Opposition — Straube v. Emanuel Lutheran Charity Board

IN THE MAR 17 1980

SUPREME COURT OF THE UNITED STATES |

L_EICHAEL RODAK, W., CLERM

————-,_

no.%9 -1430

KURT R. STRAUBE, M.D.,

Petitioner,

V.

EMANUEL LUTHERAN CHARITY BOARD,

a corporation, dba EMANUEL HOSPITAL,

Respondent.

RESPONSE TO THE 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

Attorneys for Plaintiff-Petitioner

William L. Hallmark

Margaret H. Leek Leiberan

LANG, KLEIN, WOLF, SMITH,

GRIFFITH & HALLMARK

One Southwest Columbia

800 Benjamin Franklin Plaza

Portland, Oregon 97258

Telephone: (503) 222-4422

Attorneys for Defendant-Respondent

TABLE OF CONTENTS

Statement of the Case . “Se Wer ee ee a ee

Argument J se oe ee @ * @ ° oO se oe @ oe oe a

1. The Supreme Court has twice:

declined review of the issue pre-

WONTES Eh CNIS COO. «6 vk we Ss

2. A private non-profit hospital

is not subject to the due process

requirements of the Fourteenth

Amendment to the United States

Constitution. SM hs ee ae ae |

3. Even if a private hospital is

required to meet due process stan-

dards, such standards were met in

ee es 8 rae oS oe Ee ee

Ween > 6 ca a ee i ee a Me oe

Append ix e e s e o e @o e o oe o e o o :

Response to Petition for A Writ of

Certiorari to the United States Court

of Appeals for the Ninth Circuit

Straube v. Larson, et al, No. 75-1795

Page

ii

INDEX OF AUTHORITIES

Cases Cited

Briscoe v. Bock, 540 F2d 392

(8th Cir 1976) ° . ° e ° e e o . °

Doyle v. Unicare Health Serv. Inc.

Aurora Center, 399 F Supp 69

(ND Tll 1975) @ e eo eo e e e e ° °

Greco v. Orange Memorial Hospital

Corporation, 423 US 100, 96 S Ct

433, 46 L Ed 2d 376 (1975) « « « «

Johnson v. Southwest Detroit

Community Mental, Etc., 462

F Supp 166 (ED Mich 1978). . +. «s+ -»

Large v. Reynolds, 414 F Supp 45

(WD Va 1976) e o o oe e oe s e e ° e

Mulvihill v. Julia L. Butterfield

Memorial Hospital, 329 F Supp

1020 (SD NY 1971) ° e o e ° ° e e

Poe v. Charlotte Memorial Hospital,

Inc., 374 F Supp 1302 (WD NC 1974)

Schlein v. Milford Hospital, 571

F2q 427 (2nd Cir 1977) « « « « « »

Straube v. Larson, et al, 74-3496,

74-3497 (9th Cir 1976), petition

for certiorari denied, 429 US 830,

97 S Ct 91, 50 L Ed 94 (1976) .-

iii

Other

Page

U.S. Constitution, Amendment XIV

2, 8

1, 2, 8

Respondent Emanuel Lutheran Charity Board

(Emanuel) respectfully urges the court to deny

petitioner's request for writ of certiorari in

this proceeding.

STATEMENT OF THE CASE

Petitioner's statement of the case

accurately reflects the allegations of his

complaint upon which the opinions below were

based and the procedural history of this

litigation.

ARGUMENT

1. The Supreme Court has twice declined

review of the issue presented in this case.

Two Petitions for Certiorari dealing with

the issue presented in this case have previ-

ously been denied by the Supreme Court. One

of these, Straube v. Larson, et al, 74-3496,

74-3497, (9th Cir 1976), petition for certi-

Orari denied, 429 US 830, 97 S Ct 91, 50 L

Ed 94, 1976, was based on the same facts as

this case. The other, which petitioner

himself admitted dealt with the same issue as

the present case, was Greco. v. Orange Memorial

Hospital Corporation, 423 US 1000, 96 S Ct

433, 46 L Ed 2d 376 (1975). (Petition at 18)

No significant developments have occurred

since the court denied these petitions.

2. A private non-profit hospital is not

subject to the due process requirements of the

Fourteenth Amendment to the United States

Constitution.

The issue of whether a private non-profit

hospital is subject to due process requirements

has already been fully briefed in the petition

for writ of certiorari and the response to

petition filed in the federal court case

based on the same facts as this case. Straube

v. Larson, et al, 74-3496, 74-3497, (9th Cir

. 1976), petition for certiorari denied, 429

US 830, 97 S Ct 91, 50 L Ed 94, 1976. Respon-

dent will rely primarily on the arguments made

in response to the petition in that case which

is attached as Appendix "A". See, also, the

Opinion of the District Court in that case

attached to petition as Appendix "C".

