Petition for Writ of Certiorari — Stern v. Tarrant County Hospital District

pict

Suprenie Court, U.S.

FILED

85-1362

¢ JOSEPY F. SPANIOL, OR.

CLERK

encom

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1985

PAUL A. STERN, ET AL,

Petitioners

VS.

TARRANT COUNTY HOSPITAL DISTRICT, ET AL,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

Or APPEALS FoR THE FIFTH CIRCUIT

PETITION FOR

WRIT OF CERTIORARI

KEVIN J. KEITH

JAMES A. WILLIAMS

Bailey and Williams

2150 One Dallas Centre

Dallas, Texas 75201

(214) 754-9300

February 11, 1986

QUESTIONS PRESENTED FOR REVIEW

1. Whether the equal protection clause forbids a state

agency from purposefully and arbitrarily discriminating

against one class of persons by denying staff privileges to

osteopathic physicians in preference to a similarly situated

class of persons.

2. Whether the Fourteenth Amendment prohibits a state

from denying to all persons within its jurisdiction equal protee-

tion of its laws resulting from the discriminatory administra-

tion of a state law by a state agency.

3. Whether the due process clause prohibits a state agency

from purposefully and arbitrarily depriving osteopaths of their

statutorily created property interest of being considered for

staff privileges based on professional and ethical merit and not

on the basis of their medical degree.

4. Whether the Fifth Circuit may ignore the “clearly errone-

cus” mandate of Rule 52a Fed. R. Civ. P. and disregard

findings of fact found by the district court and not challenged

on appeal.

5. Whether a rational basis for the actions of a state agency

ean “reasonably be conceived’ when those actions are in

violation of state law and intentionally discriminate against

one class of persons while favoring another.

6. Whether the conduct of a state agency, clearly acting in

violation of state law, is entitled to the same presumptive

validity afforded legislative enactments.

il

LIST OF THE PARTIES

Pursuant to Rule 21.1(b) the following is a list of all parties

to the proceeding in the Fifth Cireuit Court of Appeals:

Petitioners

a. Paul A. Stern, D.O.

b. C. Raymond Olson, D.O.

e. James Lee Walker, D.O.

d. Joel Alter, D.O.

e. William Russell Jenkins, D.O.

Respondents

f. Tarrant County Hospital District

John Peter Smith Hospital, Tarrant County, Texas

Harold B. Daley

i. Bruce K. Jacobson, M.D.

j. Robert L. McAfee

k. George H. Moore, M.D.

1. Harry A. Noah

m. Tim Philpot

n. James C. Pollard

o. Julius Truelson

p. George J. Luibel, D.O. — Defendant/ Appellee

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

ns eect ates se ececes ii

eee iil

Fe iv

Tee es ket cabs ans ccccsass 1

STATEMENT OF JURISDICTION ................ 2

CONSTITUTIONAL AND STATUTORY

oe Fg |) 2

yg 9) 4

REASONS FOR GRANTING THE WRIT.......... 10

EEE EE OST CTT TOT E TET 19

APPENDIX (Separately Bound) .................. 20

(a) Opinion of the Court of Appeals En Banc

(b) Judgment on Rehearing En Banc

(ec) Order Denying Reconsideration En Banc

(d) Fifth Cireuit Panel Opinion En Banc

(e) District Court Opinion (Including Findings

Of Fact)

CERTIFICATE OF SERVICE .................05. 21

iv

TABLE OF AUTHORITIES

Case

Bose Corp. v. Consumers Union of U.S., Inc.,

wastasiiie TO , 104 S.Ct. 1949,

L.Ed. 2d PE teh eed cls eae che es 6s

Hayman v. City of Galveston, 273 U.S. 414 (1927) ....

Jones v. Diamond, 636 F.2d 1364, n.7

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Monroe v. Pape, 363 U.S. 167 (1961) ................

United States v. New Orleans Public Serv., 723 F.2d

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YickWo v. Hopkins, 118 U.S. 356 (1886) ............

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Tex. Rev. Civ. Stat. art. 4495

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

PauL A. STERN, ET AL,

Petitioners

vs.

