Petition — Rentschler v. Freeman

In the Supreme Court":

OF THE

United States

OctToBerR TERM, 1979

N79 =-72E

EvceNE H. RENTSCHLER,

Petitioner,

VS.

Donap H. FREEMAN, et al.,

Respondent.

PETITION *‘OR WRIT OF CERTIORARI

to the California Court of Appeal,

First Appellate District, Division Four

(aby hh rp, ] . % Danie. U. SMITH

1050 Northgate Dr., Suite 180

San Rafael, Ca. 94903

Telephone: (415) 472-4441

Vernon L. BRADLEY

1050 Northgate Dr., Suite 180

San Rafael, Ca. 94903

Telephone: (415) 472-4441

Attorneys for Petitioner

BOWNE-PERNAU WALSH e 1045 SANSOME ST. ¢@ S.F., CA 94111 ® (415) 981-7882 -

SUBJECT INDEX

Page

ST I Eagan 1

SST. ES eee ee "2

Questions presented for review ...................-.-.005 3

Constitutional and statutory provisions involved ............ 3

ER 4

SOO ee ee eee eee 10

ER SS A a 14

TABLE OF AUTHORITIES CITED

Cases

American Ry. Exp. Co. v. Levee (1923) 263 U.S.19......... 2

Birnbaum v. Trussell (2d Cir. 1966) 371 F.2d 672 ........... ll

Board of Regents v. Roth (1972) 408 U.S. 564 .............. 9

Christhilf v. Annapolis Emergency Hospital Ass’n, Inc. (4th

a I id arta suls Viale be vdieo lw b Vino ao 10

Citta v. Delaware Valley Hospital (E.D. Pa. 1970) 313 F.

a ia inks hain ays 4 5x fr ny 8 0 = os 11

Duby v. American College of Surgeons (7th Cir. 1972) 468

EE ESET os ae Spe on ll

Duffield v. Charleston Area Medical Center, Inc. (4th Cir.

1974) 503 F.2d 512 ............. bil Maree dey aktibed: >) 10, 11

Gee w nes Cuero) Gee Wie. Gee... .... 6.2... eee. 13

In Re Henley (1970) 9 Cal.App.3d 924 ..................... 2

Hortonville District v. Hortonville Ed. Ass'n (1975) 426 U.S.

EE, So Stn g high bie Wa.g.6'blive 0's

Imbler v. Pachtman (1976) 424 U.S. 409 .................. 9

Jackson v. Fulton-DeKalb Hospital orp (N.D. Ga. 1976)

423 F.Supp. 1000, affd 559 F.2d 1214 (5th Cir. 1977) ..... 11

Kaplan v. Carney (E.D. Mo. 1975) 404 F.Supp. 161 ....... 11

Klinge v. Lutheran Charities Ass'n of St. Louis (8th Cir. 1975)

er SNAKE, ay bv WA Hodes ose bs 11

Laje v. R. E. Thompson General Hospital (5th Cir. 1977) 564

ASE OE ig ENS ES ee 10

Lone Star Gas Co. v. State of Texas (1938) 304 U.S.224.... 2

Mathews v. Eldridge (1976) 424 U.S.319.... ... ee

Meredith v. Allen County War Memorial Hospital Commission

Eg eee 11

Milford v. People’s Community Hospital Authority (1968) 308

a an CEE ee Sree Si Fr 11

Navato v. Sletten (8th Cir. 1977) 560 F.2d 340 .............. 10

il

TABLE OF AUTHORITIES CITED

CASES

Page

Peacock v. Board of Regents of University and State Colleges

of Arizona (9th Cir.) 510 F.2d 1324, cert. den. 422 U.S.

IN oar to ta eee en Meek ll

Poe v. Charlotte Memork ‘! Hospital, Inc. (W.D.N.C. 1974) 374

F.Supp. 1302 ..... ll

Shaw v. Hospital Authority of Cobb County (5th Cir, 1971)

507 F.2d 625 ..... 10

Sosa v. Board of Manager of Val Verde Memorial Hospital

tbe ys oR Sb Say een oe ee 10

Stretten v. Wadsworth Veterans Hospital (9th Cir. 1976) 537

RD Se ih te aI dt ng Bar a a oe LT Se a ll

Suckle v. Madison General Hospital (W.D. Wis. 1973) 363 F.

Supp. 1196, aff'd 499 F.2d 1364 (7th Cir. 1974) ............ ll

Westlake Community Hospital v. Superior Court ers 17

I Ne nk ITS a aaa casa a alge 5 f 8

Wood v. Strickland (1976) 420 U.S. 308 ................. ek

Woodbury v. McKinnon (5th Cir. 1974) 447 F.2d 839 .. ... 10

Constitution

United States Constitution:

Fourteenth Amendment, Section] .. .................... 3

Rules

United States Supreme Court Rules:

DE EO esas bcs a aa ARS Aah! ee 2

Se ee) 08 0a A Gg ee Gla Be sei Yokes 1

Statutes

California Code of Civil Procedure:

SOO RAT tea Riera hes cceeey LBs 8

California Health & Safety Code:

crate os awe cate het eee Ca ee 5

I fe Sacre a he eee ee ere te aed ee 3,4

ei ah ara ae epic diate Ry yale rel ca oe a ag 7

Bee Sr, I BE PD ke aac pak s sx eben ae dace 2

ee rs I I eo, apes. jabs bas ek een 3, 8

In the Supreme Court

OF THE

United States

OctoBerR TrRM, 1979

No.

