Petition for Writ of Certiorari — Mahmoodian v. United Hospital Center, Inc.

| { me jury, ws

1- 138 a’ .ED

JUL 18 1991

| eriee OFTHE CLERM

IN THE

SUPREME COURT OF THE UNITED STATES

October, 1991, Term

SAEED MAHMOODIAN, M.D., Petitioner,

vs.

UNITED HOSPITAL CENTER, INC. AND

BRUCE C. CARTER, Respondents.

PETITION YOR WRIT OF CERTIORARI

To The Supreme Court of Appeals

of West Virginia

PETITION FOR WRIT OF CERTIORARI

Jerald E. Jones, Esq.

WEST & JONES

260 Washington Avenue

P. O. Box 2348

Clarksburg, West Virginia 26302

(304) 624-5501

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

A. Whether a hospital in deciding to

terminate or restrict the staff privileges

of one of its physicians must comply with

the procedural and substantive due process

rights guaranteed by the Fourteenth

Amendment of the United States

Constitution.

B. Whether failure of a hospital to

provide a sufficiently definite standard

for proscribed conduct which may be the

basis for revocation of staff privileges of

one of its physicians constitutes a denial

of due process.

Ci. Whether Tailure to grant a

physician whose staff privileges may be

revoked the right to cross-examine his

accusers and witnesses against him

constitutes a denial of due process.

i

TABLE OF CONTENTS

Page

IE Es cs cw eececsseccececece 1

Ee eee eee e es eecceecceccccscce 1

Constitutional Provisions Invelved ....... 2

OD ccc ec cccccccccece 2

measons for Granting Writ ......cccccccces 13

United Hospital Center, Inc. is a State

Actor, and in Actions to Terminate or

Restrict Staff Privileges of One of Its

Physicians it Must Afford the Physician

the Constitutional Safeguards of the

Due Process Clause of the Fourteenth

Amendment.

EE OE 30

Appendix:

A. Opinion of the Supreme Court

of Appeals of West Virginia

See A BO, BOBL cacccccccce A-1

B. Order of the Circuit Court of

Harrison County, West Virginia,

entered November 30, 1989 ...... B-1

ii

TABLE OF AUTHORITIES

Cases

Anton v. San Antonio Community Hospital,

19 Cal.3d 802, 567 P.2d 1162,

140 Cal. Rptr. 442 (1977) errererrrryT |

Blende v. Maricopa County Medical Society,

96 Ariz. 240, 393 P.2d 926 (1964) ...18

Bricker v. Sceva Speare Memorial Hospital,

111 N.H. 276, 281 A.2d 589 (1971) ...15

Davidson v. Youngstown Hospital Assn.,

19 Ohio App.2d 246, 250 N.E.2d 892

(1969) $0066 665666 6660686665 46668 6600080

Greisman v. Newcomb Hospital, 40 N.J. 389,

192 A.2d 817 (1963) .....15, 16, 17, 18

Kelly v. St. Vincent Hospital, 102 N.M.

201, 692 P.2d 1350 (App. 1984) ......16

Milford v. People’s Community Hospital

Authority, 155 N.W.2d 835

Gees BE Setuabuenusessésenéceves 26

Miller v. National Medical Hospital

of Monterey Park, Inc., 124 Cal.

App.3d 81, 177 Cal. Rptr. 119

(S9GR) cscsvesivecs Coeeeescseceesececeos 15

Pinsker v. Pacific Coast Society of

Orthodontists, 12 Cal.3d 541,

116 Cal. Rptr. 245, 526 P.2da 253

Poy.) ee coeeeccccoe eececccoccces 18

Poe v. Charlotte Memorial Hospital, Inc.,

374 F.Supp. 1302 (W.D. N.C. 1974) ...25

|

iii

Reiswig v. St. Joseph’s Hospital and

Medical Center, 130 Ariz. 164,

634 P20 976 (1981) wccccccccece

Silver v. Castle Memorial Hosp.,

53 Haw. 475, 497 P.2d 564,

cert. denied, 409 U.S; 1048

biog | Be ee

Sywak v. O’Conner Hospital,

199 Cal. App.3d 423,

244 Cal. Rptr. 753 (1988) ......

Woodard v. Porter Hospital,

sao Ve. 419, 217 A.24 37 (1966)

aja

OPINIONS BELOW

The opinion of the Supreme Court of

Appeals of West Virginia is not yet

reported in the Southeastern Reporter. A

copy is attached as Appendix A of Appendix.

The opinion of the Circuit Court of

Harrison County, West Virginia, is

unpublished. A copy is attached as

Appendix B of Appendix.

JURISDICTION

This petition for writ of certiorari is

taken from a decision rendered on April 25,

1991, by the Supreme Court of Appeals of

West Virginia, a court of last resort, in

the case styled Saeed Mahmoodian, M.D. v.

; :

Carter, Case No. 19504 (W. Va. April 25,

1991). This court has jurisdiction

pursuant to the provisions of 28 U.S.C.S.

§1257(3) (Law. Co-op. 1977).

o2e

CONSTITUTIONAL PROVISIONS INVOLVED

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 property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws. U.S. CONST. Amend.

XIV, §1.

STATEMENT OF THE CASE

Saeed Mahmoodian, M.D. (Mahmoodian) is

one of only three board certified

physicians specializing in obstetrics and

gynecology at United Hospital Center, Inc.

(UHC), Clarksburg, West Virginia.

Manmoodian has been in private practice

in his specialty in Harrison County for

over twenty years. He is a prolific author

of medical articles, has lectured abroad,

and holds a patent on a medical instrument

invented by hin.

:

=3o

UHC is the only public hospital located

in Harrison County, West Virginia,

(population approximately 70,000), and is

the only medical facility available within

a 25-mile radius for treatment of female

patients requiring obstetrical and

gynecological services.

Since the filing of the complaint

against Mahmoodian in February, 1988, he

has continued to work and treat patients at

UHC, without complaint.

On February ke 1988, Mahmoodian

received a letter from the President of the

UHC medical staff, stating that an

Investigative Committee of the UHC medical

staff was investigating his care and

treatment of his patient by the name of

Geneva Boram and was further investigating

unnamed and undesignated allegations and

that the committee further would

investigate whether Mahmoodian had

ee

instigated law suits against UHC and

physicians on its medical staff.

Mahmoodian appeared before the

Investigative Committee, as requested; even

though the notice did not properly advise

him of the matters or misconduct to be

addressed.

At the meeting with the Investigative

Committee, Mahmoodian was confronted with

and questioned about a medical malpractice

suit pending in the Circuit Court of

Harrison County, West Virginia, in which

one of his patients had sued UHC and others

and in which UHC had joined Mahmoodian as a

third-party defendant. At the

Investigative Committee meeting, counsel

for UHC in the medical negligence suit was

present and acted as counsel for the

Investigative Committee. The Investigative

Committee recommended that Mahmoodian’s

staff privileges at UHC be terminated.

SEER ANN AIRE ERENT 1) HRTE EE TN IME EA 2S RES ITS ENS PO eRe 7

~~

An Ad Hoc Hearing Committee was

established by UHC to consider the

recommendation of 7 the Investigative

Committee to terminate Mahmoodian’s staff

privileges.

At the hearing conducted by the Ad Hoc

Committee, the evidence presented by UHC,

over Mahmoodian’s objection, consisted of

members of the Investigative Committee who

testified as to what other persons had

told them and expressed their opinions as

to the credibility of the witnesses who

they interviewed.

Mahmoodian was denied the right to

confront and cross-examine the actual

witnesses who the Investigative Committee

interviewed during the course of its

investigation, contrary to the bylaws of

UHC and contrary to the accepted and

recognized due process rights under the

laws of the United States and the State of

West Virginia.

The Ad Hoc Hearing Committee

recommended that the report of the

Investigative Committee be upheld and that

Mahmoodian’s staff privileges at UHC be

terminated. This decision was upheld by

the UHC governing bodies, effective January

31, 1989. | _

The essential grounds cited by UHC for

termination of Mahmoodian’s staff

privileges are personality conflicts with

others and the fear of other physicians and

nurses that he incites patients to file

medical negligence actions. There are no

treatment.

Mahmoodian, after having exhausted his

administrative remedies, filed suit in the

OLN, LET AON eee oe, Pita Pe

PIF FS a SSE |

atten

Circuit Court of Harrison County alleging

(1) that the UHC bylaws do not provide

adequate due process for terminating

physicians’ staff privileges; (2) misuse of

the disciplinary proceeding by UHC to

intimidate and harass Mahmoodian and to

prevent him from testifying in medical

negligence cases; (3) misuse of the

hospital disciplinary proceedings to thwart

competition by other obstetricians/

gynecologists; and (4) a desire on the part

of the hospital administrator to replace

foreign medical graduates with American

doctors.