TARRANT COUNTY HOSPITAL DISTRICT, ET AL,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

Or APPEALS For THE FIFTH CIRCUIT

PETITION FOR

WRIT OF CERTIORARI

OPINIONS BELOW

The Petitioners Paul A. Stern, D.O., C. Raymond Olson,

D.O., James Lee Walker, D.O., Joel Alter, D.O. and William

Russell Jenkins, D.O. respectfully pray that a Writ of Certio-

rari issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Cireuit en banc entered in

this proceeding on December 18, 1985. The opinion and judg-

ment of the Fifth Cireuit Court of Appeals reversing the three-

judge panel and the judgment of the district court appears in

the Appendix hereto. The opinion rendered by the district

court for the Northern District of Texas, including its findings

of fact and conclusions of law is reported at 565 F.Supp. 1440.

See Appendix.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals for the Fifth Circuit

en banc was entered on December 18, 1985. A timely Petition

for Reconsideration En Banc was denied on January 14, 1986,

and this Petition for Certiorari was filed within 90 days of that

date. The jurisdiction of the United States Supreme Court is

invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. U. S. CONST. amend. XIV §1: All persons born or

naturalized in the United States, and subject to the jurisdic-

tion thereof, are citizens of the United States and of the State

wherein they reside. 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.

2. Mediesi Practice Act of Texas — Tex. Rev. Civ. Stat. art.

4495b, subchapter A §1.02(1), (9) (Vernon Supp. 1986):

See. 1.02. The Legislature makes the following declarations:

(1) The practice of medicine is a privilege and not a

natural right of individuals and as a matter of policy it is

considered necessary to protect the public interest through

the specific formulation of this Act to regulate the granting

of that privilege and its subsequent use and control;

(9) Recognizing that hospitals, facilities, institutions, or

programs and state agencies and political subdivisions which

own or operate hospitals, facilities, or institutions or admin-

ister programs are responsible for determining medical staff

appointments or the qualifications of physicians for such

programs, and further recognizing that all persons licensed

under this Act have met certain basic educational require-

ments, been examined by the board, and passed the same

qualifying examination which applies the same standards to

all who desire to practice medicine, irrespective of academic

medical degree, it is the intent of the legislature to prohibit

differentiation solely on the basis of the academic medical

degree held by a person licensed under this Act in determin-

ing such medical staff appointments or such qualifications.

To this end a hospital, institution, or program that is li-

censed by this state, that is operated by the state or a

political subdivision of the state, or that receives state

financial assistance, directly or indirectly, shall not differen-

tiate solely on the basis of the academic medical degree held

by a person licensed under this Act. Such hospitals, institu-

tions, programs, and state agencies or political subdivision

shall, however, be free to adopt reasonable rules, regulations,

and requirements relating to qualifications for medical staff

appointments, reappointments, termination of appointments,

the delineation of clinical privileges, or the curtailment of

clinical privileges of those who are appointed to such medical

staff or permitted to participate in educational programs so

long as such rules, regulations, and requirements are deter-

mined upon a reasonable basis, such as professional and

ethical qualifications of the physician, upon standards that

are reasonable, applied untainted by irrelevant considera-

tions, supported by sufficient evidence, free of arbitrariness,

capriciousness, or unreasonableness and do not differentiate

solely upon the academic medical degree held by such

physician.

3. FED. R. Civ. P. 52(a): Findings of fact, whether based on

oral or documentary evidence shall not be set aside unless

clearly erroneous, and due regard shall be given to the opportu-

nity of the trial court to judge of the credibility of the

witnesses.

STATEMENT OF THE CASE

Petitioners’ Background. This dispute arose because the

Board of Managers of the Tarrant County Hospital District

refused to grant privileges to any of the Petitioners solely on

the basis of their osteopathic medical degree. Each physician

applied separately for staff privileges at John Peter Smith

Hospital in 1979. Petitioner Olson applied for staff privileges

in 1970 and again in April, 1979. (S.F. 52-53) All of the

Petitioners are physicians duly licensed by the Texas Board of

Medical Examiners and have successfully completed two or

more years of post-graduate training in a program accredited

by the American Osteopathic Association (hereinafter

“AOA”). All allopathic physicians (M.D.) and osteopathic

physicians (D.O.) are required to pass the same licensure

exam and meet other statutory requirements monitored by the

Texas Board of Medical Examiners.

