Opposition — Dolenz v. All Saints Episcopal Hospital

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No.

Surma Counr oF ra Um Sta

OCTOBER TERM, 1982

BERNARD J. DOLENZ, M.D., Petitioner

vs.

ALL SAINTS EPISCOPAL HOSPITAL, Respondent

Brief in Opposition to

Petition for Writ of Certiorari to

The Supreme Court of Texas

JOHN M. SCOTT

BROWN, HERMAN, SCOTT,

DEAN & MILES

203 Fort Worth Club Building

Fort Worth, Texas 76102

(817) 332-1391

Attorneys for Respondent

All Saints Episcopal Hospital

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Fort Worth Brief Printing Co., 610 South Jennings Avenue, Fort Worth, Texas 76104 Phone 817-332-4070

TABLE OF CONTENTS

Page

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PARI iby ca oss dec uses vekeneedscaceenapencseuneeiniosones 4

A. Lack of a Judgment from the Highest State Court in

Which a Decision Could Be Rendered, and Independent

State Ground for Upholding Decisions Below................ 4

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2) Failure to File Sufficient Transcript ................0.see0+ 6

B. Lack of Merit to Petition for Writ of Certiorari.............. 7

Fourteenth Amendment Concepts of Due Process

Do Not Apply to a Private Hospital in Recission of a

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TABLE OF AUTHORITIES

Cases: Page

Cardio-Medical Associates v. Crozer-Chester Medical Center,

Be Fn hs Be rs TOs nsivsasavenasnccaccaseceneanneneas 9

Ellis v. Dixon, 75 S.Ct. 850, 349 U.S. 458, 99 L.Ed. 1231 (1955).. 5

Englander Company v. Kennedy, 428 S. W.2d 806 (Tex. 1968) .... 6

Gage v. Langford, 615 S.W.2d 934 (Tex. Civ. App.-Eastland

We OU 5

Greco v. Orange Memorial Hospital, 513 F.2d 873, 882

Ie, I oi ik suns 8

Jackson v. Metropolitan Edison Comnany, 419 U.S. 345,

ei, Oe aE. BED, OE Ek, O77 TO. nay oases ccna vncnsenecees 7-8

Kelley v. Kelley, 575 S.W.2d 612 (Tex.Civ.App.-San Antonio

We We 7

Madry v. Sorel, 558 F.2d 303, 304 (5th Cir. 1977) ...............05. 8

Modaber v. Culpeper Memorial Hospital, Inc., 674 F.2d 1023

I TN gry oc secs bc ch enecscencasin 9

Nagelson v. Fair Park National Bank, 351 S.W.2d 925, 929

(Tex.Civ.App.-Dallas 1968, writ ref., n.r.e.)...........cccceeeees 7

Newman v. Gates, 27 S.Ct. 220, 223, 204 U.S. 89, 95,

eR i i ee 4

Ratcliff v. Bruce, 423 S.W.2d 614 (Tex. Civ. App.-Houston 1968,

writ ref., n.r.e., cert. denied 89 S.Ct. 134, 393 U.S. 848, 21

L.Ed.2d 118, rehearing denied 89 S.Ct. 373, 393 U.S. 956,

CGR A eee Eo Oued Rape e MOEN MMR ROKER 7

Rules of Procedure:

Vernon’s Ann. Rules of Civ., Pro.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

BERNARD J. DOLENZ, M.D., Petitioner

vs.

ALL SAINTS EPISCOPAL HOSPITAL, Respondent

Brief in Opposition to

Petition for Writ of Certiorari to

The Supreme Court of Texas

QUESTIONS PRESENTED

1. Whether a Petitioner who has failed to follow state

procedural rules, and has thus failed to perfect his

appeal, presents this Court with a Petition for Writ of

Certiorari which may be granted?

2. Whether Fourteenth Amendment concepts of Due

Process apply to the recission of a doctor’s staff privi-

leges by a private hospital?