EuGENE H. RENTSCHLER,

Petitioner,

vs.

Donap H. FREEMAN, et al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the California Court of Appeal,

First Appellate District, Division Four

Petitioner prays that a writ of certiorari issue to review

the judgment of the California Court of Appeal, First Ap-

pellate District, Division Four, entered in the above entitled

ease on June 11, 1979 (rehearing denied July 10, 1979,

hearing denied by the California Supreme Court August 8

1979).

OPINIONS BELOW

The opinion of the California Court of Appeal, First

Appellate District, Division Four, is appended hereto in

accordance with United States Supreme Court Rules, Rule

23(1) (i), and was ordered not to be published (reported)

1A]] references to court rules are to the rules of the United States

Supreme Court, hereinafter, unless otherwise indicated in the body

of the text.

»)

by that court. The order denying rehearing, issued by the

California Court of Appeal, and the order of the California

Supreme Court denying a hearing in the matter were issued

as unpublished (unreported) minute orders of the court;

they are also appended hereto.

JURISDICTION

The judgment of the California Court of Appeal, First

Appellate District, Division Three, was made and entered

on June 10, 1979, and a copy thereof is appended to this

petition in the Appendix at pages A-1—A-12. The order of

the Court of Appeal denying rehearing in this matter was

made and entered on July 11, 1979, and a copy thereof is

appended to this petition in the Appendix at page B-1. The

order of the California Supreme Court denying a hearing

in this matter was made and entered on August 8, 1979, and

a copy thereof is appended to this petition in the Appendix

at page B-2’.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3). |

*Pursuant to Court Rule 22(1) a petition for writ of certiorari

is timely when filed within ninety days of rendition of judgment by

the highest state court to which an appeal can be taken. In the

case at bench, and pursuant to California law, no appeal lies as a

matter of right to the California Supreme Court. In these circum-

stances, the ninety days is computed from the date that the Su-

preme Court refuses to grant review. See, e.g., American Ry. Exp.

Co. v. Levee, (1923) 263 U.S. 19, 20-21; Lone Star Gas Co. v.

State of Texas, (1938) 304 U.S. 224. The procedural and dis-

cretionary aspects of the effect of a denial by the California Su-

preme Court of a petition to consider the effect of a decision of

the California Court of Appeal are discussed in In re Henley (1970)

9 Cal.App.3d 924.

— <

3

QUESTION PRESENTED FOR REVIEW

Is a physician entitled to notice of specific charges and a

hearing thereon prior to revocation of his hospital staff

privileges, absent the presence of any “emergency” condi-

tions, under and by virtue of the due process clause of the

Fourteenth Amendment to the United States Constitution?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourteenth Amendment, Section 1, United

States Constitution.

2. Title 42, United States Code, Section 1983, which

provides :

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any state or

territory, subjects, or causes to be subjected, any citi-

zen of the United States or person within the juris-

diction thereof to the deprivation of any rights, priv-

ileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding

for redress.”

3. California Health & Safety Code § 32150, effective

at the time of the administrative hearings involved in this

petition, provided:

“§ 32150. Board’s authority as to membership in med-

ical staff, and incidental privileges.

In accordance with reasonable rules and regulations

adopted pursuant to Section 32128 of this chapter, the

board of directors, after appropriate action by the

medical staff, may take action or make a decision:

+

(a) Denying an application for membership to the

medical staff;

(b) Revoking membership on the medical staff;

(c) Denying a request by a member of the medi-

cal staff for additional privileges with respect to

the practice of medicine or surgery upon a member

of the medical staff.”

Amended in 1977, the section (§ 32150) nox provides:

“Appellate review of action, decision, ete.

§ 32150. Appellate review of action, decision, etc., af-

fecting professional privileges of staff: Finality of

decision.

The board of directors shall adopt reasonable rules

and regulations, or bylaws, providing for appellate

review of any action, decision, or recommendation of

the medical staff affecting the professional privileges

of any member of, or applicant for membership on, the

medical staff. Such appellate review may be conducted

by the board or by a hearing officer designated by the

board. The board’s decision rendered after such appel-

late review shall be final.”

It was the latter amendment upon which the California

Court of Appeal relied in affirming the judgment.

STATEMENT OF THE CASE

This action was dismissed at the pleading stage, when

the Respondents’ demurrer to Petitioner’s initial complaint

for damages was sustained, and the action therefore or-

dered dismissed by the San Mateo County Superior Court.

The action arises out of the ex parte suspension of Dr.