A hearing was held before the Circuit

Court upon Mahmoodian’s prayer for a

preliminary injunction to retain staff

privileges during the pendency of the civil

action. At this hearing Mahmoodian

produced evidence from private patients and

the County Health Department’s free family

_

planning and pre-natal clinic demonstrating

a substantial hardship upon them to change

physicians and/or hospitals and that the

free clinic would have to close down that

service if Mahmoodian’s staff privileges at

UHC are terminated.

UHC admitted that Mahmoodian’s staff

privileges were not terminated because of

his clinical skills as a physician or that

they had any evidence of specific harm to

any patient at UHC because of Mahmoodian’s

so called disruptive conduct. The position

of the hospital was essentially that UHC is

a "private hospital" as opposed to a

"public hospital"; that Mahmoodian has no

recourse in the courts because courts

cannot look behind the hospital bylaws to

determine if due process was provided; that

the hospital has a right to terminate a

physician’s staff privileges on the basis

of personality conflicts if the physician’s

alin

behavior "may" create a potential for

patient harm (emphasis mine); and that

Mahmoodian, in this case, has been provided

with a fair due process hearing.

The Circuit Court, in its initial order

denying a preliminary injunction, held

that:

(a) UHC is the only hospital in

Harrison County available for the

hospitalization and treatment of

obstetrical and gynecological

patients.

(b) The termination of

Mahmoodian’s staff privileges at

UHC substantially affects and

curtails his ability to practice

obstetrics and gynecology as

hospital privileges are of

paramount importance in that

medical specialty and his

inability to use UHC facilities

will have a significant impact

upon his practice and his income.

(c) Mahmoodian is the only

physician in Harrison County

presently attending indigent

female patients at the Harrison

County Health Department Pre-Natal

Clinic and Family Planning Clinic

which consists of thirty to forty

pregnant females who will need

hospital facilities for child

-10-

birth.

(da) Certain of the obstetrical

and gynecological patients of

Mahmoodian present special risks

in regard to their delivery and

health generally.

(e) Mahmoodian has continued to

practice at UHC during the course

of the disciplinary proceeding.

(f) UHC is a private, non-profit

hospital, not operated by any

governmental agency.

(g) The actions of a private

entity can become state action for

the purpose of the constitutional

restrictions only if there is a

sufficient nexus between the

challenged act and the government.

(h) The only procedural

protection to which Mahmoodian was

entitled were those found in the

bylaws of UHC.

(i) UHC, as a private hospital,

is only required to comply with

its own bylaws and the due process

provisions contained therein in

terminating staff privileges.

(3) The court may not substitute

its judgment for that of the

medical staff and the Board of

Directors, except where such

decision was arbitrary and

Capricious.

d

d

-11-

Mahmoodian then petitioned the Supreme

Court of Appeals of West Virginia for a

preliminary injunction, which was granted

on April 18, 1989.

UHC thereafter moved the Circuit Court

of Harrison County, West Virginia, to

dissolve the preliminary injunction issued

by the Supreme Court of Appeals of West

Virginia. That motion was denied, and a

permanent injunction was ultimately issued

by the Circuit Court of Harrison County

abrogating the decision of UHC to terminate

the staff privileges of Mahmoodian.

UHC then sought dissolution of the

permanent injunction granted by the Circuit

Court of Harrison County.

The federal questions of whether a

hospital must afford due process to a

physician whose staff privileges are

subject to revocation and what minimum

process must be afforded were raised before

=) Be

the Circuit Court and the Supreme Court of

Appeals of West Virginia.

The Supreme Court of Appeals of West

Virginia held that the medical staffing

decisions of private hospitals are subject

to limited judicial review to ensure that

there was substantial compliance with the

hospital’s medical staff bylaws as well as.

to ensure that the medical staff bylaws

afford "fair hearing procedures", not due

process. The court further held that the

introduction of hearsay evidence before the

Ad Hoc Hearing Committee and the inability

of Mahmoodian to cross-examine adverse

witnesses at that stage of the proceeding

waS reasonable for peer review procedure;

that the conduct proscribed by the bylaws

upon which the revocation is based was not

impermissibly vague; and that "disruptive

conduct" is an appropriate ground for

revocation of hospital staff privileges.

=3 =

REASONS FOR GRANTING WRIT

UNITED HOSPITAL CENTER, INC. IS A STATE

ACTOR, AND IN ACTIONS TO TERMINATE OR

RESTRICT STAFF PRIVILEGES OF ONE OF ITS

PHYSICIANS IT MUST AFFORD THE PHYSICIAN THE

CONSTITUTIONAL SAFEGUARDS OF THE DUE

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

we urge this court to abandon the

private hospital-public hospital dichotomy

and apply the due _ process protections of

the Fourteenth Amendment to actions of all

hospitals in terminating, revoking or

refusing medical staff privileges to a

physician. A public hospital is required

to meet the provisions of the Fourteenth

Amendment when acting on staff privileges

of a physician. We submit that case law

and sound public policy demand such

protection in all hospital decisions

affecting physician privileges.

Medical staff membership is an integral

ai ge

part of a physician’s practice. The

practice of obstetrics and gynecology

necessarily requires medical staff

membership and the availability of

hospital facilities. Substantially all of

Mahmoodian’s patients must be hospitalized

at some time during their treatment. The

denial of medical staff membership

effectively denies an obstetrician/

gynecologist the right to exercise his

profession and is devastating to the

professional life of such a physician.

Mahmoodian has been denied the right to

exercise his profession in the Harrison

County area because UHC enjoys a monopoly

in hospital services in the area. In

addition, public access to medical care is

affected as well. The economic deprivation

of a right to earn a living and public

access to medical care dictate that

procedural due process be preserved.

SS a

=} So

There is a split of authority among the

various jurisdictions on whether there is

sufficient nexus between so-called private

hospitals and the state for such hospitals

to be treated as public for purposes of

staff privileges.

Many state courts have shown a

willingness to review actions of private

hospitals on the ground that private

hospitals are sufficiently involved with

public interest to warrant judicial

intervention. Greisman vy. Newcomb

Hospital, 40 N.J. 389, 192 A.2d 817 (1963);

Woodard v. Porter Hospital, 125 Vt. 419,

217 A.2d 37 (1966); Reiswig v. St. Joseph’s

Hospital and Medical Center, 130 Ariz. 164,

634 P.2d 976 (1981); Bricker v. Sceva

speare Memorial Hospital, 111 N.H._276, 281

A.2d 589 (1971); Miller v. National Medical

Hospital of Monterey Park, Inc., 124 Cal.

App.3d 81, 177 Cal. Rptr. 119 (1981);

iin

Silver vy. Castle Memorial Hospital, 53 Haw.

475, 497 P.2d 564 (1972); Kelly v. st.

Vincent Hospital, 102 N.M. 201, 692 P.2d

1350 (App. 1984).

In Greisman vy. Newcomb Hospital, 40

N.J. 389, 192 A.2d 817 (1963), plaintiff

graduated from the Philadelphia College of

Osteopathy with a degree of doctor of

osteopathy. He was not considered for

staff privileges at defendant hospital

because hospital bylaws required that an

applicant be a graduate of a medical school

approved by the American Medical

Association and be a member of the County

Medical Society, which plaintiff was not.

Plaintiff filed suit demanding that his

application to Newcomb Hospital be

considered without regard to the aforesaid

requirements. Newcomb maintained that it

is a private hospital and that judicial

review of its refusal to consider

-17-

plaintiff’s application for membership was

improper.

The court stated that while

"(hospitals]) are private in the sense that

they are nongovernmental they are hardly

private in other senses." Greisman, 192

A.2d 817, 821. The court recognized that

Newcomb is a non-profit organization

dedicated to the vital public service of

administering to the sick and injured; its

funds are in good measure received from

public sources and public solicitation and

its tax benefits are received because of

its non-profit and non-private aspects.

Moreover, it constitutes a virtual monopoly

in the area in which it functions.

Greisman, 192 A.2d 817, 824.

The court concluded that while the

managing officials may have discretionary

powers in the selection of medical staff,

those powers are deeply imbedded in public

—

aspects, and must be viewed as fiduciary

powers to be exercised for the _ public

good. Thus, judicial review of the

hospital’s refusal to consider plaintiff’s

application was held proper because of the

hospital’s involvement with public good.