John Petes Smith Hospital. Respondent John Peter Smith

Hospital is a public, tax supported hospital owned and oper-

ated by the Respondent Tarrant County Hospital District, a

political subdivision of the State of Texas. The hospital is

managed by the Board of Managers which board is composed

of the individually named Respondents. Respondent hospital is

a public general hospital primarily responsible for treatment of

indigent patients of Tarrant County, Texas. (S.F. 286) John

Peter Smith Hospital is the only publie hospital in Tarrant

County, Texas.

Hospital Staff Privileges Requirements. As late as February,

1979 the medical/dental staff bylaws of Respondent hospital

specifically required that a physician needed to have an M.D.

degree and post-graduate training which limited staff member-

ship to only physicians holding M.D. degrees. (S.F. 253-54; Tr.

203) On February 28, 1979 the hospital’s Board of Managers

amended its bylaws to abandon the specific requirement of an

M.D. degree, but then provided as minimum requirements for

all applicants to have two years of post-graduate training in a

program accredited by the Liaison Committee on Graduate

Medical Education (LCGME) and licensure by the State of

Texas. At that time, an exception to these minimum require-

ments existed if the applicant was recommended to the staff by

a head of a department and approved by the Staff Executive

Committee.

However, Petitioner Stern applied for staff privileges pursu-

ant to this stated exception upon the recommendation of the

head of the Department of Anesthesiology and approval of the

Staff Executive Committee. Upon presentation of those recom-

mendations to the Board of Managers a decision was made that

specific guidelines for exceptions to the minimum requirements

should be promulgated and made a part of the bylaws. Ulti-

mately, staff privileges were denied Petitioner Stern by the

Board of Managers. All other Petitioners’ request for privi-

leges were subsequently denied at every level of consideration.

The hospital’s bylaws were then changed to delete the “excep-

tional cases” exception to the minimum requirements for staff

privileges leaving the LCGME post-graduate training as a

mandatory requirement without exceptions.

The bylaw requirement that the post-graduate training must

be approved by the LCGME (now known as the Accreditation

Counsel for Graduate Medical Education — ACGME) effec-

tively excludes Petitioners and substantially all of the osteo-

pathic physicians who reside in and pay taxes in Tarrant

County, Texas from the staff of Respondent hospital. (Tr. 205)

At trial, the Medical Director of Respondent hospital admitted

that a considerable effort and numerous changes in the bylaws

have been made for the purpose of keeping John Peter Smith

Hospital an allopathic (M.D.) hospital. (S.F. 403-04, 423,

430-31; Tr. 207) Furthermore, the nature of the changes over

the years to the hospital's bylaws and the statements of its

Medical Director established that the LCGME post-graduate

training requirement was intended to discriminate against

osteopathic physicians and had no other contemplated purpose.

(S.F. 403-05, 423, 430-31)

Medical Practice Act of Texas. The Texas Medical Practice

Act of 1981 recognizes that “. . . all persons licensed under this

Act have met certain basic educational requirements, been

examined by the Board, and passed the same qualifying exami-

nation which applies the same standards to all who desire to

practice medicine, irrespective of academic medical degree...”

Tex. Rev. Civ. Stat. art. 4590b subchapter A, sec. 1.02(9)

(Vernon Supp. 1986). Among the “basic educational require-

ments” the Board of Medical Examiners requires graduation

from “an approved medical school” and completion of a one-

year program of graduate medical training. The “approved

medical schools” and approved graduate medical training are

described as those accredited by either the LCGME or the

AOA. Title 22 Examining Boards, Part 9. Texas State Board of

Medical Examiners, Chapter 163, Licensure by Examination,

see. 163.1(a), 163.2, 165.4, Licensure Qualifications for All

Applicants, Vol. 6, No. 81, Oct. 27, 1981.