Rentschler’s staff privileges at Sequoia Hospital, a part of

Sequoia Hospital District, a public entity operating pur-

5)

suant to the provisions of California’s Local Hospital Dis-

trict Act (California Health & Safety Code § 32000 et seq.).

The suspension of privileges was the indirect outgrowth of

an October 14, 1975 letter from Respondent Freeman to

Dr. Rentschler informing Petitioner that any future inci-

dents or unavailability for patient care within the hospital

would result in termination of staff privileges. No other

notice or hearing was provided in October of 1975, or at

any other time prior to suspension of privileges.®

On January 26, 1976, Dr. Rentschler was notified by

letter that his privileges were suspended; the letter was

signed solely by Dr. Freeman, then President of Sequoia

Hospital Medical and Dental Staff. No prior notice or hear-

ing was provided. Dr. Rentschler was invited to a meeting

to be held on February 3, 1976, to discuss the matter, and he

did attend. The January 26, 1976 letter referred to Rentsch-

ler’s alleged failure to be available to attend to patient

Scott on January 24, 1976.

Dr. Rentschler appeared at the February 3, 1976 meeting

of the Executive Committee; claims of impropriety con-

cerning patient Gotfried were aired, and formed the basis

of a further 45-day suspension.

To this point, Dr. Rentschler was permitted to continue

to care for his patients already admitted to the hospital

but was not allowed to admit new patients, to perform con-

sultations, or to care for patients in the hospital emergency

room. By a letter dated March 10, 1976, however, Dr. Rent-

schler’s staff privileges were terminated because of an

*An earlier meeting was held also in October of 1975, at which

a discussion of availability for patient care was held. The possi-

bility of suspension or limitation of staff privileges was not raised.

6

alleged incidence of unavailability occurring in September

of 1975 (for which no previous charges had been brought),

a second alleged incidence of unavailability (the Scott

incident) in January of 1976, and a third alleged incident

involving a patient not under Dr. Rentschler’s care (the

Gotfried incident) also occurring in January of 1976. Again,

no semblance of notice or hearing was provided. The March

10, 1976 letter was issued from the Executive Committee by

Dr. Freeman.

On March 25, 1976, the Board of Directors of the Dis-

trict made yet another announcement of suspension from

staff privileges pending any appeal which Dr. Rentschler

might take. No notice of hearing, or hearing, was provided.

An appeal was heard by the Judicial Committee on June

25, 1976, and was denied. Dr. Rentschler did appear at this

hearing, with counsel. Further appeal, within the hospital

administrative procedure, brought Dr. Rentschler before

the full Medical and Dental Staff of the hospital on Sep-

tember 13, 1976. The full staff voted then to disapprove the

termination of privileges, and to place Dr. Rentschler on

probation, the terms of probation to be decided upon by the

Board of Directors; a ten-day suspension was levied in

order to allow the Board to determine the terms of pro-

bation. On September 23, 1976, however, the Board again,

without the semblance of any type of notice or hearing,

continued indefinitely the suspension of privileges.

Finally, on November 11, 1976, the Board of Directors

voted to terminate the suspension, and to place Petitioner

upon probation of three years subject to certain conditions,

not here relevant. On November 30, 1976, Dr. Rentschler

7

was reinstated to full staff active membership and privi-

leges, subject to conditions of probation.

Dr. Rentschler desired to continue his attack upon the

sanctions, however, and requested a full evidentiary hear-

ing, as provided for in California Health & Safety Code

§ 32152. Hearings were conducted before a hearing officer,

and concluded with the rendition of the hearing officer’s

report on April 28, 1978. The hearing officer, a former San

Mateo County Superior Court Judge, recommended that

the period of probation be reduced to eighteen months.

On June 5, 1978, the Board of Directors rendered its

“Final Decision” in the matter, ruling that an eighteen-

month period of probation was proper, and making other

and additional findings than those recommended by the

hearing officer.* These additional! findings constituted legal

conclusions to the effect that the various interim suspen-

sions and the termination of privileges, set forth above,

were proper. As the probationary period had begun to

commence on November 30, 1976, it had already expired

at the time the “Final Decision” was rendered. Thus, the

upshot of the “Final Decision” was, as a practical matter,

to exonerate Dr. Rentschler from any wrongdoing, and to

reinstate him to full staff privileges. Nothing remained for

a writ of administrative mandate to annul.

This action was commenced by civil complaint filed in

the San Mateo County Superior Court on January 26,

1977. The complaint sought damages caused by the suspen-

sions, and sustained by Dr. Rentschler for defamatory

‘The hearing officer, although requested to do so, declined to

decide whether the interim suspensions and the outright termina-

tion of staff privileges was proper.

8

comments disseminated by Dr. Freeman and other named

defendants. The various counts of the complaint alleged

causes of action for deprivation of civil rights (42 U.S.C.

1983), defamation, misrepresentation, fraudulent business

practices, abuse of process, menace, extortion, and emo-

tional distress.

