There is no conflict whatsoever

among the Circuits concerning the scope and

application of Rule 52(a). Thus no

occasion is given for this Court to review

this Decision on the basis of a conflict

among the Circuits concerning the scope and

application of the Rule. Further, there is

a critical credibility issue in this case

due to the admitted alteration of records

by Dr. Toussaint. Therefore, the ability

of the Trial Court to Judge the credibility

of the witnesses, especially the

Petitioner, must be given great weight.

There is clearly no evidence to persuade

the Court that a mistake has been committed

in the findings of fact which would entitle

the Petitioner’to a review by this Court.

i

THE TRIAL COURT CORRECTLY DECIDED THAT THE

PLAINTIFF WAS AFFORDED DUE PROCESS AND

FAILED TO SUSTAIN HIS CAUSE OF ACTION FOR

wiePiss

VIOLATION OF 42 U.S.C. 1983.

SUMMARY

The Petitioner's due process

rights were faithfully observed even to the

extent that he was allowed to handpick a

special hearing committee to conduct his

peer review. There is no basis for review

in a case such as this where an incompetent

physician has been properly disciplined and

the Trial Court's Decision is in accordance

with the rulings in other Federal Circuits.

Further, the Court should not attempt to

minutely codify the requirements and

regulations of medical practice as the

Plaintiff requests and substitute its

evaluation of medical peer review for

hospital boards who are charged with such

responsibility.

ARGUMENT

This case affords no occasion for

review by this Court on the basis of

conflict among the Circuits. The Fifth

Te

Circuit, Eighth Circuit and Fourth Circuit

all are in accord that hospital staffs can 2

not presribe the exact rules covering all |

phases of medical care with precision and

exactness. The absurdity of the

Petitioner's argument is readily apparent.

Dr. Toussaint would ask this Court to

minutely codify each requirement for a

doctor to the extent that a doctor must see

a patient before he can examine such

patient or that you must not falsify or

alter your ee records as did Dr.

Toussaint and submit them to a peer review

committee as the original records.

This point was concisely covered

in the findings of the special ad hoc

hearing committee handpicked by Dr.

Toussaint when it issued its recommended

decision. There the committee stated,

"Much has been said about standards of

practice. The committee accepts a

definition of a standard of medical

site Sins

practice as being that manner of care or

degree of skill which would be rendered by

a reasonable physician under the same or

similar circumstances. To the members of

this committee, Dr. Toussaint has been

charged with violating two standards of

practice that are so basic to the practice

of medicine that it is unlikely anyone

would bother to write them down, namely,

Every surgical procedure will be

justifiable and appropriate and no patient

will be discharged without being seen and

examined by the attending physician."

(R.1-752).

As has been stated in a number of

cases, in the area of personal fitness for

medical staff privileges, precise standards

are difficult to articulate. The

subjectives of selection simply can not be

minutely codified. Also, detailed

description of prohibited conduct is

difficult in view of the rapidly shifting

a

standards of medical care and the fact that

human lives may be involved in the ultimate

decision of the Board. See Sosa v. Board 4

of Managers of Val Verde Memorial Hospital,

Moore v. Board of Trustees, 88 Nev.207, 495

437 F.2d 173, 177 (Fifth Circuit 1971); .

|

:

|

P. 2d 605, Cert. Denied, 409 U.S. 879, 93

S.Ct .85.

"After all, the law, as the

District Judge held, does not require the

hospital staff to prescribe exact rules

covering all phases of medical care with

precission and exactness. This was

declared authoritatively in Sosa v. Board

of Manager of Val Verde Memorial Hospital,

supra:

No court should substitute its

evaluation of such matters for that of

the Hospital Board. It is the Board,

not the court, which is charged with the

responsibility of providing a competent

staff of doctors. The Board has chosen

to rely on the advice of its Medical

Staff, and the court cannot surrogate

for the Staff in executing this

responsibility. Human lives are at

=14-

ll

stake, and the governing board must be

given discretion in its selection so

that it can have confidence in the

: competence and moral commitment of its

staff. The evaluation of professional

i proficiency of doctors is best left to

the specialized expertise of their

peers, subject only to limited judicial

surveillance. The court is charged with

the narrow responsibility of assuring

that the qualifications imposed by the

Board are reasonably related to the

operation of the hospital and fairly

administered. In short, so long as

staff selections are administered with

fairness, geared by a rationale

compatible with hospital responsibility,

and unencumbered with irrelevant

considerations, a court should-not

interfere. Courts must not attempt to

take on the escutcheon of Caduceus.

