Petition — Straube v. Emanuel Lutheran Charity Board

Supreme Court brief1980

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*; MECHALL ROOAK.IR.. CLERK

» LL A A LER,

IN THE

SUPREME COURT OF THE UNITED STATES

No.

79-1430

KURT R. STRAUBE, M.D.,

Petitioner,

Vv.

EMANUEL LUTHERAN CHARITY BOARD,

a corporation, dba EMANUEL HOSPITAL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE OREGON SUPREME COURT

See Inside Cover for Counsel

Preston C. Hiefield, Jr.

WILLIAMS, STARK, HIEFIELD,

NORVILLE & GRIFFIN, P. C.

775 Boise Cascade Building =

Portland, Oregon 97201

Telephone: (503) 222-9966

Richard E. Alexander

E. Walter Van Valkenburg

STOEL, RIVES, BOLEY,

FRASER AND WYSE

23rd Floor, Georgia-Pacific

Building

900 S.W. Fifth Avenue

~ Portland, Oregon 97204

Telephone: (503) 224-3380

Attorneys for Plaintiff-Petitioner

’

William L. Hallmark

William A. Davis

LANG, KLEIN, WOLF, SMITH,

GRIFFIN & HALLMARK

800 Benjamin Franklin Plaza

Portland, Oregon 97258

Telephone: (503) 222-4422

Attorneys for Defendant-—Respondent

TABLE OF CONTENTS

Opinions Below . . « « «© « © © «© « e

RO ee ee ae ae ee ee ee a

Questions Presented ......-« «

Constitutional Provision Involved .

Statement of Case ..... .« « « «

nn /« os ee te «6 € 6 6 8 © 6 © «

a Se ee oe ee ee ee

~ Appendices:

Opinions and Orders of the Oregon

Supreme Court . . . +. «+ « © «© « e

Opinions and Orders of Multnomah

County Circuit Court ..... .

Opinion of United States District

Court for the District of Oregon

Opinion of Court of Appeals for

ene Wamem CEPGmat « 2. 6 tw te tl

D-1

INDEX OF AUTHORITIES

Cases Cited

Adler v. Montefiore Hospital Ass'n of W.

Pa., 453 Pa 60, 311 A2d 634 (1973),

cert denied 414 US 1131, 94 S Ct 870,

oe. Be 2G 155 {E974} 96 te eh 8 te ks

Ascherman v. Presbyterian Hosp. of Pack.

Med. C., Inc., 37 F2q 1103 (9th Cir

1974) * o oe - 6 os o o o oO * - a a — eo to

Board of Regents v. Roth, 408 US 564, 92

S Ct 2701, 33 L Ed 2d 548 (1972)... .

Briscoe v. Bock, 540 F2d 392 (8th Cir

1976) ° * ° . e _ . ° a ° * e . e . 7 e

Burton v. Wilmington Parking Authority,

365 US 715, 81 S Ct 856, 6 L Ed 2d 45

(1961) e ° . . . ° © . . 7 ° 2 e . .

Christhilf v. Anapolis Emergency Hospital

Ass'n, Inc., 496 F2d 174 (4th Cir 1974)

Citta v. Delaware Valley Hospital, 313 F

Supp 301 (ED Pa 1970) ... «+ « « « « «

City of McPherson v. Nichols, 48 Kan 430,

29 P 679 (1892) a e ° ° e e * e e e e e

Cumnock v. City of Little Rock, 154 Ark

S755. 29a OM DT USES aP Sos ee 8 eo we

Dixon v. Love, 431 US 105, 97 S Ct 1723,

52 L Ed 2d 172 (1977) e ° om e « e e s e

Doe v. Bellin Memorial Hospital, 479 F2d

756 ( 7th Cir 1973) e o * » oe a o * J ©

- 19

. £a

Cases Cited

Doyle v. Unicare Health Serv., Inc.,

Aurora Center, 399 F Supp 69 (ND Ill

1975), aff'd 541 F2d 283 (7th Cir 1976)

Duby v. Brown, 369 Mass 614, 341 NE2d 870

(1976) . e * e . ° e e e e e e . e e °

Flagg Bros., Inc. v. Brooks, 436 US 149,

98 S Ct 1729, 56 L Ed 2d 185 (1978) .

Goldberg v. Kelly, 397 US 254, 90 S Ct

SUL3, 29 & EG 26 287 (1970) « « « 2

Goss v. Lopez, 419 US 565, 95 S Ct 729,

si oe eee Fee Cees e) 6 8 le ek ek ee

Greco v. Orange Memorial Hospital Cor-

oration, 423 US 1000, 96 S Ct 433, 46

Ed 24-376 SUE ey ane ee

Greco v. OrangexMemorial Hospital Cor-

poration, 513 F2d 873 (5th Cir 1975),

cert denied 423 US 1000, 96 S Ct 433,

ae ee eo Pe CROP EE oe Se 8 eee

Hirschkop v. Snead, 594 F2d 356, 370-71

(4th Cir 1979) + © * . - e * o a s e os

Hobbins v. Methodist Hosp. of Madison,

420 F Supp 773 (WD Wisc 1976) ....

Indiana ex rel Anderson v. Brand, 303 US

95, 58 S Ct 443, 82 L Ed 685 (1938) .

Jackson v. Metropolitan Edison Company,

419, US 345, 95 S Ct at 449, 42 L Ed

we Ge? Seen Fe TN See!) Bee fe

A»

iii iv

_ Cases Cited Cases Cited

Page Page

Jackson v. Metropolitan Edison Company, | Schlein v. Milford Hospital, 383 F Supp

95 S Ct. at 464 ee © £) = «€ Bie « ae oe ee 22 1263 (D | Conn 1974), 423 F Supp 541 (D

Conn 1976), aff'd 561 F2d 427 (2nd Cir

Jackson v. Norton Children's Hospitals, Re a ee ee ee Pe a ee

ine... 407 Fan. S02 (Oth Cam. 20st 0.6 » (+ a2

Sniadach v. Family Finance Corp., 395 US

Johnson v. Southwest Detroit Community 337, 89 S Ct 1820, 23 L Ed 2d 349

Mental, Etc., 462 4 Supp 16 ED Mich (1969) « + . . . + . 7 7 © ° . o e e 7 e ° 24, 25

1978) e . 7. . o + ° s o * o oe e . ° 2 7 . ll

Straube v. Emanuel Lutheran Charity

barge v. Reynolds, 414 F Supp 45 (WD Va Board, 287 Or 375, 600 P2d 381 (1979) .. 15

) + e _ . o . e a . e e - . a ° . a ” ll

Straube v. Larson, et al., No. 74-3496,

Moose e No. 107 v. Irvis, 407 US 163 74-3497 (9th Cir 1976). CO Sate ee eee Skee ae ae

eo se TORS 32 -L Ed 2d 627 (1972) ... 20 ( a ) ,

ay Suckel v. Madison General Hospital, 362 F

Mulvihill v. Julia L. Butterfield Memorial ~ Supp 1196 (WD Wisc 1973), aff'd 499 F2d

Hospital, — 329 F F Supp 1020 (SD BY i971) ../12 1364 (7th Cir 1974) he pr ie Ne re

O'Neil v. Grayson County War Memorial

Hospital, 472 F2d 1140 (6th Cir 1973) .. 10

Ward v. St. Anthony Hospital, 476 F2d 671

~ (10th Cix 1973) e - - . e . aa o _ e s o 7 ll

Orr v. Orr, US , 99 S Ct 1102,

£130, ke SS ESRF) btw 2 +58 Statutes and Constitutional Provision

Papachristou v. City of Jacksonville, 405 U.S. Const., Amendment XIV

US 156, 92S Ct 839, 31 L Ed 2a 110 / a ae, Me Tan

(2974)... «0 6 & 6 & 8. Sie eee eee eee ee er eee CUP OOe eg ed

Perry v. Sinderman, 408 US 593, 92 S Ct oe ee ee Bee Bae 190513) 2 6a kt et ee

2694, 33. Ba 20 SPO 42078). 4 i oe st 4 Oe

a ee we Oe. A976) . «2 © 6 6 6 e AT, WD

Poe v. Charlotte Memorial Hospital, Ince,

374 F Supp 1302 (WD NC Wee ae ee

Sams v. Ohio Valley General Hospital

: Ass'n, Inc., 413 F2d 826 (4th Cir 1969) . 10, ll

Treatises

2 McQuillin Municipal Corporations § 4.99

(1979) - e e . ° ° oa . + oa . © - * . e e 19

25 ALR 612 (1923) e e . e e ° e . e . . e * 19

ake

This is a petition for certiorari to

review the judgment of the Oregon Supreme

Court in the case of Straube ve Emanuel

Lutheran Charity Board, Oregon Supreme Court

No. 25276.

OPINIONS BELOW

The opinion of the Oregon Supreme

Court is reported at 287 Or 375, 600 P2d 381

(1979). See Appendix A. The opinion of the

Multnomah County Circuit Court is not reported.

See Appendix B.

GROUNDS ON WHICH JURISDICTION

OF THIS COURT IS INVOKED

The opinion sought to be reviewed

was filed and entered by the Oregon Supreme

Court on September 18, 1979. A timely peti-

tion for rehearing was filed, and the petition

was denied on November 20, 1979. Judgment was

entered on December 18, 1979. See Appendix A.

Jurisdiction is conferred upon this

court by 28 USC § 1257(3) (1976).

ots

QUESTIONS PRESENTED FOR REVIEW

Is a private, non-profit hospital

that receives federal funding, enjoys federal

tax exemptions, and provides vital services to

the general public required to comply with the

due process dictates of the federal constitu-

tion when the hospital suspends the medical

staff privileges of a hospital based physician

(radiologist)?

Assuming that the hospital in this

case was required to comply with federal

constitutional due process dictates, did it do

so when:

(a) it provided no opportunity for

the petitioner to be heard prior to a

summary suspension order;

(b) the persons who affirmed the

summary order at the post-suspension

hearing were acquainted with the

matter prior to the hearing and

biased against petitioner; and

petitioner was suspended required

conduct contary to "the best interest

of patients' care?"

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision in-

volved in this case is the Fourteenth Amend-

ment to the United States Constitution, which

provides in part:

"*** No State shall make or

enforce any law which shall abridge

the privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or pro-

perty, without due process of law;

nor deny to any person within

its jurisdiction the equal protec-

tion of the laws." 1 USC LII

(1976).

STATEMENT OF THE CASE

Petitioner is a duly licensed

Physician and was a member of the medical

staff of Emanuel Hospital, a private, non-

profit charitable organization located in

Portland, Oregon. On or about January 30,

1973, petitioner was summarily suspended from

wihien

the medical staff without being advised prior to

the suspension that such suspension was being

considered and withovt being allowed any

opportunity to inquire into the basis of the

Suspension. Following the suspension, peti-

tioner was afforded a hearing before the

hospital Executive Committee. Subsequent

hearings were held on the suspension, and on

or about January 24, 1974, the summary suspen-

sion was made permanent.

Certain members of the Executive

Committee met and discussed the charges

against petitioner prior to the formal Execu-

tive Committee hearing. Petitioner was

suspended pursuant to a provision of the

hospital bylaws which allowed termination of

staff privileges if an individual does not act

"in the best interests of patient care."

Petitioner then filed two actions in

the United States District Court for the

- District of Oregon claiming violations of 42

USCA §§ 1983 and 1985(3). These actions were

dismissed for failure to state a claim upon

Which relief could be granted. See Appendix

C. The lower court decision was affirmed by

the United States Court of Appeals for

the Ninth Circuit. See Appendix D. This

court denied certiorari. 429 US 830, 97 S$ Ct

91, 50 L Ed 2d 94 (1976).

Petitioner also brought this suit in

the Circuit Court of the State of Oregon for

the County of Multnomah. Petitioner sought an

Order restoring his staff privileges and

enjoining the defendant from proceeding

against him in the future unless it did so in

compliance with due process and with its

bylaws. Petitioner also sought compen-

Satory and punitive damages, ‘attorney fees,

and costs.