Defendants Freeman and Meub, the President and Presi-

dent-elect of the Executive Committee respectively de-

murred to the complaint, as here relevant, upon the basis

that Dr. Rentschler had not set aside the “Final Decision”

of the Board of Directors by writ of administrative man-

date (California Code of Civil Procedure § 1094.5), as

assertedly required by the decision of the California Su-

preme Court in Westlake Community Hospital v. Superior

Court (1976) 17 Cal.3d 465. The San Mateo County Su-

perior Court sustained the demurrer upon that ground

without leave to amend, and Petitioner immediately ap-

pealed the subsequent order dismissing his action to the

California Court of Appeal, First Appellate District, where

it was assigned to Division Four.

On appeal, in his opening brief, Dr. Rentschler contended

that he had been deprived of staff privileges without prior

notice or hearing, and that he had accordingly stated a

valid cause of action pursuant to 42 U.S.C. § 1983, and

that a state judicial requirement of a prior administrative

mandamus action (first announced by the California Su-

preme Court in Westlake Community Hospital v. Superior

Court, supra), could not be superimposed upon the federal

statutory scheme. As stated in the opening brief (at pages

24-25) :

9

“Tt is now well established that a doctor’s hospital staff

privileges constitute a substantial vested interest, and

that such privileges may not be revoked without afford-

ing the doctor due process of law. (citation) Denial or

revocation of such privileges without due process of

law constitutes a violation of rights secured by the

Fourteenth Amendment to the United States Constitu-

tion. (citation) Thus, it is manifest that Plaintiff's

complaint states, or can be amended to state, a cause

of action under 42° ‘© 1983...

An action for violation of civil rights brought pursuant

to 42 USC 1983 is governed by federal substantive law.

(citations) Thus, although California has concurrent

jurisdiction with federal courts for purposes of enter-

taining a suit brought pursuant to Section 1983

(citations) California procedural requirements which

constitute conditions precedent to the maintenance of

a damages action may not be invoked to defeat an ac-

tion brought pursuant to Section 1983. (citation)”

In their opposing briefs, Respondents argued that Dr.

Rentschler was barred from suit under 42 U.S.C. § 1983

because the California Supreme Court could devise such a

condition precedent. (Respondents’ Brief in the California

Court of Appeal, pages 26-30). For this proposition Re-

spondents relied upon this Court’s decisions in Jmbler v.

Pachtman (1976) 424 U.S. 409, Wood v. Strickland (1976)

420 U.S. 308, and Hortonville District v. Hortonville Ed.

Assn. (1975) 426 U.S. 482. Respondents argued, second,

that no cause of action was stated because a doctor is not

entitled to due process protection for hospital staff privi-

leges, relying upon this Court’s decision in Board of Re-

gents v. Roth (1972) 408 U.S. 564. Finally, Respondents

10

argued that the proceedings were conducted with sufficient

safeguards to comply with due process requirements.

In its decision, the California Court of Appeal ruled

that Dr. Rentschler received due process, because:

“(California Health & Safety Code] Section 32150

does not require a predetermination hearing.”

The Court of Appeal also ruled that Petitioner, accord-

ingly, received all the “process” that was “due” him.

REASONS FOR GRANTING THE WRIT

The question whether a physician is entitled to notice

and hearing prior to revocation of his hospital staff privi-

leges has never been decided by this Court, and has en-

gendered confusion in and conflicting opinions by those

lower courts who have had occasion to be presented with

the question. This case, involving neither considerations of

emergency nor complications regarding the precise nature

of the right held, presents an appropriate vehicle for the

Court to settle the question of what “process” is “due” to

healing arts practitioners who have had staff privileges

peremptorily revoked.

Cases such as Navato v. Sletten (8th Cir. 1977), 560 F.2d

340, Laje v. R. E. Thompson General Hospital (5th Cir.

1977), 564 F.2d 1159, Christhi/f v. Annapolis Emergency

Hospital Ass’n, Inc. (4th Cir. 1974), 496 F.2d 174, Wood-

bury v. McKinnon (5th Cir. 1974), 447 F.2d 839, Sosa v.

Board of Managers of Val Verde Memorial Hospital (5th

Cir. 1971), 487 F.2d 173, Shaw v. Hospital Authority of

Cobb County (5th Cir. 1975), 507 F.2d 625, Duffield v. Char-

leston Area Medical Center, Inc. (4th Cir. 1974), 503 F.2d

11

512, Duby v. American College of Surgeons (7th Cir. 1972),

468 F.2d 364, Meredith v. Allen County War Memorial

Hospital Commission (6th Cir. 1968), 397 F.2d 33, Birn-

baum v. Trussell (2d Cir. 1966), 371 F.2d 672, Poe v. Char-

lotte Memorial Hospital, Inc. (W.D.N.C. 1974) 374 F. Supp.

1302, and Milford v. People’s Community Hospital Author-

ity (1968), 308 Mich. 49, either approve in dictum, invoke

as an alternative holding, or suggest by implication that

prior notice and hearing is required before a physician’s

staff privileges may be revoked or restricted in any sig-

nificant fashion.