The Greisman rationale was also

followed in Davidson v. Youngstown Hospital

Assn., 19 Ohio App.2d 246, 250 N.E.2d 892

(1969); Pinsker v. Pacific Coast Society of

Orthodontists, 42 Cal.3G 541, 116 Cal.

Rptr. 245, 526 P.2d 253 (1974); and Blende

.. Maricopa County Medical Society, 96

Ariz. 240, 393 P.2d 926 (1964).

The reasoning underlying the foregoing

cases likewise requires that due process

safeguards apply to hospital actions

regarding staff privileges. Hospitals are

conducted solely for the benefit of the

general public. Decisions made by the

governing boards directly affect the

atO=

public. Thus, the power to grant or

withhold staff privileges is fiduciary in

nature and due process safeguards must

apply to insure the fiduciary power is

exercised for the public good.

Disregarding the public-private

dichotomy is appropriate considering the

pervasive involvement by state, federal and

self-governing bodies with hospital

functions. The court in Silver v. Castle

Memorial Hosp., 53 Haw. 475, 497 P.2d 564

(1972), cert. denied, 409 U.S. 1048 (1972),

correctly recognized that:

"A private nonprofit

hospital, which receives part of

its funds from public sources and

through public solicitation, which

receives tax benefits because of

its nonprofit and nonprivate

aspects and which constitutes a

virtual monopoly in the area in

which it functioned, is a ‘private

hospital’ in the sense that it is

nongovernmental, but that it is in

no position to claim immunity from

public supervision and control

because of its private nature."

—

It is submitted that the Health Care

Quality Improvement Act of 1986 (the "Act")

and the West Virginia Health Care Peer

Review Organization Protection Act provide

additional basis for providing due process

protection to a hospital’s action to

terminate staff privileges. Under the Act,

physicians individually are given a

qualified immunity from private suit in

certain medical peer review activities.

Thus, a physician may act without

deliberation or recklessly, comfortable in

the knowledge that he or she will not have

to answer for such action. The Fourteenth

Amendment due process safeguards are

necessary to protect against such reckless

conduct.

Governmental involvement in private

hospital operations has become so pervasive

that private hospitals truly are

instrumentalities of the state. The West

Aa peAAD TOT IER SEER Se rere

=%1<

Virginia Legislative Rules of the

Department of Health govern the licensing

and maintenance of al] hospitals. These

regulations and the Health Care Cost Review

Authority effectively limit the bed

capacity within a given geographical area.

By limiting licensure of hospitals and bed

Capacity in a given geographical area, the

state controls the hospital facilities

available to the public. The state,

through licensure procedure, governs the

planning for adequate hospital care

throughout the state. Hospitals which are

granted the privilege of a license are thus

instruments of the state performing the

state’s function of serving the sick and

injured.

The Hospital Licensure Rules and

Regulations regulate nearly every aspect of

hospital operations, including medical

staffing. Section 14.1.1 dictates that

-22-

medical staff be appointed in accordance

with bylaws, rules and regulations of the

governing body of the hospital.

In addition to state governmental

regulation of hospital licensing and staff

appointments, public and private hospitals

alike are subject to governance by the

Joint Commission on Accreditation of

Hospitals (JCAH). Most certainly the JCAH

was established as a self-governing body to

avoid federal and state regulation of

accreditation. This, too, evidences the

public function of private hospitals.

While UHC is a private organization in

the sense that it was founded by private

persons, that is where its private

characteristics end. Private persons do

not profit by its decisions as with private

corporations. Every decision affects the

public, especially staff appointments.

Government has a voice in its management

atte

and control, in the formulation of its

rules, in the management of its affairs and

in the appointment of its medical staff.

Furthermore, UHC was ‘eonstructed in part

with public (Hill-Burton) funds and is

presently receiving public benefits, and

UHC is incorporated into the state’s plan

for providing hospital facilities to the

public. The hospital’s activities are so

entwined with governmental policies that

its actions may be deemed state action.

UHC has acknowledged this public status.

In an article which appeared in the

Clarksburg Telegram (a local newspaper), a

hospital spokesperson stated "UHC is owned

by the community. We built it, we paid for

it, it’s there and we need to keep it

running...that’s why we’ve turned to the

community for help."

To terminate staff privileges of Dr.

Mahmoodian will virtually end the practice

aitho

of medicine for him. He does not have

staff privileges at any other hospital and

therefore cannot treat patients at another

facility, and even if he did have staff

privileges at another hospital, it would be

unfair to the patients to require them to

travel to an adjoining county for

hospitalization. We submit that hospital

staff decisions affect the fundamentally

vested property interest in the pursuit of

one’s livelihood requiring application of

procedural due process safeguards. Anton

Vv. San Antonio Community Hospital, 19

Cal.3d 802, 567 P.2d 1162 (1977). p

The economic impact upon Dr. Mahmoodian

by terminating his staff privileges is

devastating and the impact upon his

patients is terrifying and could result in

a multitude of liability claims against

both Mahmoodian and UHC. Case law, public

policy and logic support the abolition of

~25—

the public-private dichotomy and demand

application of due process safeguards to

all hospital actions *o terminate medical

staff privileges.

Minimum due process protection requires

notice of the conduct which may provide

basis for termination and the right to

cross-examine accusers, which minimum

rights were denied to Mahmoodian.

In Poe v. Charlotte Memorial Hospital,

Inc., 374 F.Supp. 1302 (W.D. N.C. 1974),

the district court stated:

Due process normally requires

that [a hospital] .. . allow the

doctor full opportunity .. . to

question and cross-examine adverse

witnesses and accusers, to

challenge the accusations of

wrongdoing and to present evidence

in his own behalf. A necessary

element is that the opportunity to

defend must be given at a time

when it can be effective. Unless

the defense can speak at a time

when there is a chance to be heard

fairly the opportunity to speak is

a hollow one.

260

In Milford ov. People’s Community

Hospital Authority, 155 N.W.2d 835 (Mich.

1968), the court stated that the minimum

due process protections to be afforded by a

public hospital before staff privileges

could be reduced include a_ reasonably

definite statement of the charge or charges

lodged against the accused and the right to

confront and cross-examine the witnesses

who testify against hin.

A California appellate court recently

held that "fair procedure" requires among

other things that there must be adequate

notice of charges and an opportunity to

confront and cross-examine the accusers.

Sywak v. O’Connor Hospital, 199 Cal. App.3d

423, 244 Cal. Rptr. 753 (1988).

The United Hospital Center bylaws

Section 11.07(e)(9), states that during the

hearing:

-27-

"The affected practitioner

Shall have the following rights:

to call and examine witnesses, to

introduce written evidence, to

cross-examine any witness on any

matter relevant to the issue of

the hearing...."

Certainly, it would have created an

imminently fairer situation had Mahmoodian

been afforded the opportunity to

cross-examine witnesses before the

Investigative Committee. But, conceding

for the purpose of argument that the

committee was investigative only and the

doctor is not entitled to cross-examine

witnesses at that level, Mahmoodian was

denied the right of cross-examination

before the Hearing Committee, which is the

trier of fact, such as a jury is the trier

of fact in a civil case. The members of

the Investigative Committee appeared and

testified as to their interpretation of

what other persons said before the

Investigative Committee. Clearly,

-28-

Mahmoodian was not afforded the minimum

procedural protection to which he was

entitled by law and under UHC’s bylaws.

Section 11.06 of the UHC bylaws

provides that corrective action (amounting

to termination of staff privileges) may be

commenced against a physician:

"whenever the activities or

professional conduct of any

practitioner with clinical

privileges are considered to be

lower than the standards or aims

of the medical staff or to be

disruptive to the operation of the

hospital..."

The accusations against Mahmoodian do

not relate to his clinical competence as a

physician or that the medical care

administered by him has been lower than the

standards or aims of the medical staff. To

the contrary, the testimony before the

committee is that Mahmoodian’s competence

as a physician is considered high. It

-29-

appears abundantly clear from the record in

this case that Mahmoodian is being punished

by the UHC medical staff because he

testified for a few of his patients in

medical negligence cases.

It is submitted that the bylaws are not

sufficiently specific to notify a _ staff

physician at UHC what conduct is

"disruptive to the operation of the

hospital." For example, is it disruptive

if one talks too loud? Is it disruptive if

one jokes with the nurses? Who is to make

the judgment as to what act is disruptive?

In order to meet minimum due process

requirements, the bylaws must give the

doctor some notice of what conduct is not

permissible, to the same extent as notice

for what is permissible with respect to his

clinical competence. This minimum due

process requirement was not met in this

case.