In his complaint, petitioner alleged

that defendant was a non-profit corporation

existing for charitable Purposes under

Chapter 61 eo the Oregon Revised Statutes, had

received public support in the form of tax

exemptions, subsidies, federal funds under the

Hill-Burton Act, and charitable contributions

from the general public. The Multnomah County

Circuit Court dismissed petitioner's due process

claims on defendant's motion for summary judgment.

Petitioner appealed to the Oregon

Supreme Court, which affirmed the order of the

Circuit Court. A brief amicus curiae was filed

in support of petitioner's position by the

American Medical Association.

The federal constitutional question

on which petitioner seeks review in this court

was raised in the Multnomah County Circuit

Court in petitioner's complaint, which

appears at page 1 of the Trial Court File.

The pertinent allegations also appear in the

amended complaint (Trial Court File, page 71),

second amended complaint (Trial Court File,

page 118) and third amended complaint (Trial

Court File, page 164). Those allegations

state:

"T.a

"The summary suspension and

permanent suspension, and each of

them, of plaintiff's staff privi-

leges were wrongful in one or more

of the following particulars:

"(a) That at no time herein

mentioned was plaintiff provided nor

did the by-laws, rules or regula-

tions governing the operation of

Emanuel contain provision for doing

any of the following things, or

their equivalent: (1) for advising

a physician, prior to his suspen-

sion, that his suspension was being

considered, (2) for advising such

physician of the charges, if any,

against him prior to the exercise of

summary suspension, (3) for a

reasonable investigation of the

charges or other alleged facts which

are to form the basis of a summary

suspension, or (4) for giving such

physician an opportunity to be heard

prior to the issuance of the summary

suspension order.

"(b) That at no time herein

mentioned with respect to proceed-

ings as to whether the summary

suspension should be continued, was

plaintiff provided nor did the

by-laws, rules, or regulation

governing the operation of said

hospital contain provision for (1) a

method to show bias and prejudice of

witnesses, (2) a concise statement

of the charves, (3) an impartial

Executive Committee, Review Commit-

tee, Board of Directors and Joint

Conference Committee to determine

plaintiff's right to staff privi-

leges, (4) an Executive Committee,

a Review Committee, a Board of

Directors or a Joint Conference

Committee which refrained from

considering evidence outside of the

record, (5) an Executive Committee,

a Review Committee, a Board of

Directors or a Joint Conference

Committee which followed the by-

laws and regulations of defendant

Emanuel, and (6) by-laws and regula-

tions for summary suspensions and

continuance thereof which were not

unconstitutionally vague and over-

broad, ***

"VIII

"That at no time material

herein was it established under the

by-laws that plaintiff's staff

privileges should be suspended. The

summary suspension, its continuance,

and the permanent suspension of

plaintiff's staff privileges, were

unjustified under the by-laws, were

arbitrary, capricious, discrimina-

tory, and without any basis in fact

or law and in direct violation of

the due process and equal protection

clauses of the United States Consti-

tution and the Oregon Constitution."

<n Fue

The federal constitutional question

was passed upon by the Circuit Court when it

allowed defendant's motion for partial summary

judgment. The motion for partial summary

judgment appears at page 268 of the Trial

Court File and the memorandum in support

appears at page 270. The petitioner's memo-

randum in opposition appears at page 302.

The order on the motion for summary judgment

appears at page 297 and the relevant opinion

letters by the Trial Court appear at page 295.

The order and opinion letters are set forth in

Appendix B.

Petitioner raised the federal

constitutional question in the Oregon Supreme

Court in its first assignment of error which

reads:

"The trial court erred in

granting partial summary judgment

holding that the defendant was not

required to afford plaintiff with

due process of law in connection

with the summary suspension and

a1O=<

permanent suspension of his staff

privileges." Appellant's brief at

page 37.

Petitioner's federal constitutional claim was

rejected by the Oregon Supreme Court, 287 Or

at 383, 600 P2d at 386, and the judgment of

the Circuit Court was affirmed.

ARGUMENT

is Review is warranted in this case

because it involves a question on

which the lower federal courts are

divided.

A number of lower federal courts

have considered the question of whether or not

a private hospital is subject to the due

process requirements of the Fourteenth Amend-

ment to the United States Constitution, and

the results have been inconsistent. Compare

Christhilf v. Anapolis Emergency Hospital

Ass'n, Inc., 496 F2d 174 (4th Cir 1974);

O'Neil v. Grayson County War Memorial Hospital,

472 F2d 1140 (6th Cir 1973); Sams v. Ohio

at te

Valley General Hospital Ass'n, Inc., 413 F2d

826 (4th Cir 1969); Large v. Reynolds, 414 F

Supp 45 (WD Va 1976); Poe v. Charlotte

Memorial Hospital, Inc., 374 F Supp 1302 (WD

NC 1974); Citta v. Delaware Valley Hospital,

313 F Supp 301 (ED Pa 1970) (all holding that

private non-profit hospitals must comply with

Fourteenth Amendment requirements) with

Briscoe v. Bock, 540 F2d 392 (8th Cir 1976);

Greco v. Orange Memorial Hospital Corporation,

513 F2d 873 (5th Cir 1975), cert denied 423

US 1000, 96 S Ct 433, 46 L Ed 2d 376 (1975);

Ascherman v. Presbyterian Hosp. of Pack. Med.

C., Inc., 507 F2d 1103 (9th Cir 1974); Doe v.

Bellin Memorial Hospital, 479 F2d 756 (7th Cir

1973); Ward v. St. Anthony Hospital, 476

F2d 671 (10th Cir 1973); Jackson v. Norton

Children's Hospitals, Inc., 487 F2d 502 (6th

Cir 1973); Johnson v. Southwest Detroit

Community Mental, Etc., 462 F Supp 166 (ED

Mich 1978); Doyle v. Unicare Health Serv.,

alZu

Inc., Aurora Center, 399 F Supp 69 (ND Ill

1975), aff'd 541 F2d 283 (7th Cir 1976); and

Mulvihill v. Julia L. Butterfield Memorial

Hospital, 329 F Supp 1020 (SD NY 1971) (all

holding contra). Compare also the District

Court opinions and the opinion of the Court of

Appeals for the Second Circuit in Schlein v.

Milford Hospital, 383 F Supp 1263 (D Conn

1974) (on motion to dismiss), 423 F Supp 541

(D Conn 1976) (on motion for summary judgment),

aff'd 561 F2d 427 (2d Cir 1977).

The District Court for the Western

District of Wisconsin has reached opposite

results. Suckel v. Madison General Hospital,

362 F Supp 1196 (WD Wisc 1973), aff'd 499 F2d

1364 (7th Cir 1974) (holding that a private

hospital was subject to due process require-

ments); Hobbins v. Methodist Hosp. of Madison,

420 F Supp 773 (WD Wisc 1976) (holding that

the hospital was not subject to due process

‘requirements). Moreover, at least two state

as} Sue

courts have noted the confusion in this

area. Duby v. Brown, 369 Mass 614, 341 NE2d

870 (1976); Adler v. Montefiore Hospital Ass'n

of W. Pa., 453 Pa 60, 311 A2d 634 (1973),

cert denied 414 US 1131, 94 S Ct 870, 38 L Ed

2d 755 (1974).

Petitioner recognizes that this

court previously has denied certiorari in a

case involving the issue presented by the

present case. Greco v. Orange Memorial

Hospital Corporation, 423 US 1000, 96 S Ct

433, 46 L Ed 2d 376 (1975). Mr. Justice

White, joined by the Chief Justice, filed a

well reasoned dissent to that denial of

certiorari, and his analysis merits

reconsideration by the court in the present

case:

"Whether or not the Court agrees

with the result reached below, the

conflicts [among the lower courts] are

square; they are on issues which arise

with frequency in the lower federal

courts; and they are on significant

questions of law. Perhaps, in light

of the current pressures on our docket,

there may be a category of conflicts,

involving insignificant points of federal

law, which we simply do not have the

capacity to resolve. However, it

would undoubtedly surprise members of the

bar and the public that this Court views

the conflicts created by the decision

below to fall within such a category."

98 S Ct at 436.

In the four years since the petition in Greco

was denied, additional courts have had oppor-

tunities to consider the question presented by

this case, but the law remains inconsistent.

Petitioner submits that this is an appropriate

case by which this court may resolve that

inconsistency.

26 Review is warranted in this case

because the Oregon Supreme Court

substance not previously determined

by this court, and decided it ina

way not in accord with this court's

decisions.

This court has never considered

whether a private, non-profit hospital must

a1 S=

comply with federal due process requirements

in terminating a physician's staff privileges.

This case presents the court with an oppor-

tunity to further clarify the “state action

doctrine" in the context of a new factual

situation. The decision below, moreover,

should be reversed because it reaches a

conclusion inconsistent with the reasoning

behind this court's prior decisions.1}

Re Defendant contended in state court

that petitioner was "collaterally estopped" to

raise the question of state action in this

case because of a prior judgment in Straube v.

Larson, et al., No. 74- -3496, 74-3497 (9th Cir

1976). Brief for Respondent at 8, Straube v. .

Emanuel Lutheran Charity Board, 287 Or 375,

600 P2d 381 (1979). A similar contention was

made at the trial level, where defendant

contended that petitioner was “estopped from

further litigating" the state action issue.

The Oregon Supreme Court, however,

did not decide this case below upon res

judicata grounds, but squarely faced and

decided the federal constitutional question.

287 Or at 383, 600 P2d at 386. As this court

held only last term:

"Where the state court does not

decide against a petitioner or

appellant upon an independent state

OS OS

~iG<

(a) The Oregon Supreme Court erred

in holding that the defendant

hospital need not comply with

federal due process requirements.

The Oregon Supreme Court disposed of

plaintiff's federal constitutional claim in

one paragraph, reasoning as follows:

ground, but deeming the federal

question to be before it, actually

entertains and decides that question

adversely to the federal right

asserted, this Court has jurisdic-

tion to review the judgment if, as

here, it is a final judgment. We

cannot refuse jurisdiction because

the state court might have based its

decision, consistently with the

record, upon an independent and

adequate non-federal ground." Orr

v. Orr, US , 99 S Ct 1102,

1110, = =LEd 2d (1979) quoting

Indiana ex rel Anderson v. Brand, 303

US 95, 58 S Ct 443, 82 L Ed 685 (1938).

Whether or not the prior judgment in the

federal litigation precluded the present

litigation is a question of state law that

the courts below did not decide. Because the

state courts decided the federal constitu-

tional question, and decided it adversely to

the federal right asserted, this court shoulé

‘allow review.

+ oe ne ae

= Pe

"Plaintiff claims that the

hospital is sufficiently involved

with the state to owe him ‘due

process of law' under the Four-

teenth Amendment of the United

States Constitution. He argues that

‘state action’ is involved here

because of ‘federal funding,

charitable solicitation from the

general public, federal tax

exempt status, and vital service to

the general public.' However, he

cites no authority that this is

sufficient to constitute state

action for the purpose of constitu-

tional due process. In Jackson v.

Metropolitan Edison Co., 419 US 345,

95 S Ct 449, 42 L Ed2d 477 (1974),

the Court held that the action of a

public utility in terminating

service to a customer was not state

action despite its regulation and

its performance of an essential

public service in which it possessed

at least a partial monopoly. The

action was not taken in the exercise

of a power ‘which is tradition-

ally associated with sovereignity.'

The performance of hospital services

is not usually so associated." 287

Or at 383, 600 P2d at 386.

Petitioner submits that a correct reading of

this court's prior decisions requires a

determination opposite that reached by the

court below.

« 48 =

This court's decisions recognize two

distinct lines of "state action." First,

state action may occur when the government

itself has “insinuated itself into a position

of interdependence" with a private actor so

that it becomes "a joint participant in the

challenged activity." Burton v. Wilmington

Parking Authority, 365 US 715, 81 S Ct 856, 6

L Ed 2d 45 (1961). Secondly, state accion may

occur when a private individual or institution

exercises "powers traditionally and exclu-

sively reserved to the State." Jackson v.