RULES OF PROCEDURE

The following state rules of procedure are involved in

the resolution of this Petition:

2

Rule 65. Substituted Instrument Takes Place of

Original

Unless the substituted instrument shall be set

aside on exceptions, the instrument for which it is

substituted shall no longer be regarded as a part

of the pleading in the record of the cause, unless

some error of the court in deciding upon the

necessity of the amendment, or otherwise in

superseding it, be complained of, and exception be

taken to the action of the court, or unless it be nec-

essary to look to the superseded pleading upon a

question of limitation.

Rule 371. Record on Appeal Defined

The record on appeal shall consist of a transcript

and, where necessary to appeal, a statement of

facts.

Vernon’s Ann. Rules of Civ. Pro.

STATEMENT OF THE CASE

The Plaintiff's First Amended Petition, filed March 14,

1978, requested injunctive relief for the Petitioner to be

placed back on the medical staff of the Respondent, and

also sought damages for slander. A Temporary Restrain-

ing Order was not issued. The Respondent filed its

Motion for Summary Judgment regarding the Petition-

er’s suit to be placed back on its medical staff. The Trial

Court on May 2, 1978, entered a Partial Summary Judg-

ment denying the Petitioner’s prayer for injunctive relief

to be reinstated upon the medical staff and finally releas-

ing and discharging the Respondent from all claims by

the Petitioner to be readmitted to that staff. In the Par-

tial Summary Judgment, the Trial Court stated that the

3

Motion was being granted after considering the Motion

for Partial Summary Judgment, the pleadings and the

depositions on file (see Appendix A).

Subsequently, the Petitioner amended his pleadings

and dropped any claim for injunctive relief or to be read-

mitted to the staff of the Respondent hospital. This case

then went to trial solely on Petitioner’s claim for slander

against Respondent. At the close of Petitioner’s evidence

on his claim for slander, the Trial Court granted

Respondent’s Motion for Instructed Verdict and for ren-

dition of a take nothing judgment. The Trial Court ren-

dered a take nothing judgment in favor of Respondent on

August 24, 1981; that take nothing judgment recited the

fact of the rendition and entry of the earlier partial sum-

mary judgment.

Petitioner then appealed the take nothing judgment

awarded against him. As reflected by the Transcript

(Appendix C), the record in that appeal did not contain

the depositions on file at the time of the granting of the

Partial Summary Judgment, nor the Respondent’s

pleadings on file at the time of the granting of the Partial

Summary Judgment, nor the Motion for Partial Sum-

mary Judgment, incorporating Affidavits (see

Appendix C).

The Texas Court of Civil Appeals at Fort Worth

affirmed the partial summary judgment denying Peti-

tioner reinstatement to Respondent’s medical staff; in so

doing, the Texas Court of Civil Appeals at Fort Worth

held that Petitioner had abandoned his suit for reinstate-

ment to Respondent’s medical staff, because he had gone

to trial on amended pleadings which did not contain any

4

claim for injunctive relief or to be readmitted to

Respondent’s medical staff (see Appendix B).

The Supreme Court of Texas, without an opinion,

affirmed the Court of Appeals Judgment by refusing

Petitioner’s Application for Writ of Error, with the nota-

tion “No Reversible Error.”

ARGUMENT

Because the Petitioner has not complied with the

proper state procedural rules for taking an appeal, there

is no judgment from the highest court of Texas in which a

judgment could be rendered; hence, there is no basis for

this Court exercising jurisdiction over this case by writ

of certiorari. Alternatively, this Court should deny Peti-

tioner’s Writ for Certiorari because the Fourteenth

Amendment concepts of due process do not apply to pri-

vate hospitals in rescinding a doctor’s staff privileges.

A. Lack of a Judgment from the Highest State Court in

Which a Judgment Could Be Rendered, and

Independent State Ground for Upholding Decisions

Below.