-30-

CONCLUSION

No hospital should be permitted to make

a decision to terminate a physician’s staff

privileges, a decision which could

virtually end the career of a competent

physician with twenty years experience

without providing substantive and

procedural due process to protect against

reckless, unreasonable and wrongful

termination as in this case.

Petitioner respectfully prays that this

court consider the grave affects upon the

public and Mahmoodian, grant this writ,

accord Mahmoodian the process deserved, and

reverse the Supreme Court of Appeals of

West Virginia.

Dated: July 1, 1991

Respectfully submitted,

Jerald E. Jones, Esq.

WEST & JONES

360 Washington Avenue

P. O. Box 2348

Clarksburg, West Virginia 26302

COUNSEL FOR PETITIONER

APPENDIX

-A-1l-

APPENDIX A

IN THE

SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 1991 Term

No. 19504

SAEED MAHMOODIAN, M.D.,

Plaintiff Below, Appellee

Vv.

UNITED HOSPITAL CENTER, INC. AND

BRUCE C. CARTER,

Defendants Below, Appellants;

ALI RAHIMIAN, M.D. AND

FLORENCIA C. LOPEZ, M.D.,

Defendants Below

Appeal from the Circuit Court of

Harrison County

Honorable Daniel L. McCarthy,

Chief Judge

Civil Action No. 89-C-25-1

REVERSED

Submitted: January 6, 1991

Filed April 25, 1991

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Herbert G. Underwood

Irene M. Keeley

Matthew J. Mullaney

Steptoe & Johnson

Box 2190

Clarksburg, WV 26302-2190

Attorneys for the Appellants

Jerald E. Jones

Kathryn K. Ailen

West & Jones

Box 2348

Clarksburg, WV 26302-2348

Attorneys for the Appellee

JUSTICE MCHUGH delivered the Opinion of the

Court.

SYLLABUS BY THE COURT

is The decision of a private hospital

to revoke, suspend, restrict or to refuse

to renew the staff appointment or clinical

privileges of a medical staff member is

subject to limited judicial review to

ensure that there was substantial

compliance with the hospital’s medical

staff bylaws governing such a decision, as

well as to ensure that the medical staff

bylaws afford basic notice and fair hearing

procedures, including an impartial

tribunal.

2. A private or a public hospital,

regardless of the breadth of discretion

that is extended to it, may revoke or

otherwise affect adversely the staff

appointment or clinical privileges of a

medical staff member only if, as an element

of basic notice, the medical staff bylaws

provide a reasonably definite standard

proscribing the conduct upon which the

revocation or other adverse action is

based.

: A hospital may adopt and enforce a

medical staff bylaw providing that the

disruptive conduct of a physician, in the

sense of his or her inability to work in

harmony with other health care personnel at

the hospital, is a ground for denying,

Suspending, restricting, refusing to renew

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or revoking the staff appointment or

clinical privileges of the offending

physician, when such inability may have an

adverse impact upon overall patient care at

the hospital.

4. The decision of a private hospital

revoking or otherwise affecting adversely

the staff appointment or clinical

privileges of a medical staff member will

be sustained when, as an element of fair

hearing procedures, there is’ substantial

evidence supporting that decision.

McHugh, Justice:

This appeal involves the revocation of

a physician’s staff appointment privileges

as a member of the medical staff of a

private hospital. The issues’ include

whether such a revocation is_ subject to

judicial review and, if so, the scope of

that review, as well as whether such a

Ty F

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revocation may be premised exclusively upon

disruptive behavior of a competert

physician which may affect adversely the

quality of patient care at the hospital.

We conclude that the Circuit Court of

Harrison County improperly granted a

permanent injunction against the revocation

of medical staff appointment privileges in

this case and, accordingly, we reverse, for

the reasons stated in this opinion.

I.

PROCEDURAL HISTORY

The record in this case is voluminous,

reflecting both the many steps in the

decision-making process and the

thoroughness of the evidence received.

The appellants, two of the defendants

below, are the United Hospital Center,

inc., of Clarksburg, West Virginia ("UHC"),

and Bruce C. Carter, UHC’s president i The

appellee, the plaintiff below, is Saeed

Mahmoodian, M.D. ("Dr. Mahmoodian"). Dr.

Mahmoodian is a physician, licensed to

practice medicine in the State of West

Virginia. He is board certified in

obstetrics and gynecology. He had been

granted medical staff appointment

privileges in obstetrics and gynecology at

UHC or its predecessor corporation for

about eighteen years at the time the

complaint for injunctive relief was filed

in the circuit court. Dr. Mahmoodian does

not have medical staff appointment

privileges at any other hospital and is not

licensed to practice medicine in any other

state.

UHC is a private, not-for-profit

hospital incorporated under the laws of the

State of West Virginia. It was created

voluntarily by private individuals. It is

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Operated by an elected board of directors.

It is not Owned or operated by any

governmental entity. @

A. Proceedings Before the Medical Staff

In February, 1988, UHC commenced

against or. Mahmoodian the "corrective

action" process at issue here, pursuant to

articles VII and VIII of UHC’s’' medical

staff bylaws. Dr. Mahmoodian was notified

in writing of the charges, including "a

practice of harassment of employees and

physicians" at UHC. An ad hoc

investigative committee, consisting of four

members of UHC’s medical staff who were not

obstetricians/gynecologists, was formed,

even though the medical staff bylaws did

not requir: such a committee. The

investigative committee heard informal

testimony and received affidavits. Dr.

Mahmoodian informally testified before the

investigative committee. He was allowed to

be represented by an attorney at the

investigative committee proceedings.

The investigative committee ultimately

recommended unanimously that Dr.

Mahmoodian’s medical staff appointment

privileges at UHC be revoked for a

virtualiy continuous pattern of disruptive

and unprofessional behavior affecting UHC’s

medical staff physicians and obstetrical

nurses and patients. This behavior had

created a work environment detrimental to

the delivery of quality patient care. 3

The executive committee of the medical

staff, consisting of fourteen of the ninety

medical staff members, adopted unanimously

the investigative committee’s

recommendation. The only

obstetrician/gynecologist cn the medical

staff executive committee abstained from

ee Mt

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4 Dr. Mahmoodian thereafter

voting.

requested and received an evidentiary

hearing before an ad hoc hearing committee

consisting of three medical staff members

who were not obstetrician/gynecologists and

who had not participated in the

investigative process. An impartial local

attorney served as a hearing officer. With

the agreement of the hearing committee,

both Dr. Mahmoodian and the executive

committee of the medical staff were

represented by an attorney at the

evidentiary hearing before the hearing

committee. The hearing committee heard

live testimony, including Dr.

Mahmoodian’s. In addition, both the

executive committee, over Dr. Mahmoodian’s

objection, and Dr. Mahmoodian were

permitted to submit hearsay testimony. »° Dr.

Mahmoodian was afforded the opportunity to

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cross-examine any witness at the

evidentiary hearing and to call his own

witnesses.

After the evidentiary hearing the

hearing committee confirmed unanimously the

medical staff executive committee’s

recommendation to revoke Dr. Mahmoodian’s

medical staff appointment privileges at

UHC. Pursuant to § 8.05(h) of UHC’s

medical staff bylaws, the hearing committee

concluded that the medical staff executive

committee’s recommendation did not "lack

any factual basis" and was not "arbitrary,

unreasonable or capricious." The hearing

committee found that the weight of the

evidence indicated that Dr. Mahmoodian had

instigated the turmoil and hostility in the

obstetrical department of UHC and that the

potential existed that such behavior would

affect patient care adversely. Revocation

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was recommended in lieu of less’ severe

discipline because Dr. Mahmoodian

previously had been reprimanded formally on

one occasion, and his medical staff

appointment privileges had been suspended

for a year on another occasion, for similar

conduct. In addition, Dr. Mahmoodian

refused to accept any responsibility for

any of the turmoil in the obstetrical

department of UHC.

The entire medical staff of UHC

subsequently received Dr. Mahmoodian’s

written response to the charges and

thereafter voted 32-17 to recommend to

UHC’s board of directors that Dr.

Mahmoodian’s medical staff appointment

privileges be revoked. No

obstetrician/gynecologist on the medical

staff voted.

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B. Proceedings Before the Hospital Board

Dr. Mahmoodian, accompanied by an

attorney, later met with the appellate

review committee of UHC’s board of

directors. The appellate review committee

sat as an appellate body, under UHC’s

medical staff bylaws, to review the

personnel decision of the medical staff.

In December, 1988, the appellate review

committee of UHC’s board of directors

affirmed the medical staff’s decision to

revoke Dr. Mahmoodian’s medical staff

appointment privileges, effective at the

end of the day on January 31, 1989, and Dr.