The cases enumerated above, however, establish no clear

guidelines and provide no consensus whether prior notice

and hearing are required by the Fourteenth Amendment

to the United States Constitution. And there is no dearth

of contrary dictum, suggestion and implication in other

authorities, e.g., Stretten v. Wadsworth Veterans Hospital

(9th Cir. 1976), 537 F.2d 361, Klinge v. Lutheran Charities

Ass’n of St. Louis (8th Cir. 1975), 523 F.2d 56, Peacock v.

Board of Regents of University and State Colleges of

Arizona (9th Cir.), 510 F.2d 1824, cert. den., 422 U.S.

1049 (1975), Jackson v. Fulton-DeKalb Hospital Authority

(N.D. Ga. 1976), 423 F. Supp. 1000, aff'd 559 F.2d 1214 (5th

Cir. 1977), Suckle v. Madison General Hospital (W.D. Wis.

1973), 363 F. Supp. 1196, aff'd 499 F.2d 1364 (7th Cir.

1974), Kaplan v. Carney (E.D. Mo. 1975), 404 F. Supp. 161,

Citta v. Delaware Valley Hospital (E.D. Pa. 1970), 313

F. Supp. 301, and see: Suckle v. Madison General Hospital

(7th Cir. 1974), 499 F.2d 1364.

LZ

The fine distinctions drawn in these cases, and the variety

of rationales invoked, evidence the absence of any guiding

principle which may be utilized to resolve the eritical prob-

lems hich the issue of pre-hearing revocation of hospital

privileges engenders. ‘he law in this area is a compost of

equivocation and qualifications. Authority may be found for

virtually any proposition and any position. Meanwhile,

medical societies, hospital administrations, and the physi-

cians themselves are faced with a crazy quilt jurispruden-

tial pattern providing no practical or reliable guidance to

them. The case before the Court is but one result and ex-

ample of the present confusion and conflict.

It is submitted that a useful departure point for travers-

ing this maze may be found in Mathews v. Eldridge (1976)

424 U.S. 319, wherein the Court considered the question

whether a recipient of Social Security disability benefits

was entitled to notice and hearing prior to termination of

disability payments. In reaching the conclusion that the

recipient is not entitled to prior notice and hearing, the

Court balanced the private interest involved, in light of

the fairness and reliability of the existing predetermination

procedures, against the government interest to be served.

In this case, the private interest involved is and was

substantial. Dr. Rentschler, prior to the proceedings com-

menced by the ex parte suspension, enjoyed a reputation as

one of the finest physicians and surgeons in the San Fran-

cisco Bay Area. As the result of the decision of one person,

Respondent Freeman, he in one fell swoop lost that repu-

tation. The interest in staff privileges extends far beyond

loss of reputation, however. It strikes at the very basis of

Dr. Rentschler’s livelihood.

13

In Goss v. Lopez (1975) 419 U.S. 565, this Court held

that high school students suspended for misconduct were

entitled to some form of notice and hearing prior to ex-

clusion from the school for a short period, e.g. ten days.

The private interest identified in that opinion as warrant-

ing such procedures was the interest of the pupils in main-

taining their standing with fellow students and teachers,

and possible interference with their future education and

employment opportunities. In this case the interest of Dr.

Rentschler in his professional standing among his peers

and clients, coupled with the demonstrated threat to his

future professional opportunities, and present professional

obligations, warrants no lesser protections and procedures.

It is difficult to assess the “reliability and fairness” of

the predetermination “procedures” which were involved in

this case: there were no “procedures” employed. The initial

suspension was accomplished by a single individual, acting

alone, without the benefit of any form of evidentiary justi-

fication for the action taken, and without the benefit of

any form of procedural safeguard.

The interest of the government against employing alter-

native procedures is negligible. There was no “emergency”.

Dr. Rentschler was permitted to continue to treat his ex-

isting patients in the hospital. No claim has ever been made,

despite gratuitous and unsupported language appearing in

the opinion issued by the California Court of Appeal, that

there was any necessity whatever for an immediate termina-

tion of privileges.

14

The questions presented by this case are of great and

recurring significance. The serious questions of public pol-

icy involved make this case a particularly appropriate one

for the exercise of this Court's discretionary jurisdiction.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

DANIEL U. SmitH

Vernon L. BrapLey

Attorneys for Petitioner

(Appendix Follows)

2

APPENDIX

Not To Be Published In Official Reports

In the Court of Appeal

of the

State of California

First Appellate District

Division Four

Iugene H. Rentschler, i t Civil

Plaintiff and Appellant,

vs. No. 44990

(Sup. Ct.

Donald H. Freeman, et al., No. 208715)

Defendants and Respondents.

[Filed June 11, 1979]

In January 1977, Eugene H. Rentschler, a member of the

Medical and Dental Staff of Sequoia Hospital District

(hereinafter appellant), filed a complaint against Donald

H. Freeman and Daniel W. Meub, officers of the Medical

and Dental Staff of the Sequoia Hospital District (herein-

after respondents), alleging the following causes of action:

intentional misrepresentation; reckless and wanton mis-

representation; intentional interference with contractual

relations and defamation; civil conspiracy to defraud and

to interfere with contractual relations; unlawful and fraud-

ulent business practices; civil conspiracy to deprive plain-

tiff of civil rights and to interfere with contractual

relations; menace, extortion and intentional infliction of

A-2

emotional distress; defamation; abuse of process; and

negligent misrepresentation.