The Texas Legislature has expressly prohibited hospital

staff membership requirements at public hospitals from being

based upon the medical degree held by the physicians and

further recognized the quality of both allopathic and osteo-

pathic accrediting agencies. The Medical Practice Act of Texas

expressly states that “... it is the intent of the Legislature to

prohibit differentiation solely on the basis of the academic

medical degree held by a person licensed under this Act in

determining such medical staff appointments or such qualifica-

tions” and that the granting of staff privileges must be deter-

mined “... upon a reasonable basis, such as professional and

ethical qualifications of the physician, upon standards that are

reasonable, applied untainted by irrelevent considerations,

supported by sufficient evidence, free of arbitrariness, capri-

ciousness, or unreasonableness .. ..”’ Tex. Rev. Civ. Stat. art.

4595b, subchapter A. sec. 1.02(9) (Vernon Supp. 1986).

Proceedings in Courts Below. Petitioners filed this action

against the Tarrant County Hospital District, John Peter

Smith Hospital and the individual members of its Board of

Managers. At trial, Petitioners did not seek monetary dam-

ages, but simply sought to enjoin the discriminatory practices

which continued to deny consideration of their staff privileges

solely on the basis that their post-graduate training program

had not been accredited by the LCGME. (Tr. 44-53) Federal

court jurisdiction was invoked under the provisions of 42

U.S.C., 1983, the Fifth Amendment to the Constitution of the

United States and the Fourteenth Amendment to the Constitu-

tion of the United States.

A trial to the court was commenced on June 21, 1982. After

receiving testimony, documentary evidence and briefing from

the parties the trial court submitted an extensive memorandum

opinion and order and entered judgment dated June 4, 1983.

The district court judgment enjoined the Respondents from

denying staff privileges at John Peter Smith Hospital by use of

a bylaw requirement that the applicant’s post-graduate train-

ing be accredited by the LCGME. (Tr. 179-210) An amended

judgment and supplemental memorandum opinion dated Au-

gust 19, 1983 was entered by the district court to clarify that

the Petitioners would need to satisfy all other bylaw require-

ments for staff privileges if they had not already met those

qualifications. (Tr. 222-26)

In support of its judgment the district court rendered

numerous findings of fact pursuant to Rule 52(a) Fed. R. Civ.

P. None of the district court’s findings of fact were challenged

on appeal by Respondents as “clearly erroneous” in order to

have them set aside. The most significant of those district court

findings of fact relevant to the questions presented for review

are as follows:

UNCHALLENGED FINDINGS OF FACT

11. Until recently osteopathic physicians were unable to

obtain training in programs approved by the Liaison Com-

mittee on Graduate Medical Education. Today they are able

to do so in various governmental programs and certain other

specialized programs. (TR. 205)

12. The 1981 session of the Texas Legislature enacted a

Medical Practice Act which prohibited hospital staff mem-

bership requirements at public hospitals being based upon

the medical degree held by the physician and the State

Board of Medical Examiners promulgated its rules recogniz-

ing the equality of both allopathic and osteopathic accredit-

ing agencies. (TR. 205)

13. The requirement that the post-doctoral training of a

member of the Medical/Dental Staff of John Peter Smith

Hospital be approved by the Liaison Committee on Graduate

Medical Education, now known as the Accreditation Council

for Graduate Medical Education, effectively excludes sub-

stantially all of the osteopathic physicians who reside in and

pay taxes in Tarrant County from the Medical/Dental Staff

of John Peter Smith Hospital and totally excludes all osteo-

pathic physicians whose post-graduate medical training oc-

curred prior to 1970. (TR. 305)

14. All post-graduate medical training in osteopathic in-

stitutions, in order to be accredited, must be approved by the

American Osteopathic Association. The Liaison Committee

on Graduate Medical Education, now known as Accredita-

tion Council for Graduate Medical Education, accredits

programs in institutions aligned with allopathic medicine

only. The two accrediting programs are substantially the

same and contains no significant differences. (TR. 205)