Mahmoodian was notified in writing of that

decision. No obstetrician/gynecologist and

no person who had participated in any of

the medical staff proceedings voted as a

member of the board of directors’ appellate

review committee.

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C. Proceedings Before the Circuit Court

Dr. Mahmoodian subsequently brought a

civil action in the Circuit Court of

Harrison County, West Virginia ("the trial

court"), primarily to obtain an injunction

against UHC’s revocation of Dr.

Mahmoodian’s medical staff appointment

privileges. After a hearing the trial

court, in February, 1989, denied Dr.

Mahmoodian’s request for a preliminary

injunction. Thereafter, Dr. Mahmoodian

requested this Court to grant a preliminary

injunction. In April, 1989, this Court

granted Dr. Mahmoodian’s request for a

~~

preliminary injunction. On November 30,

1989, the trial court, feeling "constrained

to defer" to this Court’s ruling granting a

preliminary injunction, entered an order

granting the permanent injunctive relief

requested by Dr. Mahmoodian. The trial

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court did not, however, change its findings

of fact made when earlier denying a

preliminary injunction.

UHC and its president, Mr. Carter, have

brought this appeal. This Court is the

seventh body to hear this matter (after the

investigative committee, the medical staff

executive committee, the hearing committee,

the full medical staff, the appellate

review committee of the hospital’s board of

directors and the circuit court).

>

SCOPE OF JUDICIAL REVIEW

A. The Law

The threshold question in this case is

whether the revocation of a physician’s

medical staff appointment privileges at a

private hospital is subject to judicial

review and, if so, what is the scope of

that review.

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In syllabus point 4 of State ex rel.

Association, 149 W. Va. 229, 140 S.E.2da 457

(1965), the Court held that "(tjhe

governing authorities of a private

hospital, in the exercise of their

discretion, have the absolute right to

exclude licensed physicians from its

medical staff and such action is not

subject to judicial review." (emphasis

added ) Sams involved, however, the denial

of an jnitial appointment to a private

hospital’s medical staff and did not speak

to the precise question presented here,

specifically, whether a decision of a

private hospital adversely affecting a

medical staff nember’s previously granted

privileges at that hospital is subject to

judicial review. 8

Utilizing breach of contract

principles, most courts explicitly

addressing the issue presented here have

held, and we hereby hold, that the decision

of a private hospital to revoke, suspend,

restrict or to refuse to renew the staff

appointment or clinical privileges of a

medical staff member is subject to limited

judicial review to ensure that there was

substantial compliance with the hospital’s

medical staff bylaws governing such a

decision, as well as to ensure that the

medical staff bylaws afford basic notice

and fair hearing procedures, including an

impartial tribunal. See, e.g., Shulman v.

Washington Hospital Center, 222 F. Supp.

59, 63, 64 (D.D.C. 1963); Eidelson v.

Archer, 645 P.2d 171, 175 xn. 13 (Alaska

1982) (citing cases from other

jurisdictions); Gaenslen Vv. Board of

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Directors, 185 Cal. App. 3d 563, 568, 232

Cal. Rptr. 239, 241-42 (1985); Gianetti vy.

Norwalk Hospital, 211 Conn. 51, 61-67, 557

A.2d 1249, 1254-56 (1989) (citing cases

from other jurisdictions); Adkins v. Sarah

Bush Lincoln Health Center, 129 Ill. 2a

497, 506-07, 509-10, 514, 544 N.E.2d 733,

737-38, 739, 741 (1989); Pepple v. Parkview

Memorial Hospital, Inc., 536 N.E.2d 274,

276 (Ind. 1989); Porter Memorial Hospital

v. Malak, 484 N.E.2d 54, 61 (Ind. Ct. App.

1985); State ex rel. Willman v. St. Joseph

Hospital, 684 S.W.2d 408, 411, 412 (Mo. Ct.

App. 1984), application to transfer denied

(Mo. Feb. 26, 1985); syl. pt. 2, is v.

Lorain Community Hospital, 46 Ohio App. 2d

8, 345 N.E.2d 641 (1974) (citing, in body

of opinion, cases from other

Jurisdictions); Miller v. Indiana Hospital,

277 Pa. Super. 370 - P , 419

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A.2d 1191, 1193-94, 1196 (1980), appeal

denied (Pa. Oct. 1, 1980). 2

The judicial reluctance to review the

medical staffing decisions of private

hospitals, by way of injunction,

declaratory judgment or otherwise, reflects

the general unwillingness of courts’ to

substitute their judgment on the merits for

the professional judgment of medical and

hospital officials with superior

qualifications to make such decisions.

Furthermore, a private hospital’s actions

do net constitute state action and,

therefore, are not subject to scrutiny for

compliance with procedural "due process,"

which is constitutionally required when

there is state action. However, there are

basic, common-law procedural protections

which must be accorded a medical staff

member by a private hospital in a

disciplinary proceeding which could

seriously affect his or her ability to

practice medicine. Such basic procedural

protections include notice of the charges

and a fair hearing before an impartial

tribunal. If a private hospital’s medical

staff bylaws provide these basic procedural

protections, and if the bylaws’ procedures

are followed substantially in the

particular disciplinary proceeding, a court

usually will not interfere with the medical

peers’ recommendation and the hospital’s

exercise of discretion on the merits. See,

e-g-, Adkins v. Serah Bush Lincoln Health

Center, 129 I11l. 2d 497, 507, 509-10, 514,

544 N.E.2d 733, 738, 739, 741 (1989);

Bend, Inc., 523 N.E.2d 252 (Ind. Ct. App.

1988).

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In this regard the fact that

individuals conducting good-faith health

care peer review are statutorily immunized

from civil liability for damages evinces a

public policy encouraging health care

professionals to monitor the competency and

professional conduct of their peers in

order to safeguard and improve the quality

of patient care. See W. Va. Code, 30-3C-1

to 30-3C=3, as amended; 42 U.S.C. §§

11101-11152, as amended2° while these peer

review immunity statutes do not foreclose

judicial review in proceedings seeking

injunctive or declaratory relief, see H. R.

Rep. No. 903, 99th Cong., 2d Sess. 9,

reprinted in 1986 U.S. e ‘

News 6384, 6391, it is evident that the

intent of these statutes was not to

disturb, but to reinforce, the preexisting

reluctance of courts to substitute their

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judgment on the merits for that of health

care professionals and of the governing

bodies of hospitals in an area within their

expertise. 11

Further support for the conclusion that

judicial review of health care peer review

decisions should be narrow in scope is

furnished by the fact that, under the last

paragraph of W. Va. Code, 30-3-14(b) [1986,

1989], "any disposition of a [medical

licensing] case by the [West Virginia]

board [of medicine] does not preclude any

action by a hospital, other health care

facility or professional society » « &

Suspend, restrict or revoke the privileges

or membership of such physician[.]" Again,

the legislative intent for medical staffing

decisions is to defer generally to the

judgment and discretion of the health care

peers and hospital governing authorities.

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We note, too, that there is no statute

in this case expressly providing for

appellate review by the courts of health

care peer review decisions. This fact

Suggests a legislative intent that there be

a limited scope of judicial review in

proceedings invoking, for example, the

extraordinary jurisdiction of courts to

award injunctions. "In so specialized and

sensitive an activity as governing a

hospital, courts are well advised to defer

to those with the duty to govern."

N bj jet! Li ial

Hospital, 107 N.J. 240, 251, 526 A.2da 697,

702-03 (1987). Underlying the limited

scope of judicial review of health care

peer review decisions is an awareness that

courts should allow hospitals, as long as

they proceed fairly, to run their own

business. That awareness is tempered by

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the recognition that physicians need

hospital medical staff appointment

privileges and clinical privileges to serve

their patients; therefore, hospitals must

treat physicians fairly in making decisions

about those privileges. Id. at 249-50, 526

A.2d at 702.

B. Fairness of Hearing Procedures Here

Dr. Mahmoodian claims that UHC in one

aspect did not comply substantially with

the bylaws of its medical staffl2and in

another aspect did not provide a fair

procedure for revocation of his staff

appointment privileges. This Court

disagrees.

Dr. Mahmoodian contends that it was an

unfair procedure to allow members of the

investigative committee to testify before

the hearing committee as to their

interpretation of what other persons had

~A-24-

Said before the investigative committee.

Dr. Mahmoodian argues that this procedure,

over his objection at the time, denied him

his right to confront and cross-examine

these other persons not appearing as

witnesses at the evidentiary hearing before

the hearing committee.