Metropolitan Edison Company, 419 US 345, 95 S

Ct 449, 42 L Ed 2d 477 (1974). Both lines of

state action can be found in the present case.

Both the state and federal govern-

ments have insinuated themselves into posi-

tions of interdependence with the defendant

Emanuel Lutheran Hospital. Defendant enjoys

federal tax exempt status and receives federal

‘funding pursuant to the Hill-Burton Act, 42

= oe EE REE ee

» 19 =

USC § 2689 et seq. (1976). The State of

Oregon, through its agency, the Health

Division of the Department of Human Resources,

licenses the defendant to provide health care

services. ORS 441.015; 431.325.

The defendant in this case also

performs a function traditionally performed by

government. Provision of health care services

has long been a function of state and local

government. See 2 McQuillin, Municipal

Corporations § 4.99 (1979). At common law,

courts held that municipalities could con-

struct and operate hospitals even without

express statutory authorization, the theory

being that such a function comes within the

so-called “general welfare power." Cumnock

v. City of Little Rock, 154 Ark 471, 243 SW 57

(1922); City of McPherson v. Nichols, 48

Kan 430, 29 P 679 (1892). See generally,

25 ALR 612 (1923).

a BO me

Petitioner recognizes that under

this court's prior decisions, the factors

listed above would not, standing alone, be

sufficient to subject defendant to the re-

quirements of the federal constitution.

Specifically, petitioner recognizes that

although the state and federal governments are

heavily involved in the funding and regulation

of defendant, they are not involved in the

specific activity about which petitioner

complains, as seems to be required by Moose

Lodge No. 107 v. Irvis, 407 US 163, 92 S Ct

1965, 32 L Ed 2d 627 (1972). Petitioner

also recognizes that while provision of health

care services is a function traditionally

performed by the government, it is not an

"exclusively" governmental function, as seems

to be required by Flagg Bros., Inc. v. Brooks,

436 US 149, 98 S Ct 1729, 56 L Ed 2d 185

(1978). Nevertheless, petitioner submits that

under the facts of this case, state action was

« Shwe

present when defendant terminated plaintiff's

staff privileges.

The essential distinction between

the present case and other decisions by this

court dealing with the state action require-

ment is that this case does not truly involve

a "private" entity at all. In addition to

performing a government function, receiving

government assistance, and being subject to

government licensing requirements, this

defendant operates under a charitable, non-

profit charter. As such, neither defendant

nor society in general have the same interest

in freeing defendant from the limitations of

the federal constitution as might exist in the

case of a truly private entity.

Private parties can make a persua-

sive claim to be free of federal constitu-

tional restrictions applicable to government

entities "because of the value of providing a

private sector in which the opportunity for

individual choice is maximized." Jackson v.

Metropolitan Edison Company, 95 S Ct at 464

(Mr. Justice Marshall, dissenting). A truly

private entity makes choices on the basis of

self interest, and under our socio-economic

System, it is assumed that such choices

will ultimately inure to the benefit of

society as a whole. A non-profit, charitable

corporation such as defendant, on the other

hand, does not make choices on a self-interest

basis, but rather makes choices on the basis

of what will best serve the public, the same

basis on which government makes choices. As

such, the reasons for limiting the reach of the

constitution over private entities disappear

where non-profit entities such as defendant

are concerned. 2

2. The opinion in Moose Lodge No. 107 v.

Irvis, 407 US 163, 92 S Ct 1965, 32 L Ed 2d

627 (1972) does not indicate whether the

alleged state actor was a non-profit corporation,

but even if it were, the present case would be

ek ee

This court's prior decisions require

that government encourage private activity or

that private activity be exclusively govern-

mental in nature as a prerequisite to finding

State action. These decisions should not be

extended to apply to non-profit, charitable

corporations such as the defendant in the

present case. This court should recognize the

distinction between this case and its earlier

cases and reverse the judgment of the Oregon

Supreme Court.

(b) Had the Oregon Supreme Court

correctly decided the state action

question, it would have been €

required to hold that the defendant

hospital did not comply with federal

due process requirements.

distinguishable because Moose Lodge did not

perform a government function. On the contrary,

Moose Lodge was found to be "a private club

within the ordinary meaning of that term." 92

S Ct at 1070.

o She

Defendant concedes, as it must, that

petitioner has a property interest in his

continued medical staff privileges with

defendant. See Board of Regents v. Roth, 408

US 564, 92 S Ct 2701, 33 L Ed 2d 548 (1972);

Perry v. Sinderman, 408 US 593, 92 S Ct 2694,

33 L Ed 2d 570 (1972). Accordingly, if

defendant exercised state action in termi-

nating that relationship, defendant was

required to afford petitioner procedural due

process. The record demonstrates that it did

not do so. Instead, defendant merely afforded

petitioner a "kangaroo court" form of hearing.

First, defendant did not afford

petitioner any hearing whatsoever prior to

suspension of his staff privileges. This

court's decisions clearly require that some

kind of hearing must be provided prior to

termination of benefits except in unusual

cases. Goss v. Lopez, 419 US 565, 95 S Ct

‘729, 42 L Ed 2d 725 (1975); Goldberg v.

Ee a ee Le a ee eee ay

oe Sw

Kelly, 397 US 254, 90 S Ct 1011, 25 L Ed 2d

287 (1970); Sniadach v. Family Finance Corp.,

395 US 337, 89 S Ct 1820, 23 L Ed 2d 349

(1969). See especially, Perry v. Sinderman,

supra (existence of post-termination hearing

held insufficient to justify termination of

public employment without prior hearing).

There were no facts in this case justifying

petitioner's summary suspension. The trial

court found as much when it concluded: "[Ijt

is difficult to understand why [petitioner's]

privileges could not have been continued ***

until the Executive Committee court had con-

sidered the matter." Trial Court Findings of

Fact, Conclusions of Law and Decree, Exhibit C,

page 13, Trial Court File pages 477 et seq.

(June 3, 1977). Clearly, this is not a case

like Dixon v. Love, 431 US 105, 97 S Ct 1723,

52 L Ed 2d 172 (1977), where the state had a

strong interest in the summary revocation of

« 26

an individual's driver's license as a means of

ensuring highway safety.

Even if a pre-termination hearing

were not required in this case, petitioner

would still have a valid due process claim

because the post-termination hearing was

constitutionally defective. This court has

held that an impartial decisionmaker is

essential if an administrative hearing is to

comply with the requirements of due process.

Goldberg v. Kelly, supra, 90 S Ct at 1022.

The members of the Executive Committee, which

conducted the post-termination hearing, were

far from impartial, as the record in this case

amply demonstrates. See page 3, supra.

Finally, the regulation under which

petitioner was suspended did not comply with

due process requirements because it was

unconstitutionally vague. The regulation

permitted defendant to terminate an employee

upon a showing that the employee did not act

"in the best interest of patient care." This

regulation is so vague that "persons of common

intelligence must necessarily guess at its

meaning and differ as to its application."

Papachristou v. City of Jacksonville, 405 US

156, 92 S Ct 839, 31 L Ed 2d 110 (1971).

Contrary to the suggestion of the court below,

the fact that this is not a criminal case does

not mean the void for vagueness doctrine is

inapplicable. See Hirschkop v. Snead, 594

F2d 356, 370-71 (4th Cir 1979) (state bar

disciplinary rule). The text of the Four-

teenth Amendment does not distinguish between

civil and criminal proceedings.

CONCLUSION

The importance of the questions

presented in this case merits full briefing.

The petition for certiorari should be allowed.

Respectfully submitted,

Preston C. Hiefield, Jr.

=«7Q«

Richard E. Alexander

E. Walter Van Valkenburg

Of Attorneys for Petitioner

fo tm

A-1 Le

November 21, 1979

Preston <. Mietictd, If.

Attorney ato Let

775 #eise ~ascace Building

Portland, «1% CT 204

Michare =. Alexander °

Attorrey it Lav

900 S. W. Fifth 23rd Floor

Partiand, (! ©7204

Pe: Straube vs. Fmanuel Lutheran Charity Board

St 24276

loeor Counsel:

The Supreme Court on fevember 20, 1979, ceniea

Anonoeltlant's Perition for Reheariner in the anove-centitiec

Moe wer,

Verv truly yours,

Marilyn Hartley

Supreme Court Calendar Clerk

athe

/vr

Coe vrilliar L. Mal lmark

Appendix A

ay On

A-2

STATE OF OREGON : ieee

SUPREME COURT

KURT R. STRAUBE, M.b., JUDGMENT and “IANDATE

Anpeal from NULTNOMAH County Circuit Court

No. 402 co

Appellant,

Vv.

SE. gS276

EMANUEL LUTHERAN CHARITY SOARD,

a corporation, dba Emanue!

Hospital,

ee ee ee ee ee ee ee ee ee

Respondent.

IT IS HEREBY ADJUDGED and ORDERED that the respondent's motion to

dismiss the appeal filed June 3, 1977, from the order of May 13, 1977,

is allowed.

This cause having come on to be heard on appeal and having been

duly submitted and considered:

IT IS HEREBY ADJUDGED and ORDERED that the decision entered below

in this cause is affirmed.

IT IS FURTHER ORDERED that respondent recover from appellant costs

and disbursements in this court taxed at $502.06.

The cause is returned below for further proceedings pursuant to

law and the opinion and order of the court entered September i8, 1979.

ISSUED at Salem, Oregon: DEC ic 1979

STATE OF OREGCN, )

County of Marion. )

1, LOREN D. HICKS, State Court Administrator for the State of Oregon,

do certify that this copy of ORDER is a correct transcript of the original,

ahich is on file in my office.

IN TESTIMONY WHEREOF, | have affixed the seal of the Court at

Salem, Oregon, this JEC *3 ‘a790

LOREN D. HICKS

State Court Administrator

Se L vate ft Taff

Sa 1

a°>

‘Deputy Administrator

a ae

i} Bre

A-3

No. 149—September 18, 1979

IN THE SUPREME COURT OF THE

STATE OF OREGON

In Banc*

STRAUBE,

Appellant,

EMANUEL LUTHERAN CHARITY

BOARD,

Respondent.

(No. 402-226 SC 25276)

Appeal frem Circuit Court, Multnomah County.

Clifford B. Olsen, Judge.

Argued and submitted February 6, 1979.

Richard E. Alexander, of Davies, Biggs, Strayer,

Stoel & Boley, Portland, argued the cause for appel-

lant. With him on the briefs was Preston C. Hiefield,

Jr., of Williams, Stark, Hiefield, Norville & Griffin, P.

C., Portland.

William L. Hallmark, Portland, argued the cause

and filed a brief for respondent. With him on the brief

were William A. Masters, and Jones, Lang, Klein,

Wolf & Smith, Portland.

William P. Isele, Chicago, Illinois, filed a brief

amicus curiae for the American Medical Association.

HOLMAN, J.

Affirmed.

*TONGUE, J., did not participate in the decision of this case.

*BRYSON, J., retired April 1, 1979.

[375]

A-4

_Cite as 287 Or 376 (1979)

rw | ee se +

HOLMAN, J.

Plaintiff, a radiologist, brought this suit against

defendant hospital for wrongful suspension of his staff

privileges. He sought an order restoring them and

enjoining the hospital from proceeding against him in

the future unless it did so in compliance with due

process and with its bylaws. Plaintiff also sought

compensatory and punitive damages, attorney fees,

and costs. Defendant moved for summary judgment

which was partially granted on the due process issues.

After trial on the remaining issues, the court con-

cluded that defendant had complied with its bylaws

and that there was a basis in fact for defendant’s

temporary and permanent suspensions of plaintiff's

staff privileges. Plaintiff appealed from both the

granting of the partial summary judgment and the

final decree.'

It is not disputed that plaintiff is an excellent

radiologist. Defendant suspended him for his inability

to work with others at the hospital, an inability that

assertedly interfered with adequate patient care.