An analysis of all cases cited in the

earlier Petition for Certiorari revealed that

only the Fourth Circuit was consistently hold-

ing that the acts of private hospitals are

state actions requiring due process standards.

In the other circuits a clear majority was

emerging holding that private hospitals were

mot required to meet such standards. (Ap-

pendix A) The cases cited by petitioner in

the current petition which are not included

in the earlier petition reveal that the

circuits have continued to resolve the issue

against the peitioner. All the new cases

cited by petitioner in support of their argu-

ment are federal district court cases. Two

out of three of these cases, Large v. Reynolds,

414 F Supp 45 (WD Va 1976) and Poe v. Charlotte

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

NC 1974) are cases in the Fourth Circuit.

Petitioner lists several new cases in

which the courts have held that private hospi-

tal acts do not amount to state actions. Two

of these cases, Briscoe v. Bock, 540 F2d 392

(8th Cir 1976) and Schlein v. Milford Hospital,

561 F2d 427 (2nd Cir 1977) are Court of Appeals

cases. Three district court cases holding

that private hospitals are not subject to due

process requirements are also listed by the

petitioner. Johnson v. Southwest Detroit

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

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

Aurora Center, 399 F Supp 69 (ND Ill 1975);

Mulvihill v. Julia L. Butterfield Memorial

Hospital, 329 F Supp 1020 (SD NY 1971). Thus,

an analysis of the cases cited in the petition

itself show that since the court denied

———o

certiorari in the former petition the circuits

have continued to resolve this issue against

finding private hospitals responsible for due

process requirements. The previous split

among the circuits on the issue appears to be

resolving itself and there is no compelling

need for this court to consider the question.

3. Even if a private hospital is

required to meet due process standards, such

Standards were met in this case.

Since the Supreme Court of Oregon in

this case decided that due process standards

were not required, it did not reach the issue

of whether the hospital procedures conformed

to such standards. However, the court did

deal with the issue of whether “common law

due process" had been met by the hospital's

procedures. The court answers each of plain-

tiff's contentions about lack of due process

as follows:

"Plaintiff contends he was not

permitted to show bias and pre-

judice of witnesses. In fact he

was allowed the usual means, which

is cross-examination. He contends

he was not given a concise state-

ment of the charges against him.

He was given information of specific

circumstances that occurred in con-

nection 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 evidence that

persons whom plaintiff requested to

appear asked representatives of the

defendant whether they had to appear

and were told, truthfully, they did

not have to; but there is no evidence

that defendant discouraged or dis-

Suaded anyone who was so inclined

from appearing and testifying. In

fact, some persons did appear and

testify in plaintiff's behalf.

"Plaintiff complains that the com-

mittees before which the hearings

were held were not impartial and

that they considered information

Outside of the record. * * * How-

ever, we agree with the trial judge

that plaintiff did not carry the

burden of proving that the members

pre-judged the charges against him

or that the proceeding was basically

unfair.

"Plaintiff charges that the bylaws

and regulations of summary suspen-

sion were vague and overbroad and

were not followed. * * * 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. * * *"

"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 pro-

vide for any such hearing nor was

he given one. Assuming that plain-

tiff is entitled to 'fair procedure'

under a common law theory, we cannot

Say that he is entitled to a pre-sus-

pension hearing when the best

interest of the patients may indi-

cate to the contrary." (Petition

A-7 to A-9).

Thus, the Oregon Supreme Court essen-

tially held that if plaintiff had any proce-

dural rights they were adequately met by the

hearings he was afforded by the hospital.

CONCLUSION

The Supreme Court has twice denied

certiorari in cases involving the identical

issue presented by the present case. Greco

Vv. Orange Memorial Hospital Corporation, 423

US 1000, 96 S Ct 433, 46 L Ed 2nd 376 (1975).

Straube v. Larson, et al, 74-3496, 74-3497,

(9th Cir 1976), petition for certiorari

denied, 429 US 830, 97 S Ct 91, 50 L Ed 94,

1976. One of the cases in which the court

denied certiorari was based on the same fact

Situation as that presented by the instant

case. The law cited by the petitioners

establishes that all circuits except the

Fourth Circuit have continued to hold that

a private hospital is not responsible for

meeting due process standards.