Dr. Mahmoodian was not denied his right

to cross-examine those persons who were

witnesses at the evidentiary hearing. The

medical staff and the hospital lacked the

power to subpoena persons to be witnesses.

The hearsay testimony in question certainly

was not the only evidence before the

hearing committee; there was. substantial

evidence supporting the charges of

disruptive conduct by Dr. Mahmoodian and

Supporting the finding that such conduct

was creating a work environment detrimentai

to the quality of patient care. On the

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critical question of whether Dr.

Mahmoodian’s disruptive conduct could

threaten the care of obstetrical patients

at the hospital, Dr. Mahmoodian had full

Opportunity at the evidentiary hearing to

cross-examine the members of the

investigative committee whose opinions it

was that Dr. Mahmoodian’s conduct put

obstetrical patients at risk. In addition,

prior to the evidentiary hearing, Dr.

Mahmoodian had access to the written

materials relied upon by the medical staff

executive committee, and Dr. Mahmoodian had

the opportunity at the evidentiary hearing

to rebut the adverse evidence. The record

indicates that he was thoroughly prepared

to rebut all of the adverse evidence at the

evidentiary hearing. It 1s interesting to

note in this regard that Dr. Mahmoodian

utilized the same form of evidence about

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which he complains, by sukmsitting a few

favorable letters from third parties who

were not witnesses at the evidentiary

hearing.

The procedure in question was

reasonable for peer review. Silver vy.

Castile Memorial Hospital, 53 Haw. 475, 485,

497 P.2d 564, 571, 572, cert. denied, 409

U.S. 1048, 93 S. Ct. 517, 34 L. Ed. 2d 500

(1972); Miller v. Indiana Hospital, 277 Pa.

Super. 370, , 419 A.2d 1191, 1194

(1980), appeal denied (Pa. Oct. 1, 1980).

The procedure here certainly complied with

the medical staff bylaws, which authorized

an evidentiary hearing without strict

adherence to evidentiary rules applicable

to civil or criminal trials in courts of

see supra note 5. Also, each of the

procedu rights afforded Dr. Mahmoodian

would isfy the hearing standards

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established by the Federal Health Care

Quality Improvement Act of 1986. 42 U.S.C.

§11112(b)(3) (1988). +3

As found by the trial court, there was

Substantial compliance with the hospital’s

medical staff bylaws in this case, and we

believe that those bylaws afforded Dr.

Mahmoodian basic notice and fair hearing

procedures.

Bide

BYLAWS ON DISRUPTIVE CONDUCT

Dr. Mahmoodian challenges the

revocation of his medical staff appointment

privileges upon the basis of his disruptive

conduct, He asserts: (1) that the medical

Startf bylaws are vague on this point; (2)

that disruptive conduct of a medical staff

member does not constitute a legally

sufficient ground for revoking or otherwise

affecting adversely a medical staff

member’s staff appointment privileges at a

hospital, unless there is a "substantial"

and "specific" threat to patient care from

that conduct; and (3) that there was

insufficient evidence supporting the

hospital’s decision to revoke his staff

appointment privileges. This Court

disagrees with each of these assertions.

A. Vagueness of Disruptive

Conduct Bylaws

The pertinent part of section 7.01 of

UHC’s medical staff bylaws provides:

Whenever the activities or

professional conduct of any

practitioner with Clinical

privileges are considered to be

lower than the standards or aims

of the medical staff or to. be

or if any such

practitioner is exercising or

intending to exercise unauthorized

clinical privileges, corrective

action against such practitioner

may be requested[. ]

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(emphasis added) In addition, section 3.02

of UHC’s medical staff bylaws provides, in

relevant part, that one of the

qualifications for membership is "an

ability to work with others" so as to

assure the medical staff and the hospital’s

governing board "that any patient treated

by [the physician in question] will be

given a high quality of medical care[.]"

(emphasis added)

Consistent with the authorities

elsewhere, such as v. William

Booth Memorial Hospital, 544 S.W.2d 216

(Ky. 1976), this Court holds that a private

or a public hospital, regardless of the

breadth of discretion that is extended to

3, may revoke or otherwise affect

adversely the staff appointment or clinical

privileges of a medical staff member only

if, as an element of basic notice, the

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medical staff bylaws provide a reasonably

definite standard proscribing the conduct

upon which the revocation or other adverse

action is based. Id. at 218. 14

Here, the medical staff bylaws

proscribe professional conduct which is

"disruptive to the operations of the

hospital," and the bylaws require a medical

staff member to have "an ability to work

with others" in the sense that high quality

patient care will be provided. Identically

worded medical staff bylaws were before the

court in, for example, McMillan v.

Anchorage Community Hospital, 646 P.2d 857

(Alaska 1982), and the court there decided

that a post-hearing revocation of staff

appointment privileges, rather than a

prehearing suspension, would have been

proper, under the circumstances, for a

physician’s disruptive conduct, that is,

a

the inability of the physician to work with

others. The court believed the relevant

bylaws were clear. Id. at 858 n. 1, 862,

867. See also Huffaker v. Bailey, 273 or.

ata, 275-76, 540 P.2d 1398, 1399-1400

(1975) (medical staff bylaws requiring

physicians’ ability to work with others to

assure "high quality of medical care" was

not impermissibly vague).

Accordingly, we believe sections 7.01

and 3.02 of the medical staff bylaws in

this case set forth a reasonably definite

standard of professional conduct for

purposes of basic notice to medical staff

members as to what behavior is and is not

expected of then. Moreover, in this

particular case, given Dr. Mahmoodian’s

history as_ far back as 1974 of seven other

"corrective actions" by the medical staff

for Similarly disruptive behavior, his

~“h~32

assertion that he did not know what

constituted such behavior is implausible.

B. Disruptive Conduct as

Ground for Revocation

In making medical staffing decisions a

private or a public hospital may consider

factors in addition to technical medical

Skills or medical competence. Schlein v.

Milford Hospital, 423 F. Supp. 541, 544 (D.

Conn. 1976), aff’d on other grounds, 561

F.2d 427 (2d Cir. 1977); Huffaker _v.

Bailey, 273 Or. 273, 277, 540 P.2d 1398,

1400 (1975). In fact, a hospital may

establish, and a court should sustain, a

standard for granting or maintaining

medical staff appointment or clinical

privileges if that standard is rationally

related to the delivery of quality health

care to patients as awhole. Nanavati v.

Burdette Tomlin Memorial Hospital, 107 N.J.

240, 249, 526 A.2d 697, 701 (1987). Thus,

a hospital has the right, indeed the duty,

to ensure that those persons who are

appointed to its medical staff meet certain

standards of professional competence and

professional conduct, so long as there is a

reasonable nexus between those standards

and the hospital’s mission of providing

overall quality patient care. This point

was stated in the following manner in

Miller v. Eisenhower Medical Center, 27

Cal. 3d 614, 614 P.2d 258, 166 Cal. Rptr.

826 (1980) (en banc):

[Tj]he providing of high quality

patient care is, quite properly,

the primary concern of all

hospital institutions. The

governing authority bears the

responsibility for assuring that

this goal is achieved to the

greatest extent possible, and its

decisions relating to medical

staff must take into account all

factors which have a legitimate

relationship to it. . . . [A]n

applicant’s [or a medical staff

member ’s } ability to work with

other medical personnel in the

~A-34-

hospital setting may ... have a

clear effect on the level of

patient care provided.

27 Cal. 3d at 628-29, 614 P.2d at 267, 166

Cal. Rptr. at 835,

The importance of professional conduct,

as well as professional competence, is also

Shown by the fact that regulations of the

State Division of Health of the State

Department of Health and Human Resources

provide that the medical staff shall be

accountable to the hospital’s governing

body for the quality of medical care which

is provided to hospital patients and for

the ethical and professional conduct of its

members while functioning in the hospital.

Thus, the members of the hospital’s medical

staff must be legally, professionally and

ethically qualified. 5 W. Va. Code of

State ___—_—-Rules §§ 64-12-14.1.1,

“—~-35-

64-12-14.1.1(c)(3) (1987). In this regard

the ethical standards established by the

American College of Obstetricians and

Gynecologists, of which Dr. Mahmoodian is a

member, advise a member not to "use

Opportunities arising out of contact with

patients, colleagues, or the general public

for self-aggrandizement or for demeaning

the reputation of a colleague."