Plaintiff started working as a radiologist in 1963 at

the Lloyd Center X-ray, a partnership that had an

exclusive agreement with defendant to provide its

radiology services. Plaintiff was temporarily sus-

pended by the president of defendant. Pursuant to

defendant’s bylaws, plaintiff requested and got a

hearing before the Medical Staff Executive Committee

(executive committee) of defendant. The executive

committee found that plaintiff was, in fact, a disrup-

tive influence, and continued his suspension until a

later date, when the executive committee would hear

further evidence to see whether plaintiff had resolved

his problems in his relationship with others; if so,

' Plaintiff also instituted an action against four individuals, claiming

they tortiously interferred with his business relationship with defendant

hoapital. He also lost that case at the trial level and appealed. The appeal in

that crxe was argued at the same time as the appeal in this case. See

Straube v. Larson, . —. Or , .. Ped __ (1979), decided this day.

[377]

A=5

Straube v. Emanuel Lutheran Charity Board

defendant would restore plaintiff's privileges on a

probationary basis.

Plaintiff appealed this decision to the Review Com-

mittee (review committee) as provided by the bylaws.

That committee conducted another hearing and found

that although plaintiffs behavior had perhaps been

disruptive, it was not so disruptive as to harm the

patients. Therefore, it recommended that plaintiff be

reinstated for a one-year probationary period.

Pursuant to the bylaws, the review committee

reported its conclusions back to the executive commit-

tee which rejected the review committee’s conclusions

and reaffirmed plaintiff's suspension. The executive

committee asked plaintiff to appear before it within 30

days to offer testimony to show that he intended to

work harmoniously. If he did so, it would reinstate him

on a probationary basis. They warned him that if he

did not so respond he would be permanently suspen-

ded.

Plaintiff did not respond and was permanently

suspended. He appealed his suspension to the hospital

Board of Directors (board). It concluded that plaintiff's

disruptive behavior impaired the function of the

radiology department which, in turn, was “inconsis-

tent with the best interest of patients’ care.” It

therefore affirmed the permanent suspension. There-

after, a joint conference committee of the hospital

voted unanimously to approve the board’s action. The

board reaffirmed its position in a subsequent meeting.

Three months later plaintiff filed this suit.

Plaintiff's due process argument is:

“The actions of private, non-profit hospitals are so

effected [sic] and intertwined with the public nature

of a hospital that such hospital must afford physi-

cians some element of due process of law.”

He identifies the following sources of this due process

right: common law, Article 1, section 10, of the Oregon

Constitution, and the Fourteenth Amendment of the

[378]

A-6

Cite as 287 Or 375 (1979)

United States Constitution,? each of which will be

considered in turn.

The term “common law due process” is unfortunate

because of the tendency to confuse it with Fourteenth

Amendment due process; “fair procedure” is a better

term. In those states which recognize it, it is a rule

having both substantive and procedural aspects which

controls the actions of some private entities.* In

Pinsker v. Pacific Coast Soc. of Orthodontists, 1 Cal 3d

160, 81 Cal Rptr 623, 460 P2d 495 (1969), for example,

California adopted a common law requirement of “fair

procedure” for private orthodontic associations, even

though membership in such organizations was not

necessary to practice orthodontics, becatise member-

ship in the associations was “a practical necessity for a

dentist who wishes not only to make a good living as

an orthodontist but also to realize maximum potential

achievement and recognition in such specialty.” 460

P2d at 499. The follow-up case, Pinsker v. Pacific

Coast Soc. of Orthodontists, 12 Cal 3d 541, 116 Cal

Rptr 245, 526 P2d 253 (1974), holds that arbitrary

conduct by an organization such as the Society of

Orthodontists is forbidden by the common law, and

that “an organization’s decision to expel or exclude an

individual may be arbitrary either because the reason

underlying the rejection is irrational or because the

organization has proceeded in an unfair manner.” 526

P2d at 259.

Plaintiff contends there is a duty of fair procedure

placed upon defendant in suspending his hospital

privileges because those privileges are very important

to plaintiff in pursuing his career and that the trial

? Plaintiff makes the common error of asserting that all these “due

process” provisions are violated at once, whereas, in fact, if the common law

gives him the rights he seeks, the constitutions are not violated, and if the

state constitution gives him those rights, the federal constitution is not

violated. See Linde, Without “Due Process”"—Unconstitutional Law in

Oregon, 49 Or L Rev 125, 133-35 (1970).

* Eg., Ascherman v. San Francisco Medical Society, 39 Cul App 3d

623, 114 Cal Rptr 681 (1974); Falcone v. Middlesex Co. Medical Soc., 34 NJ

582, 170 Add 791 (1961).

[379]

A-7

Straube v. “manuel Lutheran Charity Board _ ioe

court erred in granting the partial summary judg-

ment. He states that the cases which recognize such a

right require “a hearing, timely notification suffi-

ciently prior to the hearing to allow adequate prepara-

tion of defense, a written statement of the charges

against the individual, and the right to call his own

witnesses before the committee.” This court has never

decided whether there is such a duty in Oregon, and it

is unnecessary to do so in this case because, if such

duty exists, it was complied with in this case.

Compare Huffaker v. Bailey, 273 Or 273, 540 P2d 1398

(1975).

Plaintiff points out all sorts of procedural shortcom-

ings in the hearings he was afforded by the hospital

staff which would be more appropriate had they been

addressed to a court proceeding. This was a proceeding

conducted by non-legally trained persons and there is

no necessity that it be conducted with the preciseness

of a trial at law or equity in order to be procedurally

fair. The executive committee hearing the matter was

composed of approximately 20 physicians, many of

whom chose to question witnesses despite the presence

of attorneys representing both plaintiff and the hospi-

tal. Plaintiff contends he was not permitted to show

bias and prejudice of witnesses. In fact he was allowed

the usual means, which is cross-examination. He

contends he was not given a concise statement of the

charges against him. He was given information of

specific circumstances that occurred in connection

4 Subsequent to the proceedings before the hospital committees and

boards, the legislature enacted ORS 441.055(3Xc), which provides:

"(3) The governing body of each health care facility shall be

responsible for the operation of the facility, the selection of the medical

staff and the quality of care rendered in the facility. The governing

body shall:

“es ¢ oe © #

“(c) Insure that procedures for granting, restricting and terminat-

ing privileges exist and that such procedures are regularly reviewed to

assure their conformity to applicable law * * *.”

Or Laws 1977, ch 448, § 10, and ch 751, § 23a.

{380]

A-8

Cite as 287 Or 375 (1979)

with the making of particular hospital records from

which records he could have determined all necessary

information. He secured as much or more information

about the charges than he would have received from

the average criminal indictment. He made no request

for the relevant hospital records but proceeded to

hearing.

Plaintiff contends he did not have an opportunity to

call witnesses because defendant did not require the

attendance of the witnesses he wished to examine.

Defendant did not have subpoena power and, of course,

could not require anyone’s attendance. There is evi-

dence that persons whom plaintiff requested to appear

asked representatives of defendant whether they had

to appear and were told, truthfully, they did not have

to; but there is no evidence that defendant discouraged

or dissuaded anyone who was so inclined from appear-

ing and testifying. In fact, some persons did appear

and testify in plaintiff's behalf.

Plaintiff complains that the committees before

which the hearings were held were not impartial and

that they considered information outside of the record.

There was testimony that when the approximately

20-person executive committee deliberated after the

hearings, as is usual with a jury, some things were

discussed which were not relevant to the record and to

the problem at hand. This situation was aggravated in

that the difficulty between plaintiff and the other

staff physicians and employees was of long standing

and that many of the members of the committees and

boards which sat in judgment were aware that things

in the particular department in which plaintiff worked

had not been all sweetness and light. However, we

agree with the trial judge that plaintiff did not carry

the burden of proving that the members prejudged the

charges against him or that the proceeding was basi-

cally unfair.

Plaintiff charges that the bylaws and regulations

for summary suspension were vague and overbroad

[381]

ee ee A TN ee eee Nee ee ere Tere me me eae

A-9

Straube v. Emanuel Lutheran Charity Board

and were not followed. “Vagueness” is a fatal fault

specifically in criminal law. Compare State v. Hodges,

254 Or 21, 457 P2d 491 (1969) with Anderson v. Peden,

284 Or 313, 324, 587 P2d 59 (1978). It is our conclusion

that the bylaws were substantially complied with and

that the standard, “in the best interests of patient

care,” is as definite as was practical. In Huffaker v.

Bailey, supra, 273 Or at 276-77, we held that “a high

quality of medical care” was not impermissibly vague.

Plaintiff contends that he was given no opportunity

by the bylaws or in fact to be heard in advance of the

summary suspension order. It is true the bylaws do not

provide for any such hearing nor was he given one.

Assuming that plaintiff is entitled to “fair procedure”

under a common law theory, we cannot say that he is

entitled to a pre-suspension hearing when the best

interest of the patients may indicate to the contrary.

In addition, the extent of the hearings to which he was

entitled in order to receive fair treatment is related to

that which he could reasonably expect when he en-

tered into his relationship with the hospital. Fair

procedure in a common law sense is not constitutional

due process. When plaintiff joined defendant’s medical

staff he signified “his agreement to abide by these [the

hospital’s] bylaws and regulations” and they provided

for immediate suspension if required by “the best

interests of patient care in the hospital.”

Plaintiff cites Article I, section 10, of the Oregon

Constitution. It states:

“No court shall be secret, but justice shall be

administered, openly and without purchase, com-

pletely and without delay, and every man shall have

remedy by due course of law for injury done him in

his person, property, or reputation.”

Of course, if defendant’s discharge of plaintiff did him

a legal injury in his property, as he asserts, the

proceedings in the trial court and in this court are

precisely the remedy by due course of law to which the

section entitles him. The question is not whether the

|382]

A-10

__ Cite as 287 Or 375 (1979)

courts will afford him a remedy but whether defend-

ant did him an injury under the law. In any event,

Article I, section 10, itself does not direct the defend-

ant to give him a remedy by due course of law. The

section does not address a directive to private parties.

Plaintiff ciaims that the hospital is suffiently

involved with the state to owe him “due process of law”

under the Fourteenth Amendment of the United

States Constitution.® He argues that “state action” is

involved here because of “federal funding, charitable

solicitation from the general public, federal tax ex-

empt status, and vital service to the general public.”

However, he cites no authority that this is sufficient to

constitute state action for the purpose of constitutional

due process. In Jackson v. Metropolitan Edison Co.,

419 US 345, 95 S Ct 449, 42 L Ed 2d 477 (1974), the

Court held that the action of a public utility in

terminating service to a customer was not state action

despite its regulation and its performance of an

essential public service in which it possessed at least a

partial monopoly. The action was not taken in the

exercise of a power “which is traditionally associated

with sovereignity.” The performance of hospital serv-

ices is not usually so associated.

For his next assignment of error plaintiff contends

the trial court erred “in refusing to grant plaintiff a de

novo review of the decision suspending plaintiff's staff

privileges.” Defendant contends that plaintiff is not

entitled to judicial review at all. We have assumed

(but not decided) for the purpose of this case that

plaintiff is entitled to “fair procedure” as a common

law right. This could only be assured of by some sort of

court review.

The bylaws in this case say nothing about judicial

review per se. They do, however, provide for review by

5 “* * * nor shall any State deprive any person of life, liberty, or

property, without due process of law * * *.”

[383]

A-1l

Straube v. Emanuel Lutheran Charity Board

various hospital committees to be conducted as fol-

lows:

“The representative of the Board of Directors or

Executive Committee shail have the obligation to

introduce evidence in support of its action or recom-

mendations, but the applicant or member of the

medical staff for whom the hearing has been con-

vened shall thereafter be required to bear the burden

of proving that the action or recommendation in

question was arbitrary or unreasonable.”

There is nothing about the statute, the bylaws, or

common sense which indicates that a court at either

the trial or appellate level should decide the merits of

plaintiff's dismissal. It would be unwise for a c~urt to

do more than to make sure that some sort of . :ason-

able procedure was afforded and that there was

evidence from which it could be found that plaintiff's

conduct posed a threat to patient care. Courts are not

knowledgeable about hospital operations or patient

care. The bylaws to which plaintiff agreed when he

accepted staff privileges provide for the decision to be

made by persons with training in those fields, and

there is no reason for upsetting their decision so long

as there was a rationale therefor. Compare Huffaker v.