Sosa has been repeatedly cited as precedent

on this point. See Klinge v. Lutheran

Charities Ass'n., 523 F. 2d 56, 62 (8th

Cir.1975); Battle v. Jefferson Davis

Memorial Hospital, 451 F. Supp. 1015, 1025

(S.D. Miss. 1976), aff'd, 575 F.2d 298 (5th

Cir. 1978), among others. The standards of

evaluating the plaintiff's performance in

this context were observed by the Committee

herein. The plaintiff presented evidence

both before the peer committee and before

~~

this Court which was addressed directly to

the factors stated by the peer committee as

the standards of care applied by it in its

decision herein. He is in no position to

contend that he was in any way pre judiced

in the slightest by a want of understanding

of the standards of care which cdaettuced

the charges against him. Any claim of a

denial of substantive due process herein is

without merit.

As the district court has painstakingly

outlined in its opinion, the plaintiff's

procedural due process rights were

faithfully observed." (J.A. 13-15).

Unfortunately, Dr. Toussaint is a

physician who has been a constant source of

difficulty throughout his medical career,

not just with these defendants, but with

almost everyone in the medical community

with whom he has come in contact.(R.1144;

140751415;1421). The evidence submitted byDr.

Toussaint himself in the trial of this case

=o

exemplifies his problems. Dr. Raymond

Ramage, a Physician who taught the

Plaintiff in his residency program, stated

in an interview on November 30, 1978 as

follows: "Dr. Ramage stated that Dr.

Toussaint had been a constant source of

trouble during the entire time that he was

a resident at Greenville General

Hospital.... He was disorganized and could

not plan his work properly and frequently

tied up the surgical facilities

unnecessarily delaying other doctors with

their surgery. Dr. Toussaint could not

reach logical conclusions when presented

with the medical facts and, therefore, it

was questionable whether Dr. Toussaint

should be certified even after he had

finished his final year of residency....

Dr. Ramage further stated that he would not

again turn out anyone like this."

(R.1459).

Dr. Toussaint is simply not

el

entitled to the relief which he has

requested and he has failed entirely to

sustain his claim of violation of 42 U.S.C.

1983. In order for a governmental entity

to be liable for its own violations, the

Plaintiff in a Section 1983 action bears

the burden of showing that the governmental

entity maintained or practiced an

unconstitutional or unlawful policy or

custom and that the policy or custom caused

or was the moving force behind the

violation. Dominguez v. Beame, 603 F.2d

337(1979); Rizzo v. Goode, 423 U.S. 362,

370471, 375, 3475 Fe G.~CO.598, 46 1.84. 24,

561 (1976).

A doctor has no constitutional

right to practice medicine in a public

hospital; however, the provisions of the

Fourteenth Amentment must be met in

granting or revoking a physician's staff

membership. Christliff v. Annapolis

Emergency Hospital Association, Inc., 496

|

F.2d. 174 (Fourth Circuit 1974). While a

physician must be accorded reasonable

notice of the charges against him and a

fair opportunity to be heard with respect

to those charges before a panel of fair :

minded doctors, the courts have held that a

physician is not entitled to a full-blown

judicial trial. Klinge v. Lutheran

Charities Association of St. Louis, 523

F.2d. 56 (Eighth Circuit 1975).

Due process, furthermore, does

not always require a hearing prior to the

deprivation, for the exigencies of the

situation and the fact that any due process

concerns can be properly addressed by a

post deprivation hearing may justify

conducting a hearing after the deprivation.

Matthews v. Eldridge, 424 U.S. 319 (1975);

Kersey v. Shipley, 673 F.2d 730 (Fourth

Circuit 1982). Because poor mediical care

and judgment pose such a great 1s to the

public, the suspension of a physician's

= Fe

hospital privileges has been recognized as

a situation where a post deprivation

hearing is justified. Christliff v.