AS a specific type of unprofessional

conduct, behavior "disruptive to the

operations of the hospital" or, stated

another way, an inability to work with

other health care personnel at the hospital

is a matter of legitimate concern to a

hospital in making medical staffing

decisions. Consequently, virtually all of

the courts addressing the issue have held,

and this Court hereby holds, that a

hospital may adopt and enforce a medical

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staff bylaw providing that the disruptive

conduct of a physician, in the sense of his

or her inability to work in harmony with

other health care personnel at the

hospital, is a ground for denying,

Suspending, restricting, refusing to renew

or revoking the staff appointment or

clinical privileges of the offending

physician, when such inability may have an

adverse impact upon overall patient care at

the hospital. See, e.g., Lipsett v.

University of Puerto Rico, 637 F. Supp.

789, 809 (D.P.R. 1986), rev’d on other

grounds, 864 F.2d 881 (ist Cir. 1988);

Robbins v. Ong, 452 F. Supp. 110, 115 (S.D.

Ga. 1978); Schlien v. Milford Hospital, 423

F. Supp. 541, 544 (D. Conn. 1976), aff’d on

other grounds, 561 F.2d 427 (2d Cir. 1977);

Shulman v. Washington Hospital Center, 222

F. Supp. 59, 64 (D.D.C. 1963); McMillan v.

-A-37-

Anchorage Community Hospital, 646 P.2d 857,

865, 867 & n. 13 (Alaska 1982); Miller v.

is Ow , 27 Cal. 3d 614,

628-29, 614 P.2d 258, 267, 166 Cal. Rptr.

826, 835 (1980) (en banc); Even v. Longmont

United Hospital Association, 629 P.2d 1100,

1103 (Colo. Ct. App. 1981); Silver vy.

Castle Memorial Hospital, 53 Haw. 475, 479,

497 P.2d 564, 568, cert. denied, 409 U.S.

1048, 72 Bs CEs Dass 34 LL. Ed. 2d 500

(1972); Ladenheim v. Union County Hospital

District, 76 Ill. App. 3d 690, 98, 394

N.E.2d 770, 776 (1979); Yarnell v. Sisters

of St. Francis Health Services, Inc., 446

N.E.2d 359, 363 (Ind. Ct. App. 1983);

Bricker v. Sceva Speare Memorial Hospital,

111 N.H. 276, 280-81, 281 A.2d 589, 592-93,

cert. denied, 404 U.S. 995, 92 S. Ct. 535,

30 L. Ed. 2d 547 (1971); Nanavati vy.

Burdette Tomlin Memorial Hospital, 107 N.J.

-A~38-

240, 252-55, 526 A.2d 697, 703-05 (1987);

Van _Campen v. Olean General Hospital, 210

A.D. 204, 208, 205 N.Y.S. 554, 556-57

(1924), aff'd mem., 239 N.Y. 615, 147 N.E.

219 (1925); Straube v. Emanuel Lutheran

Charity Board, 287 Or. 375, 384, 600 P.2d

381, 387 (1979) (en banc), cert. denied,

445 U.S. 966, 100 S. Ct. 1657, 64 L.Ed. 2d

242 (1980); Huffaker v. Bailey, 273 Or.

273, 278-79, 540 P.2d 1398, 1400-01 (1975);

Hagan v. Osteopathic General Hospital, 102

R.I. 717, 726, 232 A.2d 596, 601 (1967).

see generally Springer & Casale, Hospitals

and the Disruptive Health Care

Dug. L. Rev. 377 (1985) (answering that

question in the affirmative).

Several of these courts have emphasized

that one of the principal reasons for

-A-39-

upholding a "disruptive conduct" bylaw of a

hospital’s medical staff is that quality

patient care in a hospital setting requires

"team work" and compatibility between

physicians, nurses and other health care

personnel. !°

As stated in the Miller opinion, cited

above, the California courts have required

a showing of a "substantial" and "specific"

threat to patient care as a component of

disruptive conduct of a physician

Justifying a hospital’s action adversely

affecting that physician’s medical staff

appointment or clinica] privileges.

Similarly, as stated in the Nanavati

opinion, cited above, the New Jersey courts

have required a showing that the

Pphysician’s disruptive conduct "probably"

will have an adverse impact on patient

Care.

-A-40-

Virtually all of the other courts,

however, which have specified the degree of

likelihood that overall patient care will

be threatened have upheld the right of a

hospital to act whenever the physician’s

disruptive conduct, in the expert opinion

of the hospital authorities, "may" or

"could" affect adversely overall patient

care. This majority view is consistent

with the Federal Health Care Quality

Improvement Act of 1986, which addresses

peer review activity based upon the

competence or professional conduct of a

physician which “affects or could affect

adversely the health or welfare of a

patient or patients[.]" 42 U.S.C. § 11151

(9) (1988). We believe the formulation of

most courts is reasonable, although we do

observe that the potential effect on

patient care may not be presumed but must

-A-41-

be shown by the evidence. As even the New

Jersey courts have recognized, though, a

hospital need not wait for a disruptive

physician to harm a patient before revoking

A medical staff member ’s privileges.

Nanavatli, 107 N.J. at 254, 526 A.2d at 704.

The mere fact that a physician is

lrascible, however, or that he or she

generally annoys other physicians, nurses

or administrators does not constitute

sufficient cause for termination of his or

her hospital privileges. Likewise, a

physician should not be removed from

medical staff membership merely because he

or she has criticized hospital practices or

other health care personnel at the

nospital. On the other hand, a physician

may be so disruptive as to throw the

hospitai, or a segment of it, into turmoil

and t prevent 1t from functioning

-A-42-

effectively. So substantial a disruption

reasonably could lead the hospital

authorities to find that overall patient

care may be threatened, thereby

constituting good cause for termination of

the physician’s hospital privileges.

In the present case the _ pertinent

bylaws are quoted at the outset of section

Ifl.A. of this opinion, supra. Section

3.02 of UHC’s medical staff bylaws

explicitly links (1) the ability to work

with others and (2) its effect on patient

care at the hospital. Reading section 7.01

of the bylaws in the same fashion, that is,

as requiring a showing that the

professional conduct is’ so "disruptive to

the operations of the hospital" that it may

have an adverse impact upon overall patient

care at the hospital, this Court concludes

that these two bylaws are substantively

“a~§3-

reasonable.

C. Sufficiency of the Evidence

Dr. Mahmoodian finally argues’ that

there was insufficient evidence to support

UHC’s decision to revoke his staff

appointment privileges.

While some courts refuse to review the

sufficiency of the evidence to support a

private hospital’s decision adversely

affecting a medical staff member’s hospital

privileges, see e.g., Pepple v. Parkview

Memorial Hospital, Inc., 536 N.E.2d 274,

276 (Ind. 1989), and while the expertise of

the medical peers and the discretion of the

governing body of a private (or a public)

hospital with respect to medical staffing

decisions are entitled to judicial

deference, an jnherent element of "fair

hearing procedures" is a requirement of

sufficient evidence to support the

~A-44-

hospital’s decision, a matter to be

determined by a court in a_e proceeding

seeking injunctive or declaratory relief.

Other courts have stated in various

terms the amount of evidence necessary upon

judicial review to support a private

hospital’s decision affecting adversely a

medical staff member ’s hospital

privileges. See, e-.g., Even v. Longmont

United Hospital Association, 629 P.2d 1100,

1103 (Colo. Ct. App. 1981) ("findings of

the board were supported by competent

evidence, and are binding on review");

287 Or. 375, 384, 600 P.2da 381, 386 (1979)

(en banc) ("evidence from which it could be

found that [physician’s] conduct posed a

threat to patient care"), cert. denied, 445

U.S. 966, 100 S. Ct. 1657, 64 L. Ed. 2d 242

(1980). Regardless of the phraseology of

-A-45-

these courts, the prevailing standard for

judicial review of the findings of a

private hospital in these decisions

affecting medical staff members’ privileges

appears to be either an arbitrary and

capricious (or abuse of discretion)

standard or a substantial evidence

standard.

Consistent with these authorities, this

Court holds that the decision of a private

hospital revoking or otherwise affecting

adversely the staff appointment or clinical

privileges of a medical staff member will

be sustained when, as an element of fair

hearing procedures, there is_ substantial

evidence supporting that decision. For a

definition of "substantial evidence" for

purpose of judicial review see West

Virgini v. West

Virginia Human Ri ghts Commission, __ WwW.

-~A-46-

Va. , , 383 S.E.2d 490, 497-98

(1989).

Some of the more egregious incidents

Supporting the hospital’s decision in this

case include the following.

Dr. Mahmoodian interfered with a lymph

node biopsy being performed by his

archrival, another obstetrician/

gynecologist, Dr. Rahimian. When Dr.

Mahmoodian thought he had discovered

evidence that Dr. Rahimian was performing a

Surgical procedure for which he was not

privileged, he (Dr. Mahmoodian) strode into

the operating room suite and demanded that

a nurse, who was the operating room

coordinator, stop Dr. Rahimian’s surgery.