Bailey, supra at 280-81 (applying a “good faith and

adequate factual basis” scope of review in a case where

a hospital denied a doctor’s application for admission

to the staff).

Plaintiff's next assignment of error contends that

there was no evidence upon which the trial court could

find that the hospital acted for cause and in good faith.

We disagree. A physician’s inability to work with

others which jeopardizes patient care is good cause for

terminating his staff privileges. Compare Huffaker v.

Bailey, supra, 273 Or at 277-79, which holds that a

physician’s application for staff admission may be

denied for inability to work with others. The facts

show an adequate basis for defendant to conclude that

plaintiff was unable to work with others and that this

inability did jeopardize patient care. Nothing is to be

[384]

A-12 B-1

Cite as 287 Or 375 (1979) bree? "a [eA

E Slee ty -_

: eet ead [ey

gained by reciting the voluminous evidence upon the roe pee pe ong

subject. } 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON

. . . ? i SS - ”-y

Plaintiff charges as error the trial court’s finding 2 FOR THE COUNTY OF MULTNEMART =

that defendant followed its bylaws in connection with | 3 KURT R. STRAUBE, M.D., 16 SUN nee

the summary and permanent suspension of plaintiff's . F SRG Apso" gl re Oe Se” sictaaiae

staff privileges. In this regard plaintiff alleges a oe : > eens S

failure (1) to notify him in concise language of the 5 vs.

grounds for the Executive Committee action; (2) to 6 ROGER LARSON, EMANUEL LUTHERAN ) FINDINGS OF FACT, CONCLUSIONS

provide him with a review committee whose members , CHARITY BOARD. a Corporation, ¢ba ) OF LAW AND DECREE param iy JOURNAL

did not actively participate at the Executive Commit- : : 3 197

. ide hi ith bl rtu- : 8 Defendants. ) JUN

tee level; (3) to provide him with a reasonable opportu

nity to be heard and to present evidence; and (4) to 9 Defendant Roger Larson's Demurrer having been argued,

. , . ; ¢ )

provide a the pled call, erent “er revo : 10 and sustained, and the plaintiff having not plead further, and

examine witnesses. 1 e exception 0 oO. :

these are the same kind of deficiencies in procedure 11 Defendant Emanuel Lutheran Charity Board, a corporation,

which he claimed deprived him of “fair procedure” as a 12 aba Emanuel Hospital, having moved for summary judgment and, in

common a and leags be — rs “i d im ae 13 the alternative, partial summary judgment, and

that issue. Since we have already determin a

° ° . ; nai l ;

defendant did meet these procedural requirements, it 14 The remainder of the above entitled cause having come

is unnecessary to discuss further this assignment of IS on regularly for trial before the above entitled Court on the

error. With regard to the claim ig meager me on i 16 2lst day of April, 1977, plaintiff appearing in person and by his

i i i mmittee whose members

provided with a wre = ° : ; 2 17 attorneys Preston C. Hiefield, Jr., and Charles Paulson, defendant

not actively participate at the executive committee ; os

level, plaintiff admits that the review committee did : : 18 appearing by its attorneys Robert P. Jones, Robert M. Keating and

not include any person who sat on both committees. : 19 John F. Folliard, Jr., testimony and exhibits on behalf of the

° . . t , . : “ f5

i ha obj t hang rete Rey ae etree 53:33 20 parties having been received in evidence, the Court having heard

ing the transcript of the executive committee ; ae :

as to its taking testimony. It would seem reasonable air 21. and considered the testimony and having examined and considered

that such should be the functions of a review commit- : 5221522 the exhibits and having heard and considered arguments on behalf

7 . . . th b ] hi h ; =<ace

tee : 25

P , and plaintiff points to nothing in the bylaws whic z:** 23 of the parties, and having filed a Memorandum Opinion, and

indicates they should not. . ae

ff ss : : 24 The Court now being fully advised, hereby makes the

cree j urt i irmed. | $

The de of the trial sg gis ; 3 25 following Orders, Findings of Fact and Conclusions of Law and

; 26 Decree:

Page ) - FINDINGS OF FACT, CONCLUSICNS OF LAW AND DECREE

ae Appendix B

ee ae

[385]

WILLIAMS, STARK. HIEFIELD. NORVILLE & GRIFFIN. F.C.

o on oo uv ff WS NR &

sa §973 me 2078

ORDERS

The Court's judgment order on Demurrer, signed May 12,

1977, and entered May 13, 1977, marked Exhibit "A", attached

hereto and by this reference made a part hereof is restated in

its entirety and for the purposes of any appeal is deemed entered

as of the date hereof.

The Court's order of partial summary judgment, signed

March 29, 1977, and entered March 30, 1977, marked Exhibit "5",

attached hereto and by this reference made a part hereof is restated

in its entirety and for the purposes of any appeal is deemed entered

as of the date hereof.

FINDINGS OF FACT

The Court's written Opinion dated May 6, 1977, marked

as Exhibit "C", is fully incorporated herein by reference as

Findings of Fact.

Based on the foregoing Findings of Fact, the Court

makes the following:

CONCLUSIONS OF LAW

l. Plaintiff failed to prove the material allegations

of his Complaint.

2. The summary suspension was authorized by the Hospital

by-laws taken in good faith and with cause.

3. The Hospital hearings and procedures relating to the

suspension did not violate Hospital by-laws.

2 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECREE

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ATTORNEYS AT LAW

778 Bores Casceveg Buiiowne

PORTLAND GRE ION 07208

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WH LIAMS. STARK. HIEFIELO NORVILLE & GHIFFIN. PC

Page

per

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4. To date Plaintiff has suffered no monetary damages.

Based on the foregoing Orders, Findings of Fact and

Conclusions of Law, the Court hereby makes and enters the following:

DECREE

NOW, THEREFORE, IT IS HEREBY ORDERED and DECREED that

Plaintiff take nothing by his Complaint and that it be dismissed

and that Defendant have, take and recover judgment against the

Plaintiff its costs incurred herein taxed in the sum of $

DATED this 3 day of

IRCUIT JUDGE

3 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECREE

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EXHIBIT “A”

so. 0% :

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAII

KURT R. STRAUBE, M.D., ;

Plaintiff, )

v. )

) JUDGMENT ORDER ON DIMURRER

EMANUEL LUTIIERAN CHARITY BOARD, ) FOR DEFENDANT ROGER G. LARSON

a corporation, dba EMANUEL )

hOSPITAL, ;

Deiondant. )

This Court, having previously entened an order

sustaining the Denurrer of Defendant Roger G. Larson, and

Plaintiff not having pleaded further, it is hereby

ORDERED AND ADJUDGED that Defendant Roger G. Lazson

shall have judgment against Plaintiff for his costs as herein-

after taxed and that Plaintiff's Complaint be dismissed and

Plaintiff shall take nothing theroby.

VATED this > day of May, 1977.

, Sela rehy a or

Mae 5 gs Se Pe

,Clittord 8B. Ulsen

Circuit Judge

Page JUDGMENT ORDER ON DEMURRER FOR DEFENDANT ROGER G. LARSON

Anenetedateas ote

Page

B-5

IN Vb CURCULT COURT Ch itn STALE OF OR Lea:

LOK ‘Wi: COURT Ui

Meh PNOMAll

RKUKY Re STRAUBE, ‘ii.

Plasacifl,

Nu. FU2-260

QR 2 ON VirehNAS 8. NOTLON

EMANUEL LUTHERAN CUARETY BOARD, * FOR SUMMARY Juul T

a corporation, dba bLMANUEL

HOSVLTAL,

Defendant.

et Ne Na et ee et ee ee ee *

Motion of defendant Lwanucl Hospital for Lull aad/or

partial suamary judgment having come on for argument, piainiilf

appearing by Richard Alexander and V’resion C. lieliclid, Jr. of

his attorneys, and defendant appearing by Robert Me. Acaiing of

its attorneys, the Court revicwed the pleadings and mewerandsa

filed herein and the affidavits, depositions, and cahibiis

submitted in support of and in opposition to the motion, and

the Court being fully advised in tic premises:

IT 1S TERELY ORDERED AND ADIUNGED that Mart to of the

motion for full summary judgment is denied, and Subparagrapis (2)

and (3) of Paragraph Jl are dented, Subparagevaphs (1) and (4) ave

allowed and,

IT 1S WEREBY ORDERED AND ADJUDGED that defendant have

partial summary judgment in its favor as to the allegations of

Paragraph VII, Subparagraph a. and b. of plaintilf''s Third Ancnded

Suit, and,

L = ORDER ON DEFENDANT'S MOTLOR FOR SUMMARY JUDGMENT

™ "p*

2:22 4973 me 2031

e *

e°s23

Tewtr= 2 @ 522.4402"

-9"43".

ese...

eooe LUE TAS ee

1 IT iS PURTHER ADJUDGLG Lihat should platmtiat obtain

2 judgment in his daver, he is not entitled tu punitive Uamapes.

3 DATED this 27 day of March, 1977,

ED ae al a

5 if (ha ‘ if Mo 9

jd bliord Be Gilson

Carcuit Judge

Pape 2 = ORDER OR DEFERDANT'S MOTION FOR SUMMARY JUDGMENT

Pape

sib gece 1979 rue 2033

IN THE CIRCUIT COUAD CF SHE STATES OF OnLECH

POy THE COUNTY CY NULIMICMAN

WUT NR. LTRAURE,

Pliintif?, 0. 402-226

OPLUICA

Teeserses © 7 oH rrseHm OP Oe cas rye

da eledvy leds bo acd cen diet CHARITY

b> ee *: v rl eee ome es ; -

HOARY, @& Coorg, ALL ON, iba

Miley HOoriTsAL,

Defendant.

6240 4S Ws YS Ye

Plaintiff is a radiologist. For a number of years he wos a

menbes of uleyd Counter X-kay, a croup cf vadiolocists who provided ali

x-rey socovices for hmanuecl Hospital. S3:cause most of plaintiff's effort

fer she partnership related to hospival based activities he nad stall

privileges at Emanuel.

On January 30, 1975, the president of defendant hospital, roger

Ilarsor., temporarilysaspended plaintiff's staff privileges. 7

La)

advising plaintiff of the president's action recited in parts 7. « «

your recent actions rave becoue so disruptive within the radioloc; dc-

partaent thay we are having severe difficultics in wmaintaininc tccunical

etaff ty continue cffective operation of the department; thus, in my

opinion, this suspension is necessary in the best interests of patient

(Ex. 11)

care at Enanuel Nospital."

Plaintiff rcqucsted a hearing before the Staff Exccusive

Coanittee. Cn February 19 and <0, 1975, a hearing was held. The mnjor-

ity of the cermittce found: P |

Ll - oPrinics

Page 2 - OPINION

B-8 850 £979 rece 2034 |

"The testinony presented has Cenonstrated that he

(le. Straube) nas been a disruptive influence on :

tha Sunetion OF and tie Lannony wibhia tae sadcioe

logy departzicns.

"It is the opinion of the Exceutive Committee 2.

that certain personalits traats of Ur. Straube cave

contributed substantially to the current conflicts."

+ ~e

The Comuittce concluded:

l. Plaintiff's temporary suspension should be continucd.

2. On July 21, 19723, the Committee would hear further testi-

mony to ascertain whether or not plaintiff had resolved his "personality

problezs".

3. In the event of such resolution plaintiff's privilcces

» 1972.

would be restored upon a probationary basis effective August

(=x. 17)

fsa na Lot.

Plaintiff was dissatisfied and appealed the Exccutive Comnittee

Gccision. Pursuant to the provisions of the By-Laws, a Review Committee

was convened and hearings were held before that body between June 14 and

September 12, 1973. On October 17, 1973, the Review Committee rendered

its decision and concluded:”

1. he testimony “succestcd" that Dr. Straube had "been a

Gisruptive influence on the function of and the harmony within the radio-

losy department .. ." :

2. The plaintiff's disruptive influence was not of “sufficient

Gecree to result in harm to the paticnt(s)."