Respondents demurred to the complaint on the following

grounds: (1) the complaint is defective in failing to allege

the filing of a claim against respondents who are entitled

to the protection of the California Tort Claims Act, and

(2) the complaint is barred by the privileges provided by

Civil Code section 47, subdivision 2, and sections 43.7 and

43.8. In a supplemental points and authorities filed on June

12, 1978, a third ground for demurrer was asserted, and

(3) appellant must seek a writ of mandate before maintain-

ing a tort action for damages.

The demurrer was sustained without leave to amend on

the ground that the court lacked jurisdiction due to appel-

lant’s failure to seek a writ of mandate.’ Judgment of dis-

missal was entered. The appeal is from the judgment.

Although a demurrer lies only where the defects appear

on the face of the pleading (3 Witkin, California Procedure

(2d ed. 1971) Pleading, § 797, p. 2410), a complaint may

be read to include matters judicially noticed (Code Civ.

Proc., § 430.30). In the supplemental points and authorities

in support of the demurrer, respondents requested the

trial court to take judicial notice of the final decision of

the Board of Directors of Sequoia Hospital District. Simi-

larly, appellant requested the trial court to consider the

report of the hearing officer which was attached as an ex-

hibit to his points and authorities in opposition to the

1The court made no ruling on the other two grounds raised in the

demurrer. Since the trial court did not err in sustaining the de-

murrer without leave to amend, it is unnecessary to determine the

merits of these two grounds.

A-3

demurrer. Both parties request this court to take judicial

notice of the fact that Sequoia Hospital District is a public

entity, organized pursuant to Health and Safety Code sec-

tion 32000 et seq.

The reviewing court must take judicial notice of any

matter properly noticed by the trial court and may take

judicial notice of any matter specified in Evidence Code

section 452. (Evid. Code, § 459.) Pursuant to Evidence

Code section 452, subdivision (c), “[o]fficial acts of the

legislative, executive, and judicial departments of the

United States and of any state of the United States” may

be judicially noticed.

Although it is uncertain whether the trial court took

judicial notice of the matters requested, this court may

take judicial notice of the facts as stated in the report of

the hearing officer and the final decision of the board of

directors for the purpose of determining whether the com-

plaint, if amended, could state facts sufficient to constitute

a cause of action.

On October 7, 1975, appellant attended a meeting of the

Medical and Dental Staff Executive Committee (herein-

after staff executive committee), during which he was ad-

vised that his past conduct toward his patients was un-

acceptable and inappropriate and that he should arrange

to be available to his patients.

On October 16, 1975, appellant received a letter from

respondent Freeman notifying him that any future inci-

dents of abandoning patients would result in suspension

from the Medical and Dental Staff of Sequoia Hospital.

A-4

On January 26, 1976, respondent Freeman suspended

appellant for an indefinite period from admitting patients

to the hospital and requested appellant attend a staff

executive committee meeting on February 3, 1976.

On February 3, appellant attended the meeting of the

staff executive committee which affirmed appellant’s sus-

pension.

On February 10, appellant was notified by respondent

Freeman that his hospital privileges were restricted for

45 days from January 26, 1976. He was prevented from

admitting patients to the hospital, performing consulta-

tions, or caring for patients in the emergency room. He was

further asked to resign.

On March 10, appellant was notified that the staff execu-

tive committee voted to terminate his staff membership.

Appellant was also informed of his right to appeal.

On March 17, appellant advised the staff executive com-

mittee of his intention to appeal the decision.

On March 25, the Board of Directors of Sequoia Hospital

District voted to suspend appellant from the staff while

he was pursuing his appeal.

On June 22, appellant and his attorney attended a meet-

ing of the Medical and Dental Judicial Committee during

which the committee voted to sustain the action of the

staff executive committee.

Appellant then requested a hearing before the full Medi-

eal and Dental Staff.

On September 13, a hearing, attended by appellant and

his attorney, was held before the entire staff. The staff

A-5

voted (1) to disapprove the action of the staff executive

committee terminating appellant’s staff privileges, (2) to

continue appellant’s suspension frem the staff for an addi-

tional period of 10 days, and (3) tv place appellant on pro-

bation for up to two years.

On September 23, the Board of Directors of Sequoia

Hospital voted to continue the suspension of appellant.

On November 11, the board of directors voted to termi-

nate appellant’s suspension upon the condition that appel-

lant accept probation for a period of three years.

On November 30, appellant was reinstated to active

staff membership subject to the conditions of probation.

Appellant then filed an application for hearing.