15. All physicians in Texas who are licensed to practice

_ general medicine have been licensed by the State Board of

Medical Examiners whether they are osteopathic physicians

(D.O.) or allopathic physicians (M.D.) and all physicians

licensed to practice medicine in Texas, either osteopathic

(D.O.) or allopathie (M.D.), are required to take and pass

the same examination for licensure. The State Board of

Medical Examiners is composed of both allopathic (M.D.)

and osteopathic (D.O.) physicians (TR. 206)

18. The philosophical differences between allopathic

medicine and osteopathic medicine are not sufficient to

justify a differentiation between the two schools of medicine

for purposes of medical staff privileges at a publicly owned

and operated hospital. (TR. 207)

19. The requirement that post-doctoral training for staff

membership be accredited by the Liaison Committee on

Graduate Medical Education (now known as the Accredita-

tion Council for Graduate Medical Education) is an arbi-

trary and false standard and is not a standard based upon a

reasonable requirement and is primarily for the purpose of

basing staff membership upon the holding of a academic

medical degree of Doctor of Medicine as opposed of Osteopa-

thy. (TR. 207)

20. The requirement that the post-doctoral training of staff

members be approved by the Liaison Committee on Gradu-

ate Medical Education is not a requirement which has as

foundation a reasonable basis such as professional and

ethical qualifications or the common good of the public or the

hospital itself. (TR. 207)

The district court concluded that there was no rational basis

for the public hospital to treat allopaths and osteopaths differ-

ently in consideration of their applications for staff privileges.

Accordingly, the court enjoined the hospital’s discriminatory

bylaw as a violation of the equal protection clause of the

Fourteenth Amendment.

10

The judgment of the distriet court was initially affirmed by

the Fifth Cireuit Court of Appeals three judge panel and a

majority opinion was authored by Judge Rubin. A concurring

opinion authored by Chief Judge Clark endorsed the majority

opinion and alternatively observed that the hospital’s bylaw

was a violation of the due process clause of the Fourteenth

Amendment. Judge Goldberg dissented.

Subsequently, the Fifth Cireuit Court of Appeals entered

judgment on rehearing en banc reversing the judgment of the

district court on the premise that the hospital acted rationally

in pursuit of a legitimate state purpose. The en banc court

reached this conclusion in spite of the fact that the actions of

the hospital’s Board of Managers was a purposeful and inten-

tional violation of the Medical Practice Act of Texas and that

Respondents had failed to challenge any of the findings of fact

underlying the district court’s “rational basis” analysis. In a

sharply worded opinion assailing the reasoning and conclu-

sions of the majority, five judges respectfully dissented. Peti-

tioners timely filed this Petition for Writ of Certiorari seeking

review of these significant constitutional issues.

REASONS FOR GRANTING THE WRIT

A. The Decision Of The Fifth Circuit En Banc Raises Signifi-

cant Issues Regarding Application Of The Fourteenth

Amendment To Prohibit Purposeful Discrimination By

State Agencies Which Deny One Class Of Persons The

Equal Protection Of A State Law.

The Fifth Cireuit’s opinion in this case raises serious ques-

tions regarding the viability of the equal protection and due

process clauses of the Fourteenth Amendment to prohibit the

purposeful and intentional discrimination against persons in-

tended to be protected by provisions of a state law. The

importance of and error in the majority opinion’s equal protec-

11

tion analysis is succinctly identified in the opening remarks of

the dissenting opinion:

“The majority opinion refuses to prevent a state agency from

discriminating against osteopathic physicians in favor of

allopathie physicians in defiance of state law. In so doing, it

disregards both the plain language of the Fourteenth

Amendment and the historic reasons for its enactment, for

the equal protection clause forbids, and was intended to

forbid, a state to purposefully and arbitrarily deny te one

class of persons the protection of a state law that it affords

to another class of persons.” (Dissenting Opinion, p. 1633)

The unchallenged findings of fact taken together with the

legislative enactment of the Texas Medical Practice Act of

1981 established without question that Respondents purpose-

fully violated the constitutional rights of the Petitioners.