%3. Plaintiff's “personality traits . . . have contributed ;

substantially to the current conflicts." ! fae

4, The evidence was not sufficient to warrant cunmary suspensic

ewe

820 1979 ce 2035

and

c RC ea eee : : a Pex cat ‘ :

ve Paadineilys Lnouke be reinstated fora "Onoevese recooblone

~ . ciitaal

ary period." (Ex. 25)

the conclusion: of the Review Comnitted were seported to the

Executive Comittee, which on November 1, 1975:

1. Reaffinrucd its earlier position;

2. Requested that plaintiff appear dbcfore the Committee within

30 days, at which time it would consider testimony frou the plaintiff that

he intends to work in the radiology department harzoniousl;;

3. Assuming plaintiff's testimony was satisfactory, the

Executive Conmittee recommended that Dr. Straube be reinstated upon a

probationary basis; and e

4. In.the event plaintiff did not respond to its request, the

Executive Committee recomnended permanent suspension.

Dr. Straube rejected the proposals of the Executive Committee

and appealed his resultant permancnt suspension to the Board of Directors.

(Ex. 26) On December 4, 1973, the Board heard the appeal and found:

l.. Dr. Strauve had deen a disruptive influence in the radiolom

departnent; a

oe 2. That the plaintiff's personality traits had contributed

substantially to the conflicts and cisharmony within the department;

3. That the department cannot function cfficiently or satis-

factorily with Dr. Straube on the staff; and

4%, That the disruption and conflict which were determined to

exist were “inconsistent with the best interest of patient care." (Ex.

9c)

Page

B-10 Sock LU LE CUS

The Joint Conference Committee received the action of the

)cember 19, 1975, and voted unanimously to approve the Roar!

Board on

€ccision. Zhe Board then reaffirmed its decision of December 4, 1973,

at its next meeting, which was held in January 1974. (Exs. Gc and %e)

Cn April 19, 1974, plaintiff filed this suit for reinstatement,

injunctive relief and damages.

COWTENTIONS OF PLALNTIF¥

Plaintiff's contentious are embodied in Paragraph VII of his

third amended complaint. Ue contends:

1. Denial of duc process (Faragraph VII a and b);

2. Failure of the defendant to comply with its own by-laws

(VII c); sand

3. No basis in fact existcd to warrant suspension of plain-

tiff's staff privileces (Faragrapa VII a).

On farch 30, 1977, this Court entered an order for partial

summary judenent in respect to plaintiff's first contention and this suit

was heard upon the remaining two claims.

is 4 FINDINGS

Generally the Court-finds that the defendant did follow and

comply with the =manucl Hospital Staff By-Laws in respect to the actions

it toox in respect to the plaintiff. Further, the Court is of the opinio

that there was a basis in fact for defendant's decision to first tempor-

arily suspend and finally terminate plaintiff's staff privileges. These

ceneral conc)usions are predicated upon the following specific findings:

COMPLIANCE wIT! THE BY-LAWS

Plaintiff urges that defendant failed to comply with the staff

% = QPINICIH

ne a AR tha Me Pel ate, Gh Res Raa Dit te ew

Pe eee

ee ee aed

Page

B-1l

ah Mita oe

by-laws in four particulars which will be considerve in order.

First, 26 25 claim thot lefendaut cic not notifs plntaepes

an concise language the crounds of the Lxeccutive Committee action. (Sx.

6) Art. V, Section l(c), provides in part ané in effect upon receipt of

a request for hearing before the Review Committee the seeretary-treasurer

of the Executive Committee will “notify the applicant . .. in concise

language the grounds for the action (of the Executive Comnittec)".

On May 2, 1975, plaintiff was advised by registered mail of the

time, place, date, and in concise lancguace, the "charges" which were

brought before the Executive Committee and to be reviewed by the Review

Committee. Plaintiff objected shat “charces" were distinct from "rounds".

when the matter was not resolved detween the partics and their attorneys,

plaintiff? went to court and obtained an order directing cefendant to ad-

vise hin of the “grounds” for the Executive Committee action. Thercafter,

plaintiff was provided with a list of the "five crounds" for the action.

The "Grounds" were identical to the "charges" about which plaintiff was

advised on Nay 2. (Exs. 20, 1 thru u)

Assuming that plaintiff was not initially advised of the "ground.

he was properly apprised of tiie “Grounds"well before the first hearing at

the Review level on June 14, 1973.

Secondly, plaintiff charges defendant did not select a Nevicw

Committce whose nembers did not participate at the Executive Corusittee

level. The record established that the five members of the Review Conm-

mittee were: (1) selected by the Exccutive Committee; (2) none of the

Review Conmittce members were cither nembers of or witnesses before the

5 - OPINION

Br12 > 979 ne 2088 -

} contention. oo

2 Upon argtsrent counsel for plaintiff succgested that in cffeet 4

3. the Review Committce participated in the Executive Commi ttce proceeding ah

4 because cach member had before the June 14 hearing read the transcript: |

s of the Executive Comuittce proceecings. The Court does not cquate read= *;

6 ing the record of a proceeding with participation in that proceeding. ser

7 Also it must be remembered that the Review Comatctee’ was” og

g with the responsibility of determining whether or not the Executive Come. 3

9 wittee's action or recommendation was arbitrary or unreasonable.

10 Geteraination could only be made after a review: ofathezeviGence ape ‘whit

11 the action or recomacndation was based. The contention that the? Review

12 Committee was improperly manned is withouc merit. Gee 3 Ex. » Gs Act, Ta

13. Section 1(D), Staff By-Laws). -

14 Thirdly, plaintiff maintains he was not afforded a al reas

1S cpportunity to be heard and to present docunentaryrevidencass me

16 has on ¢wo occasions read the entire record of proceedings before ‘Execu-

i7 tive and Review Coumittees. These records demonstrate that ‘uiatice Se

18 siven whatever tine he desired to be heard. His opportunity to pres

19 evidence was unfettered. ee is without merit... (See Exo. 1-38

20 through 5). ola -3 aera

21 Finally, plaintiff alleges dcfendant failed to “Provide: hin with

22 the right to call and examine witnesses, introduce exhibits and. cross- oe

23 cxanine witnesses. For the reasons expressed. inerecard.: ato: plaintifs's:

24 third contention, the Court finds no nerit to the claim that he was wen “*

2$ given the opportunity to introduce exhibits or ‘eross-exanine witnessoan

26 In resvect to the remaining aspect of this allegation, is 1023

Page G - OFINION ‘

ete Pee peas

B=<13 SK LY te 20939

he was not provided the sight to call witnesses, plaintirs

inf M “=. - ee MLAs Sars ba :

BClenearwt 223 SOMr Ranres °o BAaVe compelled cer

‘ aren fee ” ~ esiseeny 3 Spee emia. 6 : ‘

Bhonpital employees whom he enuncrated to tesbily before

Uf course, the cef

to compel any person to attond the hearing - it has no subpoena powers.

A fair reading of Art. V, Section 22, of the by-laws, (pertaining to

members' right to call and examine witnesses) succests the nember may

request ary witness he Ccesires *o attend the hearing.

In the event the

witness is in attendance, the member must be given the right to exanine

the witness. This subsection of the by-laws cannot be construcd to mean

the Comnittce has the obligation so produce any particular person or

~_v=m

persons requested by the member. in the Court's vicw the Committee con-

plied with the by-laws waen the Committee permitted plaintiff to examine

any witness he was able to voluntaril: sit vo attend the procerding

A more scrious question might exist if the defendant or the

Review: Couimittee actively discourcced witnesses plaintiff desived to call

from attending the hearings. The record, however, docs not establish

that this occurred. ¢

Plaintiff wrote nineteen incividuals and requested their atten-

dance bcfore the Review Committee. Apparently some of these

jadividuals

inquired of defendant's attorney if they hoc to attend. They were tole

that they did not, but that they were frce to do so if wished. Noe

they wished

one was discouraced or urged not to aceccde to plaintiff's request.

' It is worth noting that of the nineteen individuals plaintiff

solicited, three did appear bdefore the Committee. Eleven had testificd

before and had been cross-examined dy plaintiff's Atorney at the Executiv

Page 7? = OFIZICN

B-14 scx £979 mace 2030

Comittee hearings. Of the remainder only one witness (Doris mellyv) was

Consisercd important enough to depose for the purposes of this teinl.

(Exs. 22a and b; Exs. 1-5). The Court concludes there is no nerit to

ti.is lecation, dut even if the clain is technically Beritorious, the

plaintiff? did not suffer therebdy.

NO BASIS Jil FACT FOR THE SUSPENSION

OF PLAINTIF?'S SPALe PRIVILEGES

It was the conclusion cf the Executive Committee and the Review

Committee that the evicence those bodies considered demonstrated that

pluintiff had been a "disruptive influence" in the radiology departzent

and that his “personality traits . . . have contributed sudstantially to

(Exs. 17 and 25).

the current conflict". Neither bedy found any other

besis for the action recommended. The first inquiry, therefore, must be

whether or not a "disruptive influence" or a personality that "substan-

tially contributes to conflict” within a hospital department is a basis

for suspension or termination of staff privileges. A recent decision of

the Oregon Supreme Court leads to the conclusion that the incuiry; must be

answered in the affirmative. In Huffaker v. Baile-, 273 Or. 273, 540 Ped

1239S (1975), on p. 278, the Court stated:

"Host other courts have found ba a the factor of

ability to work smoothly with others is reasonably

related to the hos pital's abacae of cnsurince patient

welfare. This conclusion scenms justified for, in

the modern hospital, stuff members are frequently

required to work together or in teams, and a menber

who, because of personality or otherwise, is inca-

pable of getting along, could ceverely hinder the

effective treatment of paticnts."

The remaining inquiry, therefore, is whether in fact the evi-

dence cupports the conclusions that led to plaintiff's suspension.

Poge & - OPINION

~. o ~s a wu“ 4 w

Page 9 - OPINION

aca 1979 mace 2091

It is frequenbly difficult to demonstrate the cauce of cisrup-

tion ane contlict becauce it so often consists of a prrecern of Selavios

S opposed to isolated but cramatic events. The "case" S552n56 Os.

Straube falls into the former cotcpory.

Naving read the transeriptc, the Court senecd +h

tiff was in fact disruptive and the cause of turmoil in the radiolorcy

department. The following incidents, while not inclusive, are typical

of the actions of the plaintiff which compelled the conclusions last

expressed. ‘2)

Fred Warren, chief technician in the radiology departrent, on

one occasion thanked a technician on behalf of "Dr. Haugen (chief of the

radiclocy department) and myself" for their food work. Or. Straube tool

umbrace with Warren because his (Straube! s) thanks were not also included

(=x. 1 l, P- 74). |

Warren suggested to plaintiff he might approach Dr. Haugen

and inquire what he (Dr. Straube) might do to help the department accor-

plish its goals and objectives. Dr. Straube replied it was against his

moral and ethical character to do that (Ex. 1, p. 103).

Ardis Clark, a supervisor of the outpatient department, testi-

. fied that plaintiff was late in her department two out of five cays per

week. His lateness varied from one-half hour to two hours. dr. Straube

was the only doctor who was late without explanation or making arrance-

ments for cover (=x. 1, pp. 1227-125).

On ancther occasion firs. Clark complained about Dr. Straubde's

tardiness and he told her ‘the patient doesn't come first; Dr. Straube

comes first". (Ex. 1, p. 127).

re ee

wo @

Page 10 - OPINION

B-16 i) > yg 1979 ce 2032

Jeanne coordinator, special procedures

Shananier, assistant

Geprrtreat, reported that or. Otraude Left a patient on the x-ray table

for an hour white he closetcd himseil with another doctor. After many”

¢ vt -<.. KK... tS ls

requests for his presence, Ma's. Shanundcer was requested to find a resident.

to complete the srecedure (pp. 126, 137).