Annapolis Emergency Hospital Association,

Inc., supra.

The decision of the trial Court

and the Fourth Circuit Court of Appeals

that the Petitioner's due process rights

Wee observed should be affirmed and the

Petition for Writ denied. The Petitioner

has been afforded more due process than the

law requires and the requested relief of

this action to minutely codify the exact

requirements of all aspects of the medical

profession is without merit.

CONCLUSION

The law is clear from long

established principles that the findings of

fact by the trial Judge can not be set

aside unless ‘clearly erroneous' and that

the court must give due regard to the

Opportunity the Trial Court had to judge

mee

the credibility of the witnesses. There is

no conflict among the Circuits concerning

the scope and application of Rule 52(a).

Therefore, Petitioner has presented no

valid reason for the granting of the

Petition for Writ of Certiorari on this

basis.

Further, the evidence clearly

documents that the Petitioner's due process

rights were faithfuily observed and there

was no violation of 42 U.S.C. 1983. The

Petitioner's request that this Court

minutely codify standards of practice for

the medical profession and require hospital -

staffs to prescribe exact rules covering

all phases of medical care with precision

and exactness is clearly without merit and

would be deleterious to the medical

profession and our society.

It is, therefore, respectfully

submitted that the Petition for Writ of

Certiorari should be denied.

= D2n

Date:

12/26/88

Respectfully submitted,

HAYNESWORTH, MARION, McKAY AND

GUERARD

O. G. Calhoun

G. Dewey Oxner, Jr.

P. O. Box 2048

Greenville, S. C. 29602-2048

(803) 240-3400

CULBERTSON, WHITESIDES AND TURNER

J. Michael Turner

P. O. Box 54

Laurens, South Carolina 29360

(803) 984-6565

ye

saa APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Vincent S. Toussaint, M.D.,

Plaintiff,

vs.

ORDER

Laurens County Health Care

System, et al., 86-3165-3

Defendants.

eee eee ee ee Se”

This matter is before the court

on motion of plaintiff pursuant to Fed. R.

Civ. P. 52(b) to delete, amend, clarify

and/or correct certain specified findings

of fact in this court's order of November

24, 1987. After thoroughly reviewing the

record, and briefs filed by both parties

and after hearing oral arguments on this

motion, the court hereby orders that

sentence five (5) of paragraph fourteen

(14) of this court's order of November 24,

19878 shall read as follows:

Evidence submitted by the plaintif

substantiated that in one proposed

audit conducted by the Upper Regional

Savannah Audit Committee on a regionwide

basis seventeen of twenty-five surgical

procedures performed by Dr. Toussaint

were found to be unjustified.

Footnote 1: Testimony of Dr. Baker

indicated that the audit on

splenectomies was ultimately rejected by

both Bailey Memorial Hospital and the

P.S.R.O. Certainly this action further

evidences that there was no conspiracy

against Dr. Toussaint with regard to the

audit process.

The plaintiff also requests that

paragraph twenty-eight (28) of this order

be amended. At the hearing on this motion

on February 24, 1988, the court informed

the plaintiff's attorneys that it would

consider any relevant portions of the

record supporting the request for amendment

of this paragraph which they wanted to

submit subsequent to the hearing. No

additional information has been submitted

to this court. Therefore, after reviewing

the trial notes, the memorandum submitted

by both parties in response to this motion,

A-iii

and the arguments proferred at the hearing,

the court is of the opinion that paragraph

twenty-four (24) is supported by sufficient

evidence introduced at trial.

THEREFORE, IT IS HEREBY ORDERED

that sentence five (5) of paragraph

fourteen (14) of this court's order of

November 24, 1987 shall be amended as

stated in this order.

IT IS FURTHER ORDERED that

paragraph twenty-eight (28) of the order of

November 24, 1987 shall not be amended.

IT IS SO ORDERED.

/S/ G. Ross Anderson, Jr.

G. Ross Anderson, Jr.

United States District Judge

Anderson, South Carolina

March 31, 1988.