When the Petitioner does not comply with the proper

state procedural rules for taking an appeal, the case he

brings to this Court “stands as though no appeal had

been prosecuted from the judgment rendered by the trial

court.” Newman v. Gates, 27 S.Ct. 220, 223, 204 U.S. 89,

95, 51 L.Ed. 385 (1907), and there exists no judgment

from the highest state court in which a judgment could

be rendered; thus, there is no basis for this Court to

entertain a Petition for Writ of Certiorari. Furthermore,

there exists an independent state ground, separate and

5

apart from any Federal question or issue, which would

uphold the judgment rendered below. See Ellis v.

Dixon, 75 8.Ct. 850, 349, U.S. 458, 99 L.Ed. 1231 (1955),

in which the state courts denied leave to appeal on the

ground that the pleadings were not a sufficient record to

adjudicate the constitutional issues involved.

In the case on which the Petitioner petitions the Court

to issue a Writ of Certiorari, the Petitioner has failed to

follow the proper procedural rules in two respects: (1) he

abandoned his Due Process claims for reinstatement to

Respondent’s medical staff by going to trial on amended

pleadings which did not affirmatively state that claim;

and (2) he failed to include in the record sent to the

appellate court the Motion for Partial Summary Judg-

ment which the Trial Court granted, and the pleadings,

depositions and affidavits which served as the basis for

the Trial Court’s ruling on that Motion.

1) Abandonment of Claim

After the Trial Court granted the Respondent’s Motion

for Partial Summary Judgment, the Petitioner amended

his pleadings on two occasions. Those amendments did

not carry forward or adopt the Petitioner’s claim for

injunctive relief to be readmitted to the staff of the

Respondent hospital.

As the Court of Civil Appeals held in its opinion, the

filing of the amended pleading superceded all of the Peti-

tioner’s prior pleadings. Vernon’s Ann. Rules of Civ.

Pro., rule 65; Gage v. Langford, 615 S.W.2d 934, 940

(Tex.Civ.App.-Tyler 1981, writ ref., n.r.e.). In Gage v.

Langford, supra, the plaintiff alleged a cause of action

6

under the Texas Deceptive Trade Practices Act. The

defendant filed special exceptions to that pleading which

were sustained by the trial court. Thereafter, the plain-

tiff filed amended pleadings deleting any mention of a

claim under the Texas Deceptive Trade Practices Act. On

appeal, the plaintiff claimed that the trial court commit-

ted error in sustaining the defendant’s special excep-

tions. The Court of Civil Appeals held that the plaintiff,

by filing the amended pleadings, had abandoned any

claim under the Texas Deceptive Trade Practices Act and

could not complain on appeal of the trial court’s rulings on

the special exceptions.

In the case at bar, the Petitioner abandoned his claims

for injunctive relief to be readmitted to the medical staff

of the Respondent hospital by removing any request for

such relief from his pleadings.

2) Failure to File Sufficient Transcript

By Summary Judgment, the Trial Court denied the

Petitioner’s requested injunctive relief to be returned to

the Respondent’s medical staff.

The Petitioner had the burden, in the appellate courts

of Texas, of presenting a record which shows that the

Trial Court’s Judgment, or the fact findings supporting

that Judgment, were erroneous in order to obtain a

reversal. Englander Company v. Kennedy, 428 S.W.2d

806, 807 (Tex. 1968). That record consists of the Tran-

script. Vernon’s Ann. Rules of Civ. Pro., rule 371. The

Trial Court’s Partial Summary Judgment stated that it

was based upon the pleadings, depositions and Motion

for Summary Judgment. That Motion incorporated Affi-

7

davits. Neither the Respondent’s pleadings at the time

the Summary Judgment was granted, nor the deposi-

tions on file, nor the Motion for Partial Summary Judg-

ment were brought forward by Petitioner to any appel-

late court (see Transcript Index, Appendix C). Without a

proper record, appellate courts could not say that the

Trial Court erred in granting the Respondent’s Partial

Summary Judgment. Ratcliff v. Bruce, 423 S.W.2d 614

(Tex.Civ.App.-Houston 1968, writ ref., n.r.e., cert.

denied 89 S.Ct. 134, 393 U.S. 848, 21 L.Ed.2d 118,

rehearing denied 89 S.Ct. 373, 292 U.S. 956, 21 L.Ed.2d

369); Kelley v. Kelley, 575 S.W.2d 612, 615

(Tex.Civ.App.-San Antonio 1978, writ ref., n.r.e.).