On anothe>s occasion Dr. “Straube delayed a procedure when ise

went for coffee. waren the treating coctor showed up inquiring after-the’™

sucgested the 2elay was the fauit of Mrs. Shanancés“f

The witness testified:

that in fact Dr. Straube had not ordered such film ngchs 140)...

patient, Dr. Straude

vecause she had not odtuined a fi he had ordered.

hac entertained >

the Genartment. She attributed tension and disorganization in se

partment to Dr. Straube and reported shat "the department runs more:

smoothly when Dr.

Del Velenc?

truube isn't there" (pp. 143-145)... ge ete

a a < ate ee > ae fa

henko, special procedures ‘Supervisor, Felat ed thats

Dr. Straube was frequently late for procedures without advising the staff.

This, he related, ticd up the procedure room to the detriment of the bg a

paticnt and others wanting the room (Ex. 1, pe 154).

He also described plaintiff's practice of scheduling ‘dummy — 4g

arteriograns"which precluced scheduling viable procedures (P. 154). This-.

£. rh Wiel

witness related an instance when plaintiff ee a procedure so another .;

‘ : _— -4F ai Sy oe

1 ca aS is

59). i eee

On January 29, 1973, plaintiff caled. Velenchenko, at. his

doctor "could not use his room" (p.

io feeies ¢

learned that the witnes 5 had aicumnined several”: > ay,

“i

The conversation of his which was taped JY ne

after Dr. Straube hod

instances of his latencss.

Dr. Straube and overheard by Dr. Banks was a Serty-aiante tirade (Exe. nooig

=> larg 7B»

Page 1) = OPIITON

sex $973 mse 2093

@he Sollewing day plaintiff ordered Velenchenko into a

view room, turned off &11 the Lichts but one view box because "I wor’

to see the expression on your face when I talk to you." Flaintife then

inquired further about the practice of documenting plaintiff's tardiness.

Dr. Seapy, a resident in the radiology dcpartzrent, related an

vee

instance whcn plaintiff, to the witness's humiliation, directed the surci-

cal nurse to assist with a special procedure while Scapy acted as circula-

ting nurse (zx. 1, p. 248).

On another occasion Dr. Seapy was examining a patient who was

apparently unconscious. Dr. Straube came by and criticised Dr. Seapy

for not recognizing that the patient was a "kook". When Dr. Seapy

pro-

tested that he would rather lose his pride than not be careful, Dr. Straub.

tole hin "It's not a matter of pridc;.it's a matter of stupidity." It

then developed that Dr. Straube had been informed in advance that the

patient was in fact a "kook".

In the fall of 1972 a letter was addressed to the Residency

Progran. The letter was apparently delivered to Dr. Burton. Ile held the

letter for a period and then passed it on to Dr. Haugen. Dr. Haugen

failed to act on the matter prompt) y with the result that two of the

res idents were late in submitting their applications for the Board examin-

ations. Appropriatcly, the letter should have been brought to Dr. Straube

as director of the residency, immediately. Instead of treating the matter

as an internal problem, albeit scrious, plaintiff used the incident as

on opportunity to write an extrenely critical letter about Dr. Haugen to

Dr. Richard Hopkins, the president of the hospital staff. (Ex. 10a).

In December Dr. Haugen, as chicf of radiology, changed the

B-18 ao LU PAL CUS

scheduling procedures in the department. This action precinilased another

letter. Thic letter was sent coc! Stok. ween DL

al celiivery bo Sr. issocen,

whon the plaintiff associated daily at the hospital, at his heme, with

Phe letter concluded ". . . further threats and

a copy to Dr. Nopans.

intinidation against me dy you must not reoccur in the future, nor should

you continue to display an attitude of arrogance and persistent refusal

of cooperation" (=x. 10b). |

On January 36, 1973, the day the temporary suspension was issued

twelve of the radiology technicians sought an audience with iir. Larson

to air their criticisms of Dr. Straube (zx. 1, p. 25).

The foregoing incidents, while not separately significar’., cup-

port the conclusions reached by the Executive Comsittee and the Review

Connittee that Dr. Straute was a "“cisruptive inflvucnce" and

hos his

"personality traits" have contributed significantly to the current con-

flicts. Clearly there was a basis in fact for the suspension of plain-

tiff's staff privileges. ‘2? ;

OTHER ISSUES

For the reasons stated above the Court concludes that plaintiff

has utterly failed to carry the burden upon the central issues and

accordingly cefendant should have a decree in its favor. While not

essential to the resolution of the case, it is perhaps appropriate to

comment on other isgucs.

“TSIPORARY SUSPEUSION

While the pleadings do not specifically frame the issue, it:

is clear plaintiff is offended by the fact that his privileyes were tem-

pororily suspended by the president of the defendant without a hearing.

Page 12 - OFTNICH

oe ee See a

Mand Abe eg

co nm uw On WwW ee Bw HY &

—_ -—

- ©

22.

B-19

scx 1973 mce2099 -

The Review Committee specifically

wet

There may be a basis for his conplaint.

found che cuemary suspension unvarrcated. The sradlesm iss the mess: ee

partment did not suddenly appear on January iC, 1972 - it hed

for years, anu it is difficult to uncerstand why plaintiff's privileces

coulc not have been continued ninetcen more days until the Zxecutive

Committee could have considered tie matter as a complaint rather than as

an accomplished suspension which it could “continue, modify or terminate".

See Ex. 6, Staff By-Laws, act. IV. ,

As the Court concluded above, there was a basis for plaintiff's

suspension, ang the result may well have been the same. However, there

is little question but that emplcynent of the summary suspension encen-

dered heat in an already agitated situation. In the Court's vicw the

summary suspension, for all practical purposes, elininatea the possidility

of a resolution of the difficulty. The result is that, for ali tine,

Emanuel Hospital, its staff and its patients, have lost the services of

a cediccted and exceedingly talentec practioner.

On the other hand, the action taken by the president was

authorized by the by-laws. It is equally clear, in the Court's view,

that the action wos taken in cood faith and surely not without cause.

: ; DAMAGES

Plaintiff has continued to practice at Lloyd Center X-itay. is

income has not in fact suffered because he has lost the Emanuel Hospital

affiliation. Plaintiff urges that when inflationary factors are con-

sidered, he has in fact lost incowe. The vagaries of private practice,

however, make such a conclusionbased upon one year's experience, incon-

clusive and unreliable.

Page 15 = OPIWICN

Bee Bas he B-20 won 1979 net 2096

”“

i i . Se .e

‘a = e “ee *, ~ Sse

Pb o* - (* Purther, plaintiff is a rececnized expert in his field, and B-21 ex tS78 mc 194

' 2 kes cany friends and associates throughout the world who could, and » Poy

~ 3). uncubted]y wold, assist hin in making other hospital connections. 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON '

"4 . use Court cuct¢nizes that plaintiff's suspension will have some adverse . FOR THE COUNTY OF MULTNOMAH

pan : ENTERED IN JOURNAL

and. effect upon him. It is, however, coubtful that it will be as devastating 3

6 as Dr. Straube suggests. At this point plaintiff has suffered no nonctar; 4 KURT R. STRAUBE, M.D., ) a9 me

)

7 damages. That he will experience such loss in the future is illusory. ° . Plaintité, ; No. 402-22

- °. = 6

$ Suarciy it has not been cstablishe? by a preponderance of the evidence. 6 ve )

i : ) ORDER ON DEFENDANT'S MOTION

9 Mr. Jones will prepare a decree consistcnt with the forecoing. 7 EMANUEL LUTHERAN CHARITY BOARD, ). FOR SUMMARY JUDGMENT

; a corporation, dba EMANUEL )

10 I suggest this opinion should suffice as "Findings" as requested by the 8 HOSPITAL, ;

ll. plaintiff. ; ne ) 9 Defendant. )

12 Dated this b day of Hay, 1977. : 10

e , . E 11 Motion of defendant Emanuel Hospital for full and/or

14 : ' 12 partial summary judgment having come on for argument, plaintiff

1s Op rt (Ch ] 13 appearing by Richard Alexander and Preston C. Hiefield, Jr. of

16 ; ' t Y : a 14 his attorneys, and defendant appearing by Robert M. Keating of

; . ]\ CListom) 3. vnsr eae

17 : CIRCUIT JUDGE its attorneys, the Court reviewed the pleadings and memoranda

18 ve a x 16 filed herein and the affidavits, depositions, and exhibits

19 v a7 submitted in support of and in opposition to the motion, and

20 (1) The Court recocnizes that plaintiff denied that some of the : ‘ 18 the Court being fully advised in the premises: °

incidents occurred and that in respect to others there as 19

21 contrary evidence. Nevertheless, the Committees and the - IT IS HEREBY ORDERED AND ADJUDGED that Part I of the

Board cic have an evidentiary basis for their conclusions. } 3 if; 20 , , .

22 ‘seb motion for full summary judgment is denied, and Subparagraphs (2)

(2) Even the members of the Executive Committee who vere oppesed 1 21 ,

23 . to the suspension of his privileres ecreed Dr. Straube had : 4 and (3) of Paragraph II are denied. Subparagraphs (1) and (4) are

been disruptive (Dr. Wiebe's testimony and Lx. 19c). ; 22

y2 ; i allowed and,

2s : i * IT IS HEREBY ORDERED AND ADJUDGED that defendant have

26 ” partial summary judgment in its favor as to the allegations of

Page 14 - OFIWICN - Paragraph VII, Subparagraph a. and b. of plaintiff's Third Amended

? Suit, and,

Page Bs

1 - ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

; £53

= 3 mi 195 - C

B-22 wo 497 B-23 RECEIVED

- CIRCUIT COURT OF OREGON MALTNONEN COTY

IT IS FURTHER ADJUDGED that should plaintiff obtai | aa

. wig toe vate PORTLAND, OREGON 87204 GIT HAR 23 PM 2: 38

2 judgment in his favor, he is not entitled to punitive damages. “7

240-3347

3 DATED this JY day of March, 1977.

March 23, 1977

4 ; CLIFFORD B. OLSEN

i JsvuOGE

5 ° * tedbida

6 reuit Judge Mr.-Richard E. Alexander Me. John FP. Folliare, Jr.

Attorney at Law a Attorney at Law

7 Boise Cascade Building - 1 5. W. Columbia

4 Portland, Oregon 97201 Portland, Oregon 97201

: Mr..Charles E. Paulson

4 / Attorney at Law vd

Standard Plaza

16 ; Portland, Oregon 97204

11 } Re: Straube vs Exmanuel Lutheran Charity Board,

; dba Emanuel Hospital

12 ‘ No. 402-225

13 Gentlemen:

14 | This matter is before the Court on defendant's motion for

a summary jucgment and in the alternative for a partial summary

1S i judégrent. I have reviewed defexdant'’s motion and plainviff's meno-

randum in opposition thereto, anc conclude that the motion for the

16 summary jucgment should be denied. —

17 ’ ow For the reasons previously stated in my letter date¢

November 18, 1975, I do not believe Emanuel Hospital is a public

18 ; body or that its actions in respect to the plaintiff constitute

; state action. Therefore, the issues sought to be raised in Sub-

19 paragraphs (a) and (bo) of Paragraph VII, plaintiff's third amencec

' complaint, do not raise viable issues. Accordingly, Paragraph II (1)

of es alternative moticn for partial summary judement is

allowed.

i=)

The case of Pedah Conn ane v. Bunt, 265 Or. 427, unequivo-

cally expresses the present attitude of the Oregon Supreme Court in

respect to punitive camares in esuitable proceedings. Accordincly,

Tmernene 888.4008

PORTLAND. ORZOON 07280

Lad

JONES, LANG. KLEIN. WOLF @ GMITH

arreanevs

Ome GouTnweey Om vasa

23 ; plaintiff is not entitled to punitive damages in this proceedine and

‘ Saragraph <3 (4) of defenéaxnt's sotion fcr partial suzmary jucement

24 is allowed. —~

25 As this case evolved the Court has proceedei upon the

assumption that the relationship between staff physicians ani hocpi-

26 tals are contractual in nature. Staff privileres are valuatle an?

unique. <= 8s of the opinicn tisy should cnly be tertinated in foce

Page 2 - ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ee ee

Mr. Richard E. Alexander -2-

Mr. Charles E. Paulson .