In addition, the conclusion of the

' Oregon Supreme Court that procedural

requirements were met in this case, illus-

trates that even if the hospitals were

required to meet due process Standards, such

Standards were met under the facts of the

case. No compelling need exists for the

court to consider the question presented in

this case.

Respectfully submitted,

LANG, KLEIN, WOLF, SMITH,

GRIFFITH & HALLMARK

William L. Hallmark

APPENDIX A

Response to Petition for Certiorari filed in

answer to previous petition on same facts in

Kurt R. Straube, M.D. v. Roger G. Larson and

Emanuel Lutheran Charity Board, a corporation,

dba Emanuel Hospital, No. 75-1795.

eT ae ee ee ee ee am

IN. THE

SUPREME Cova: OF THE UNITED STATES

KURT R. STRAUBE, M.D.,

Petitioner,

V.

ROGER G. LARSON and EMANUEL LUTHERAN

CHARITY BOARD, a corporation, dba

Emanuel Hospital,

Respondents.

KURT R. STRAUBE, M.D.,

Petitioner,

v.

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.,

Respondents.

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

See Inside Cover for Counsel

Appendix A

July 1, 1976

Robert P. Jones

JONES, LANG, KLEIN,

WOLF §& SMITH

Attorneys at Law

One S.W. Columbia

Portland, Oregon 97258

‘Counsel for Respondents

Roger G. Larson, Emanuel

Lutheran Charity Board,

dba Emanuel Hospital,

Robert Seapy, M.D., and

Richard K. Helm, M.D.

INDEX

OPINIONS BELOW

JURISDICTION

QUESTION PRESENTED

STATUTE INVOLVED

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

CONCLUSION

Ui

—I

—_

AUTHORITIES Cite:

CASES

Ascnerman v. Presbyterian Hospital,

2U/ F.éd 1105 (9th Cir., 19/4)

Barrett v. United Hospital, 3

F.Supp 791 (S.D.N.Y., 1974)

506 F.2d 1395 (2nd Cir., 19

Doe v. Bellin Memorial Hospital,

S79 £.46 730 C/tHh Cir.,. L975)

Don v. Okmulgee Memorial Hospital,

4q3 F.2d ae Ceeee Gates SETA)

Greco v. Oran ange Memorial Hospital

Corp., 315 Se wie (een Gare),

cert. denied, 44 U.S.L.W. 3328

(December 2, 1975)

Jackson v. Norton Children's Hospitals,

Inc., 487 F.2d 502 (6th cir., 1073)

Klinge v. Lutheran Charities Ass'n.,

= F.2d 56 (8th Cir., 1075)

Moose Lodge No. 107 v. Irvis, 407

168 C1972)

Ward v. St. Anthony Hospital, 476

F.2d 671 (10th Cars. 1573)

STATUTES AND CONSTITUTION

42 U.S.C. § 1983

ut

A-5

IN THE

|

SUPREME COURT OF THE UNITED STATES |

October Term, 1976

No.

KURT R. STRAUBE, M.D.,

Petitioner,

Ve

ROGER G. LARSON and EMANUEL LUTHERAN

CHARITY BOARD, a corporation, dba

Emanuel Hospital,

Respondents.

KURT R. STRAUBE, M.D.,

Petitioner,

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

Figtigin JOE, M.D.,

Respondencs.

RESPONSe TO PETITION FOR A WRit OF

esR.iORARI TO THES “UNITED STATES COURT

oF APZSALS FOR THE NINTH coRCCt.

Respondents Roger G. Larson, Emanuée?

Lutheran Charity Board, Robert Seapy, M.D., and

Richard Kk. Helm, M.D., respectfully urge the

Court to deny Petitioner's request for a Writ of

Certiorari in this proceeding.

OPINIONS BELOW |

The opinion of the Court of Appeals is

not reported but is attached to the Petition as

Exhibit A. The opinion of the District Court

is not reported but is attached to the Petition

as Exhibit B.

JURISDICTION

Respondent does not question the juris-

diction as set forth in the Petition.

QUESTION PRESENTED

Whether the existence of governmental

contacts with a private institution renders

conduct of that institution which is unrelated

to the governmental contacts state action sub-

ject. to Constitutional regulation.

STATUTE INVOLVED

42 U.S.C. § 1983 is set forth in the

Petition.

STATEMENT OF THE CASE

Petitioner's statement of the case

accurately reflects the allegations of his Com-

plaint upon which the opinions below were based

and the procedural history of this litigation.

REASONS FOR DENYING THE WRIT

The question presented in this case

was resolved by this Court in Moose Lodge No.

