# Petition — Straube v. Emanuel Lutheran Charity Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1842%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 966 ## Text : ~ nae~e pm, oreme Court Lh FILED FEB 15 1980 : + a £ > 4 . 3: a . 3 fi We 2 ~ i *; 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 10 27 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 © 13 ll 24 11 18 10 11 19 - 19 . £a oe wk ii 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» 20 24 24 13 11 27 12 16 22 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 1. 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)? 2. 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 ~ (c) the hospital bylaw under which 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 a 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 a 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." ‘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, v. 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 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 ; = 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 26 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 Ve 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 i OV 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 26 Pape 2 = ORDER OR DEFERDANT'S MOTION FOR SUMMARY JUDGMENT te 25 26 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 vs 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 7 @ ro 2 c c 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 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 26 B= yg 1979 ce 2032 Jeanne coordinator, special procedures Shananier, assistant Geprrtreat, reported that or. Otraude Left a patient on the x-ray table 3 for an hour white he closetcd himseil with another doctor. After many” ¢ vt -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 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» 2s 26 Page 1) = OPIITON Ay 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 ee 26 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 ct 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 & —_ -— - © 21 22. 2s 26 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 4 ; £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 8 : Mr..Charles E. Paulson 4 / Attorney at Law vd Standard Plaza 16 ; Portland, Oregon 97204 j 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. ws 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 wD ss PORTLAND. ORZOON 07280 Nn 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 | U 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. ad (fad 6 Cliffaxj B. Olsen Circuit Jud:re CBO:nt Encls. ——oore ee 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. el 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 ee 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 | | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1842%3A1. Public record. Not legal advice.