Dr. Mahmoodian did not follow the

appropriate procedure of complaining before

the surgery to the chief of Surgery or to

the Chief of the medical staff. Dr.

-A-47-

Mahmoodian waited until the case was in

progress before demanding of the nurse that

the procedure be _ stopped. The danger to

patient care is obvious.

In the case of a patient named Virginia

Edgell, one of the hospital’s family

practice residents called Dr. Mahmoodian at

1:30 a.m. and requested a caesarean section

evaluation on this patient, who had been in

labor for fifteen to sixteen hours and had

had no progress for about eight hours. Dr.

Mahmoodian did not come to the hospital to

see the patient but advised that the

patient could wait until morning. The

physician supervising the family practice

residents suggested that it was reasonable

to obtain a second opinion. Dr. Rahimian

was consulted, came to the hospital,

evaluated the patient and performed a

caesarean section. The next morning, when

-~A-48-

Dr. Mahmoodian learned that Dr. Rahimian

had done a Caesarean section on the

patient, he (Dr. Mahmoodian) wrote a

consultation note in the chart, the

accuracy of which the family practice

resident disputed. In the note Dr.

Mahmoodian stated that he had told the

resident he would come to the hospital in

the morning and do a section, cr, if the

resident wanted him before then, he could

call and Dr. Mahmoodian would come in. The

resident testified that Dr. Mahmoodian had

told him not to call back unless a problem

developed with the fetal heart monitor and

that the patient could wait until morning.

Dr. Mahmoodian’s actions in this’ case

prompted the chief of the medical staff to

warn Dr. Mahmoodian in writing to come to

the hospital to evaluate patients when

called by a resident. Again, the threat to

-A-49-

patient care is obvious.

The obstetrical department nurse

manager testified that Dr. Mahmoodian

refused to give verbal orders to the

registered nurses with whom he was

feuding. Instead, he would give_ such

orders to licensed practical nurses only,

who, as he knew, were not authorized under

hospital policy to accept verbal orders

from a physician. That practice made it

necessary for a registered nurse to whom he

would speak to call back to Dr. Mahmoodian

to receive formally the order. The impact

of this circuity was that orders’ were

delayed and quality patient care was

implicated.

The record also documents the loss of

at least one obstetrician/gynecologist

candidate recruited by the hospital, due to

Dr . Mahmoodian’s behavior and remarks.

-A-50-

This fact evinces the threat Dr. Mahmoodian

represents to the continued viability of

this critical health service at UHC.

The record is replete with other

evidence supporting the hospital’s decision

to revoke Dr. Mahmoodian’s staff

appointment privileges. In short, there

was substantial evidence supporting that

decision. Such decision was’ reached

reluctantly by the hospital, but the record

establishes that this drastic action was

based upon the informed recommendation of

the medical peers after fair hearing

procedures and was within the sound

discretion of the hospital. 16

Accordingly, this Court reverses the

final order of the Circuit Court of

Harrison County granting Dr. Mahmoodian’s

request for a permanent injunction against

the hospital’s revocation of his medical

-A-3i-

staff appointment privileges.

Reversed.

-A-52-

FOOTNOTES

Ithe other two defendants named below,

Ali Rahimian, M.D., and Florencia C. Lopez,

M.D., are not parties to this appeal.

yr. Mahmoodian contends that UHC is a

"state actor" which must adhere to federal

and state constitutional "due process"

requirements when deciding to revoke or

otherwise to affect adversely the medical

staff appointment privileges of a

physician. In support of this contention

Dr. Mahmoodian argues that UHC serves the

public interest in community health;

receives funds from governmental sources;

and is subject to some governmental

regulation, such as licensing, health care

cost containment, statutorily required

consumer representation on hospital boards

of directors and statutorily required open

proceedings of hospital boards of

directors.

The Court rejected such a public entity

argument in State ex rel. Sams v. Ohio

Valley General Hospital Association, 149 WwW.

Va. 229, 140 S.E.2d 457 (1965) (syl. pts.

2-3 and 149 W. Va. at 234-37, 140 S.E.2d at

460-62). see also Queen v. West Virginia

: ital I

a —__/

- , 365 S.E.2d 375, 383-85 (1987)

(public hospital; Sams distinguished);

Orteza Vv. Monongalia County General

Hospital, nti Va. , ag , 318

$.E.2¢a 40, 43-45 (1984) (Sams quoted

approvingly in light of United States

Supreme Court cases and other post-1973

federal cases discussed). The contrary

Opinion in Sams _v. Ohio Valley General

Hospital Association, 413 F.2d 826, 828

—_— ee”

-A-53-

(4th Cir. 1969) (receipt of federal funds

converts private hospital into governmental

actor), was overruled in Modaber v.

j j , 674 F.2d

1023, 1025-26 (4th Cir. 1982), in light of

United States Supreme Court opinions after

1973.

This Court believes that an extensive

discussion of this public hospital/private

hospital dichotomy distracts attention from

more significant issues in this case. The

limited record before us on the point

Supports the factual finding of the Circuit

Court of Harrison Count that UHC is a

private hospital for purposes of personnel

decisions. Our analysis will, therefore,

be based upon UHC’s private status.

We do note that the scope of judicial

review of health care peer review decisions

adversely affecting the privileges of a

medical staff member is essentially the

same for private and public hospitals.

While such decisions of public hospitals

must be reached after affording "due

process," and such decisions of private

hospitals must be reached after affording

"fair procedures," recent federal

legislation will encourage essentially all

hospitals to use the same procedures. See

infra note 10.

4rne investigative committee also

recommended that Dr. Mahmoodian’s clinical

privileges to perform a certain type of

surgery (a Werthein, or "radical,"

hysterectomy with pelvic lymphadenectomy)

be suspended, due to apparent inexperience

Or incompetence, even if Dr. Mahmoodian’s

medical staff appointment privileges would

-A-54-

not be revoked completely. This appeal

does not involve that matter.

Sor. Mahmoodian’s contention to the

contrary notwithstanding, UHC’s medical

staff bylaws did not require any

investigative committee’s recommendation to

be submitted initially to the entire

medical staff. This executive committee of

the medical staff was empowered under the

bylaws to vote upon the investigative

committee’s recommendation prior to

Submission of the matter to the entire

medical staff. Submission of the matter to

the entire medical staff occurred here

after the hearing committee’s

recommendation. The medical staff bylaws

were followed in this regard. Moreover,

this procedure avoided any claim that the

entire medical staff had "prejudged" the

matter by voting on the investigative

committee’s recommendation prior to voting

on the hearing committee’s recommendation.

"According to § 8.05 (g) of UHC’s

medical staff bylaws, the hearing need not

be conducted strictly according to rules of

law relating to the examination of

witnesses or presentation of evidence.

Instead, any relevant matter upon which

reasonable persons customarily rely in the

conduct of serious affairs is to be

considered, regardless of the existence of

any common-law or statutory rule which

might make evidence inadmissible over

objection in a civil or criminal action in

a court of law. As stated in § 8.05 (4) of

the medical staff bylaws, the purpose of a

hearing is to resolve, on an

intraprofessional basis, matters bearing on

professional competency and conduct.

—

-A~55-—-

CLike many private and public health

care facilities, UHC’s medical staff bylaws

had been based upon the model of, and

approved by, an independent,

nongovernmental organization known as the

Joint Commission on the Accreditation of

Health Care Organizations, formerly called

the Joint Commission on the Accreditation

of Hospitals. As required by state

regulations, UHC’s board of directors had

also approved these bylaws. See 5 W. Va.

§64-12-7.2.1(a)(2)

(1987).

‘The trial court later certified certain

questions to this Court after denying a

motion to dissolve the preliminary

injunction. This Court declined to docket

the certified questions.

SSams and State ex rel.

, 148 W. Va. 568, 572, 136

S.E.2d 783, 786 (1964) (dicta; public

hospital), are consistent with the clear

majority rule elsewhere of nonreview by the

courts of private hospital’s decisions

denying initial appointments to such

hospitals’ medical staffs. For collections

of cases on that point, including the

approximately ten jurisdictions which

follow the minority rule of subjecting

private hospital’s medical staff initial

appointment decisions to judicial review of

the merits, see Barrows v. Northwestern

» 123 Ill. 2a 49, 525

N.E.2d 50 (1988) (following majority rule

of nonreview); Hottentot Vv. Mid-Maine

Medical Center, 549 A.2d 365 (Me. 1988)

(following majority rule of nonreview);

annotation, Exclusion of or Discrimination