107 v. Irvis, 407 U.S. 163 (1972), which stated

that where governmental contacts with a private

institution were not so pervasive as to make

that institution lose its essentially private

Character, there must de a nexus between the

governmental contacts alleged and the conduct

complained of before that conduct can fairly

be characterized as state action. Moose Lodge

involved an action by a guest of a member or a

private club who was refused service because or

his race. Plaintics relied on the liquor ilic-

ciscrimination was not state actior, even thoxush.

the clus was subject to extensive government

regulation by virtue of its liquor license.

"However detailed this type of regulation may be

in some particulars, it cannot be said to in any

way foster or encourage racial discrimination.

Nor can it be said to make the state in any

realistic sense a partner or even a joint

venturer in the club's enterprise." 407 U.S.

at 176 - 177.

Numerous attempts have been made to

label any action of a purely private hospital

state action by virtue of the fact that the

hospital receives Federal funds under the

Hill-Burton Act and has other incidental govern-

mental contact. The United States Courts of

Appeals for the Second, Fifth, Seventh, Ninth

and Tenth Circuits have each heid that the

actions of a private, non-profit hospital do

not. constitute state action merely by reason

of the hospital's receipt of Hill-Burton funds,

tax advantages or other incidental governmental

oS-

contacts absent some connection between the

governmental contacts and the action complained

of. Barrett v. United Hospital, 376 F.Supp 791

(S.D.N.Y., 1974), aff'd, S06 F.2d 1395 (2nd Cir.,

1975), Greco v. Orange Memorial Hospital Corp.,

513 F.2d 8735 (Sth Cir.), cert. denied, 44

U.S.L.W. 3328 (December 2, 1975), Doe v. Bellin

Memorial Hospital, 479 F.2d 756 (7th Cir.,

1973), Ascherman v. Presbyterian Hospital,

507 F.2d 1103 (9th Cir., 1974), Ward v. St.

Anthony Hospital, 476 F.2d 671 (10th Cir.

1973).

| The Eighth Circuit in Klinge v.

Lutheran Charities Association, 5235 F.2d 56 (8th

Cir., 1975), did not decide this question since

the Defendant Hospital conceded Plaintiff's

position and the Court never had to address it.

The Sixth Circuit's early decisicns

did ignore the nexus requirement, but, sudseauent

uw

ion in Moose Lodge, tnat

ee

conduct of a private hospital state action.

Jackson vy. Norton Children's Hospitals, Inc.,

wer Cuae SUc (GRR GCit., 1973).

Plaintiff, in his Petition, asserts

that there is a split within the Tenth Circuit

because of the early decision of Don v. Okmulgee

Memorial Hospital, 445 F.2d 234 (10th Cir., 1971).

In tnat case, the hospital did not challenge

Plaintiff physician's assertion that its conduct

amounted to state action. In Ward v. St. Anthony

Hospital, supra, the Court restated its long-

standing rule that "the claimed involvement

mist be associated with the challenged activity"

and held that since there existed no nexus be-

tween the governmental contacts alleged and

the medical staff decisions of St. Anthony

Hospital, such decisions were not state action.

476 F.2d at 675.

Thus, only the Fourth Circuit has

consistently ruled that receipt of Hill-Burton

funds alone transforms the conduct of a private

hospital into that of a state agency.

CONCLUSION

A clear majority is emerging among the

Circuits applying the nexus requirement outlined

by this Court in the Moose Lodge decision with

regard to the conduct of private hospitals re-

ceiving government funds. The split among the

Circuits appears to be resolving itself and

there is no compelling need for this Court to

consider the question.

Respectfully submitted,

JONES, LANG, KLEIN,

WOLF § SMITH

By:

Robert P. Jones

Of Attorneys for

Respondents Roger G.

Larson, Emanuel Lutheran

Charity Board, Robert

Seapy, M.D., and

Richard K. Helm, M.D.

I hereby certify that I served the fore-

going Response to the Petition for a Writ of

Certiorari to the United States Supreme Court

on the following:

Preston C. Hiefield, Jr.

Williams, Stark, Hiefield,

Norville & Griffin, P.C.

775 Boise Cascade Building

Portland, Oregon 97201

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

attorneys for Plaintiff-Petitioner on the

day of March, 1980, by mailing to them a true

and correct copy thereof, certified by me as

such. I further certify that said copies were

placed in sealed envelopes, addressed to said

attorneys at their regular office address, or

their address as last given by them on a docu-

ment which they have filed in the above-entitled

cause and served on me; said sealed envelopes

were then deposited in the United States post

office at Portland, Oregon, on the day last

above mentioned, with the postage thereon fully

paid.

William L. Hallmark