The matter was assigned to a hearing officer on March

24, 1977. Hearings were held in October and November

1977, and January 1978. The hearing officer issued an ad-

visory report finding that appellant had failed to comply

with the community standards of medical practice and

that the board of directors acted lawfully in placing ap-

pellant on probation. The hearing officer recommended,

however, that the period of probation be reduced from

three years to 18 months.

On June 5, 1978, the board of directors issued its final

decision which adopted all of the recommendations of the

hearing officer. The board of directors further found that

appellant’s staff privileges were properly suspended on

January 26, 1976, and the suspension was properly con-

tinued to November 30, 1976.

A-6

I

Respondents contend that appellant is required to set

aside the board of directors’ decision in a mandamus pro-

ceeding before instituting a tort action for damages. We

agree.

It has been recently established that a nonprofit hospital,

whether private or public, must reasonably exercise its

~~ “power to pass on av application for appointment to or re-

newal of staff membership. (Ascherman v. San Francisco

Medical Society (1974) 39 Cal.App.3d 623, 631.) Addition-

ally, the hospital may not infringe upon a physician’s staff

privileges without granting him minimal due process. (/d.,

at p. 648.) Consequently, the physician must be given no-

tice of the charges against him with sufficient time to ade-

quately prepare a defense. (Jd.) A hearing by the decision

makers must be held and only evidence produced at the

hearing may be the basis of the decision. (Jd.)

If a physician is deprived of staff privileges without the

benefit of basic procedural protection, the physician may

file an immediate tort action for damages. (Willis v. Santa

Ana Ete. Hospital Assn. (1962) 58 Cal.2d 806, cited with

approval in Westlake Community Hosp. v. Superior Court

(1976) 17 Cal.3d 465, 478.)

However, if the hospital makes a determination by a

quasi-judicial proceeding to deny a physician his staff

privileges, the aggrieved physician must successfully set

aside the decision in a mandamus action before instituting

a tort action for damages. (Westlake Community Hosp. v.

Superior Court, supra, 17 Cal.3d 465 at p. 469.) So long

as such a quasi-judicial decision has not been set aside

A-7

through appropriate review procedures the decision has the

effect of establishing the propriety of the hospital’s action.

(Id., at p. 484.)

Appellant contends that if he were required to seek a

successful mandamus action it would be an exercise in

futility, as the final decision of the board of directors did

not impose any suspension, limitation, revocation or restric-

tion. In effect, he claims there would be no action to man-

date.

Appellant is correct that a writ of mandate will not issue

unless it is necessary to protect a substantial right and

upon a showing that substantial damage will be suffered

by the petitioner if the writ is denied. (Grant v. Board of

Medical Examiners (1965) 232 Cal.App.2d 820.) In the

present case, however, the board of directors in its final

decision specifically approved the actions of the hospital

staff, concluded that the suspension of appellant pending

final decision was proper and that appellant’s conduct con-

stituted a valid and lawful basis for discipline or corrective

action. The board also placed appellant on probation sub-

ject to certain specified conditions for 18 months. If the

board’s conclusions were improper, mandate would clearly

lie to remove these charges from the record.

We also note that on September 2, 1978, appellant filed

a petition for writ of mandate in which he asked that the

court command respondent to set aside its decision impos-

ing probation and that the court decree that the penalties

and limitations imposed on appellant were improper. Ap-

parently appellant concedes by seeking the writ that sub-

stantial rights are involved.

A-5

Appellant contends, citing Westlake Community Hosp. v.

Superior Court, supra, the above-stated rules requiring

exhaustion of remedies and a successful mandamus action

before insututing a tort action are inapplicable to him. He

asserts that he is entitled to an immediate tort action for

damages because he was suspended without the benefit of

any notice or hearing from January 26, 1976, when he re-

ceived his first letter from respondent Freeman, until No-

vember 30, 1976, when the board of directors reinstated

him.

Appellant’s asserted denial of minimum due process pro-

tection is not supported by Westlake Community Hosp. v.

Superior Court, supra, as he contends. In Westlake, plain-

tiff-physician’s application for membership at Los Robles

Hospital was denied without notice of the charges against

her, and without an opportunity for a hearing. Although

plaintiff-physician was required to exhaust hospital reme-

dies, she was never notified of her right to appeal the

decision of rejection. Thus, the court concluded, she was

entitled to immediate tort action for damages.

In so holding, the court relied upon Willis +. Santa Ana

Etc. Hospital Assn., supra, 58 Cal.2d 806, wherein the osteo-

pathie physician’s membership on tiie hospital staff was ter-

minated without any reason or hearing. The court allowed

suit for damages without requiring a prior mandamus

action.

In the present case, appellant was clearly put on notice

of the charges and the potential action to be taken against

him. Appellant was advised on October 7, 1975, at a meet-

ing of the staff executive committee which he attended,

A-9

that his past conduct toward his patients was unacceptable

and inappropriate. On October 16, 1975, appellant was no-

tified that if he continued abandoning his patients, he would

be suspended from the staff.

On January 26, 1976, when appellant was actually sus-

pended, he was requested to attend a meeting of the staff

executive committee on February 3, 1976. It was at this

meeting that appellant had the opportunity to state his

defense. Furthermore, throughout the 10-month period ap-

pellant was suspended, he attended several meetings dur-

ing which the merits of his suspension were discussed.

