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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 863

## Text

| { 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

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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

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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

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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.

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2424%3A2. Public record. Not legal advice.