Mr. John ?. Folliard, Jr.

faith upon "an adequate factual basis" established in accordance with

procedures providea in the hospital by-laws. I am unable to determine

from the record whether or not the decision to terminate Dr. Straube

was predicated upon an actual factual basis arrived in accordance with

the procedures contained in the defendant's by-laws. Accordingly,

Paragraphs I, II and III of defencant's motion for partial summary

judgment are denied. - os

Mr. Polliard will prepare an order consistent with the fore-

going for the Court's signature.

Very truly yours

Clif B. Olsen

Circuit Judge

CBO:nt

dae

ea ae ie

ats lebbanentaiadi i: Setiinbatipics tneae Ss

B-25

CIRCUIT COURT OF OREGON

POveTH suciciag O1ereicr

Muttrnouar County Couatnouse

PORTLAND, OREGON 37204

248-3247

November 18, 1975

suet FILED

CLIFFORD 8. OLSEN

| | NOV 2 0 i975

Mr. Richard : Alexander ; CIRCUIT

Attorney at law rc

Seine Gnesnde Building Multnoman — rl

Portland, Oregon 97201 “She n

Mr. Robert M. Keating

Attorney at Law

Morgan Perk Building

Portland, Oregon 97205

Re: Straube vs Larson et al.

No. 402-226

Gentlemen:

I indicated to Mr. Alexander at the Rule 4.00 hearing last

Wednesday that I am going to overrule the demurrer to plaintiff's

complaint. I don’t mean to suggest that the trial judge will be bound

by my reesoning, but I thought that the record should reflect ny

thinking in this case.

I do not believe that Emanuel Hospital is e quasi-public body

and surely Mr. Larson is not a pudlic official. The actions of the

hospital end/or Mr. Larson, therefore, do not constitute state action.

Accordingly I do not believe the constitutional issues raised by plain-

tiff's complaint are viable.

On the other hand, I do find that a staff physician has a

rotectidle interest in the enforcement of a hospital's by-laws. Pre-

bly the interest is a contract interest and protectibie as any corntraci

right. Because part of plaintiff's claim relates to the alleged failure

of the defendants to comply with the hospital br-laws, I am of the

opinion that the complaint states a cause of action and the cemurrer

should accominuly be overruled.

Ve j sing your,

Wl.

(fad 6

Cliffaxj B. Olsen

Circuit Jud:re

CBO:nt

Encls.

——oore

nscale ae

ee ee re ee ae

ee nee

C-l

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KURT R. STRAUBE, M.D.,

Plaintiff, NO. 74-307

Vv. OPINION

ROGER G. LARSON and EMANUEL

LUTHERAN CHARITY BOARD, a

corporation, dba Emanuel

Hospital,

Defendants.

Charles Paulson

605 Standard Plaza

Portland, Oregon 97204

Attorney for Plaintiff

Robert P. Jones

Robert M. Keating

McMenamin, Jones, Joseph & Lang

500 Morgan Park Building

Portland, Oregon 97205

Attorneys for Defendants

Appendix C

C-2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KURT R. STRAUBE, M.D.,

Plaintiff,

Vv.

ROGER G. LARSON, JOHN C. ENGLISH,

M.D., ROBERT SEAPY, M.D., RICHARD

K. HELM, M.D., FIRST JOHN DOE,

SECOND JOHN DOE, ETC. TO AND

INCLUDING TWENTIETH JOHN DOE,

FIRST JANE DOE, SECOND JANE DOE,

ETC. TO AND INCLUDING TWENTIETH

JANE DOE, FIRST DOE, M.D., SECOND

DOE, M.D. TO AND INCLUDING

FIFTIETH DOE, M.D.,

Defendants.

Charles Paulson

605 Standard Plaza

Portland, Oregon 97204

Attorney for Plaintiff

Robert P. Jones

Robert M. Keating

=— we ee eee ee eee ee ee ee eee es es

McMenamin, Jones, Joseph & Lang

500 Morgan Park Building

Portland, Oregon 97205

Of Attorneys for Defendants

A. Allan Franzke

J. Laurence Cable

Souther, Spaulding, Kinsey, Williamson & Schwabe

1200 Standard Plaza

Portland, Oregon 97204

Attorneys for John C. English

SKOPIL, Judge:

No. 74-308

OPINION

C-3

Plaintiff, Kurt R. Straube, M.D., asserts that he

was deprived of his Fourteenth Amendment rights by

defendants, Emanuel Lutheran Charity Hospital Board and

its president, Roger Larson.

Plaintiff, in a second Complaint, alleges that

Larson and defendant-doctors, English, Seapy, and Helm,

conspired to deprive him of equal protection under the

law.

The defendants move to dismiss for lack of subject

Matter jurisdiction and failure to state a claim upon

which relief may be granted. (Fed. R. Civ. P. 12(b) (1)

and (b) (6).

Plaintiff, a radiologist, was a meber of the staff

of init Hospital. On February 22, 1973, Larson, the

hospital president, temporarily suspended plaintiff's

staff privileges. In January of 1974 Emanuel's execu-

tive board permanently suspended plaintiff from the

staff. Plaintiff avers that his suspensions were

neither preceded by a hearing nor justified. He

contends that Larson and defendant-doctors conspired to

effect his dismissal and destroy his professional

reputation.

C=-4

This is a civil rights action authorized under 42

U.S.C. $1983 and §1985. Jurisdiction is invoked pur-

Suant to 28 U.S.C. 81343.

Plaintiff's initial hurdle is jurisdiction. He

must show state involvement in the hospital's sus-

pension of his staff privileges before federal law will

apply. He contends that several factors establish

"state action" by the defendants:

(1) Emanuel Hospital is impressed with a public

responsibility.

(2) Emanuel receives substantial state and federal

benefits, including funds under the Hill-Burton

Act, 42 U.S.C. 8200 et seq.

(3) Emanuel is permitted to issue tax-exempt bonds.

He also asserts that Emanuel had a co-operation agree-

ment with the City of Portland in Urban Renewal projects.

Emanuel is a private, non-profit hospital organized

for charitable purposes. It is "only by sisting thete

and weighing circumstances that the non-obvious involve~

ment of the State can be attributed its true signi-

_ficance". Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961).

——

TE ee ee ee OES

C=-5

There is a split of authority as to whether the

above factors clothe private hospitals with the req-

uisite "state action". The cases cited by plaintiff

fail to associate the claimed state involvement with

the challenged activity. They. fail to apply the nexus

requirement set out by the Supreme Court in Moose

Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), the

controlling decision in the area of private versus

state action.

Moose Lodge involved an action by a guest of a

member of a private club who was refused service be-

cause of his race. He contended that the grant of a

liquor license by the state liquor authority implicated

the state in actions by the club. The Court concluded

that the regulatory scheme did not foster or encourage

the club's racially discriminatory practices.

The Court limited the doctrine of state action by

requiring a connection between the injury and the

governmental presence.

"The Court has never held, of course, that dis-

crimination by an otherwise private entity would

be violative of the Equal Protection Clause if the

private entity receives any sort of benefit or

service at all from the State, or if it is subject

C-6

"to State regulation in any degree whatsoever.

Since State-furnished services include such

necessities of life as electricity, water and

police and fire protection, such a holding would

utterly emasculate the distinction between private

as distinguished from State conduct set forth in

the Civil Rights Cases, supra, and adhered to in

subsequent decisions." Moose Lodge, 407 U.S. at

173.

Barret v. United States, F. Supp. ’

S.D. N.Y. Docket No. 73 Civ. 1716 (1974), presents a

thorough analysis of all the major cases cited by both

Sides. Barret involved facts similar to those alleged

in plaintiff's Complaints. The Court applied the

Moose Lodge requirement of a connection between govern-

Mental activity and a civil rights injury.

The Court also noted that the cases which sub-

jected private institutions to the limitations of

61983 generally involved either racial discrimination

or activities which are traditionally the exclusive

province of state or municipal governments. Barret

rejected the notion that private hospitals carry on

traditional government functions,

As noted in Moose Lodge, the Civil Rights Act is

hot intended to provide a general federal tort claims

remedy. Plaintiff could conceivably find some degree

of state involvement in virtually every major private

C-7

institution existing today. Plaintiff's Complaints

fail to allege the necessary nexus between governmental

involvement with Emanuel Hospital and his suspension

from staff privileges. Ward v. St. Anthony Hospital,

476 F.2d 671 (lOth Cir. 1973).

Plaintiff's second Complaint alleges a conspiracy

in violation of 42 U.S.C. 51985. The Supreme Court in

Griffin v. Breckinridge, 403 U.S. 88 (1971), held that

before a cause of action exists under 81985 "there must

be some racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspira-

tors' actions". Griffin at 102. Plaintiff has not

alleged any class-based discrimination. His Complaint

fails to satisfy the requirements of the statute.

Jackson v. Norton Children's Hospital, 487 F.2d 502

(6th Cir. 1973); O'Neill v. Grayson County War Memorial

Hospital, 472 F.2d 1140 (6th Gar. 1973).

Defendants' motions to dismiss are granted. A

final order will be entered dismissing plaintiff's

Complaints.

Dated this 7th day of October, 1974.

{sf Otto R. Skopil, Jr.

United States District Judge

C-8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KURT R. STRAUBE, M.D.,

Plaintiff, CIVIL 74-307

Vv.

ROGER G. LARSON and EMANUEL

LUTHERAN CHARITY BOARD, a

corporation, dba Emanuel

Hospital,

JUDGMENT

RR ee

Defendants.

KURT R. STRAUBE, M.D.,

Plaintiff, CIVIL 74-308

Vv.

ROGER G. LARSON, JOHN C.

ENGLISH, et al.,

JUDGMENT

eee ee ee ee eee

Defendants.

Based upon the Opinion of the Court entered

contemporaneously herewith,

IT IS ORDERED and ADJUDGED that defendants'

motions to dismiss are granted, that plaintiff shall

take nothing, and the cases are dismissed on the merits.

DATED this 8th day of October, 1974.

/s/ Robert M. Christ

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT M. CHRIST, CLERK OF COURT

Kent R. Straube, M.D.,

Appellant, | : ,

[ No. 74-3496

( = No. 74-3497

V3.

Roser G. Larson, et al.,

Appellees. MEMORANDUM

[Mareh 15, 1976]

Appeal from the United States District Court

for the District of Oregon

Before: ELY and TRASK, Circuit Judges, and

CHRISTENSEN, District Judec.?

S'ranbe, a radiologist. was suspended from the staff of Emanuel

Hospital, allegedly without a hearing or justification, The Dis-

trie Court dismissed his etvil rights elsims, brought under 42

US.C. § 1983, for lack of “state action”. We affirm,

Emanuel tlospital is a private charitable institution receiving

public funds and certain tax wlvantages. These faets alone are

insufficient to establish the required state action, See Taylor v,

St. Vincent's Hospital, 523 B22 75 Oth Cir. 905); Wathins

Vv. Mare y Medical Ce aler, 520 ved ate (Oth Civ. 1975).

Straube contends that the hespital’s connection with an urban

renewal project of the City of Porthind establishes the necessary

state nexus. We disagree, ‘The kev to a determination of state

action 13 that the state must be significantly involved ino the

specifie activity of which complaint is made, Watkins, supra;

—— -

*Heweeable A. Sherman Christensen, Senior United States District

Judge, Salt Lake City, Utah, sittie: by designation.

Appendix D

D-2

2 Kurt ht. Straube, M.D. vs. Royer G. Larson, et al.

Ascherman v. Presbytcrian Ioasp. of Dac. Med. Co., Inc., 507

F.2d 1103 (9th Cir. 1974); Chrisman uv. Sisters of St. Joseph of

Peace, 506 F.2d 308 (9th Cir. 1974). Here there is ne such

allegation. That the hospital and the City are parties to an

urban renewal project is an example of a state contact, but

nothing indicates that Portland is involved in the hespital’s

decisions in respect to the hospital's personnel.

AFFIRMED.

TERNAL WALSH PRINTING CO. SAN FRANCISCO 3-23-76--400

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.