Unlike Westlake or Willis, where the action taken was

completely in derogation of the aggrieved physician’s

rights, the case before us demonstrates appellant received

notice and had sufficient opportunity to be heard before

and during the period of suspension.

Appellant, under these cireumstances, has no right to an

immediate suit in tort for damages.

II

Appellant asserts the court in Westlake left unanswered

the question of the proper procedure to be followed when a

tort action has been filed prior to a successful mandamus

proceeding. Appellant contends the trial court should have

ordered his tort action continued rather than dismissed.

The court in Westlake did confront the question. With

a similar fact situation, the court found that plaintiff-

physician’s tort action was premature as to Westlake Hos-

pital. Thus, rather than continue the action until a success-

ful resolution of the mandamus proceeding, the court held

A-10

that defendant Westlake Hospital’s motion for summary

judgment should have been granted.

Code of Civil Procedure section 312 provides: “Civil

actions, without exception, can only be commenced within

the periods prescribed in this title, after the cause of action

shall have accrued, unless where, in special cases, a differ-

ent limitation is prescribed by statute.”

Until appellant successfully sets aside the board of

directors’ decision validating the staff executive commit-

tee’s action of suspension, respondents are free from lia-

bility. Thus, at the time appellant filed his tort action for

damages, no cause of action had accrued against respon-

dents. “It is a settled rule of our law that the plaintiff’s

right of action must exist when he commences his action.

[Citations.] The plea that an action is prematurely brought

is a perfect defense to the merits. [Citation.]” (Gardner

v. Shreve (1949) 89 Cal. App.2d 804, 810.)

There are cases in which a continuance instead of dis-

missal of a prematurely filed action has been permitted.

In these cases, however, the cause of action was certain to

accrue within a short time. In the present case there is

no certainty that appellant will prevail on his petition for

writ of mandate. The trial court properly granted the de-

murrer without leave to amend.

Ill

Appellant contends that his complaint can be amended

to state a cause of action under 42 United States Code

section 1983. Under the Civil Rights Act “[e]very person

who, under color of any statute, ordinance, regulation, cus-

A-11

tom, or usage, of any State or Territory, subjects, or causes

to be subjected any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceed-

ing for redress.”

The determinative issue is whether appellant has been

deprived of a constitutional right. Appellant does not claim

a constitutional right to hospital staff privileges but con-

tends that the denial of his hospital staff privileges without

the benefit of due process protection constitutes a violation

of his Fourteenth Amendment rights.

Health and Safety Code section 32150, which governs the

hearing procedures for members of a county hospital medi-

eal staff provides that: “The board of directors shall adopt

reasonable rules and regulations, or bylaws, providing for

appellate review of any action, decision, or recommendation

of the medical staff affecting the professional privileges

of any member of, or applicant for membership on, the

medical staff. Such appellate review may be conducted by

the board or by a hearing officer designated by the board.

The board’s decision rendered after such appellate review

shall be final.”

Appellant was twice warned that his conduct was un-

acceptable and inappropriate before any action was taken

against him. At the time appellant was suspended he was

notified to attend a staff meeting to hear his case. The brief

suspension prior to hearing was required for the protection

of appellant’s patients.

A-12

Section 32150 does not require a predetermination hear-

ing. It provides an aggrieved physician with appellate

review of any action or decision by the medical staff which

affects the physician’s professional privileges.

Appellant was provided with an extensive appellate re-

view by the hearing officer after the board of directors

voted to reinstate appellant on a probationary basis. After

full consideration of the hearing officer’s report, the board

of directors adopted all of the recommendations contained

therein and also found that the staff executive committee's

action to suspend appellant was proper.

On these facts alone, appellant was not denied his rights

guaranteed by section 32150. In fact, appellant was given

more procedural due process protection than required by

law. He received notice of the charges against him well

before any action was taken. Furthermore, he and his

attorney attended several meetings during which the merits

of his suspension were discussed. Under these cireum-

stances, it is difficult to comprehend how appellant can

seriously allege he was deprived of his right to due process.

The judgment is affirmed.

Caldecott, P. J.

We concur:

Christian, J.

Delucchi, J.*

* Assigned by the Chairperson of the Judicial Council.

Rentschler v. Freeman—1 Civil 44990

Court of Appeal of the State of California

in and for the

First Appellate District

Division Four

Eugene H. Rentschler, : No. 44990

Plaintiff and Appellant,

Vs. Superior Court

j een

Donald H. Freeman, et al.,

Defendants and Respondents. ;

[Filed July 10, 1979]

BY THE COURT:

The petition for rehearing filed in the above entitled

cause is hereby denied.

Dated July 10, 1979

Caldecott, P.J.

B-2

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

August 8, 1979

I have this day filed Order

HEARING DENIED

In re: 1 Civ. No. 44990

Rentschler

Vs.

Freeman

Respectfully,

G. EK. Bishel

Clerk