Where a partial record fails to disclose error, the review-

ing court would not presume that the omitted part of the

record showed error. Nagelson v. Fair Park National

Bank, 351 S.W.2d 925, 929 (Tex.Civ.App.-Dallas 1968,

writ ref. n.r.e.).

B. Lack of Merit to Petition for Writ of Certiorari

Fourteenth Amendment Concepts of Due Process

Do Not Apply to a Private Hospital in Recission of a

Doctor’s Staff Privileges

In regard to this issue, it has been held that an individ-

ual must have been deprived of his rights by “state

action” before he will be entitled to equal protection and

due process rights as guaranteed by the United States

Constitution. In order for this “state action” to exist, it

has been held that there must be “a sufficiently close

nexus between the State and the. . . [private defendant]

so that the actions of the latter may be fairly treated as

that of the State itself” Jackson v. Metropolitan Edison

8

Company, 419 U.S. 345, 351; 95 S.Ct. 449; 42 L.Ed. 477

(1974).

In one case in which a private hospital’s rules concern-

ing elective abortions was challenged as violative of the

Fourteenth Amendment, it was held that the County

which provided financial support to the hospital was not

sufficiently connected with the hospital’s activities “to

imbue those actions [of the hospital] with the attributes

of the State” Greco v. Orange Memorial Hospital, 513

F.2d 878, 882 (5th Cir. 1975). The hospital in Greco

received financial support both from the Federal and

County Governments, and was required by the County,

pursuant to the County’s lease of land to the hospital, to

admit indigents, to provide yearly financial reports to

the County Auditor, and to get County approval before

disposing of hospital property. Despite these involve-

ments with Governmental bodies, the Greco Court

stated “[T]here is no evidence that in acquiring Federal

Funds or in leasing the hospital facility the corporation

ever accepted a condition relating to the performance or

nonperformance of abortions.” Greco, supra, at 881.

It has been held that a doctor who was permanently

discharged without notice or a hearing from the staff of a

private non-profit hospital was not the victim of “state

action” under the Fourteenth Amendment. Madry v.

Sorel, 558 F.2d 303, 304 (5th Cir. 1977). The Court

reached this holding despite the fact that the hospital

was the recipient of publicly raised funds and Federal

Hill-Burton funds, because “the receipt of financial assis-

tance, in and of itself, is not a sufficient nexus to make

the acts of the hospital equal to the acts of the State.”

Madry, supra, at 305. Other Courts have also held that

9

the receipt of Hill-Burton Act Funds does not make the

private hospital’s acts the acts of the State. Modaber v.

Culpeper Memorial Hospital, Inc., 674 F.2d 1023 (4th

Cir. 1982); Cardio-Medical Associates v. Crozer-Chester

Medical Center, 50 L.W. 2568 (D.C.Pa. 3/15/82). Addi-

tionally, it was held in Modaber and Crozer-Chester that

the receipt by a private hospital of Medicaid and Medi-

care funds does not make that hospital’s actions the

actions of the State for the purposes of the Fourteenth

Amendment to the United States Constitution.

The only factual grounds which Petitioner asserts as

demanding that Due Process should apply to his removal

from Respondent’s medical staff is that Respondent has

received Hill-Burton Funds and Medicare. As was

decided in Madry, supra, this does not make Respond-

ent’s acts the acts of the State, and hence the Fourteenth

Amendment Due Process clause does not apply to Peti-

tioner’s removal from Respondent’s medical staff.

10

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

BROWN, HERMAN, SCOTT,

DEAN & MILES

203 Fort Worth Club Building

Fort Worth, Texas 76102

apis 2-1391 Metro 429-0851

py Mbye 2. dich

(John M. Scott

Texas Bar No. 17926000

Attorneys for Respondent,

All Saints Episcopal Hospital