The overriding purpose of the equal protection clause of the

Fourteenth Amendment is to protect persons from discrimina-

tory and unequal state action both through the enactment of

discriminatory laws and the discriminatory enforcement of

laws. Regardless of the method used the discriminatory effect

on the persen or class of persons is the same. A state agency,

as in this case, that purposefully treats one class of persons

(allopathic physicians) differently than a similarly situated

class of persons (osteopathic physicians) in the face of 2 state

law that requires equal treatment violates the equal protection

guarantee. Yick Wo v. Hopkins, 118 U.S. 356 (1886). The equal

protection clause was enacted and intended to assure that the

states afford to all persons within their jurisdiction the equal

protection of their own laws. Monroe v. Pape, 363 U.S. 167, 180

(1961). The purpose of the equal protection clause was to

forbid not only the enactment of discriminatory laws, but also

to protect against the discriminatory administration or en-

forcement of laws neutral on their face.

12

The “exceptional importance” of the equal protection issues

presented here is strongly indicated by the Fifth Cireuit’s en

banc review under Rule 35(a) F.R.A.P. and by the sharply

divided opinions of the majority and dissenting judges. While

the majority opinion agrees that Texas law requires doctors

holding M.D. and D.O. degrees to be treated alike in applying

to a public hospitai for staff privileges and acknowledges that

the Respondents purposefully violated that law, the court

refuses to consider the discriminatory' administration of the

state law a denial of equal protection. The long standing and

purposeful discriminatory design and effect of favoring one

class of persons over another in direct violation of state law is

a clear and egregious denial of constitutional equal protection

rights.

Additionally, the majority opinion is based on the premise

that the Respondents acted rationally in pursuit of a legitimate

state purpose. In reaching this conclusion the court disre-

garded the district court’s findings of fact to the contrary and,

instead, made presumptions that a “conceivable basis” for the

agency's discriminatory action may exist. In other words, in its

equal protection analysis the majority opinion afforded a state

agency, shown to be intentionally discriminating against a

class of persons in open violation of a state law, the same

deference and presumption of validity extended to legislative

enactments. Arguably, the court would extend the same pre-

sumption of validity to the decisions of every state agency,

however petty or limited in its jurisdiction and discriminatory

in its administration of state law. According to the majority

opinion the Federal Court of Appeals equal protection analysis

is restricted to evaluating the state agency’s post-hoc sugges-

tion of a “conceivable basis” that might have been in the

agency's mind, even though the unchallenged findings of fact

establish that it was not. Subordinate agencies have never been

accorded such deference to their determinations validated on

the basis of fictional rationalizations especially under the

13

discriminatory facts established by the evidence at bar. Bose

Corp. v. Consumers Union of U.S., Inc., U.S., , 104

S.Ct. 1949, L.Ed. 2d (1984); United States v.

New Orleans Public Serv., 723 F.2d 422, 428-29 (5th Cir. 1984);

Jones v. Diamond, 636 F.2d 1364, 1370, n.7 (5th Cir. 1981).

B. This Case Presents Constitutional Questions Whose Reso-

lution Will Have Immediate Importance Far Beyond The

Particular Facts And Parties Involved.

As recognized in the dissenting opinion, the majority opinion

refuses to apply the literal mandate of the constitution and

ignores the history that lead to enactment of the Fourteenth

Amendment. At first glance, the majority opinion “condones

the bigotry of an allopathic-dominated state hospital district”

and denies the Petitioners any opportunity to obtain staff

privileges at the public hospital. An inability to obtain staff

privileges has, of course, significant economie effect on the

ability of the Petitioners to practice medicine in Tarrant

County, Texas. However, the decision of the court below also

has certain actual and practical consequences for other liti-

gants and in numerous other factual and legal situations.

First, the majority opinion not only affects the five osteo-

pathie physicians who petition this Court for writ, but it also

affects all osteopathic physicians who now or in the future will

seek to practice medicine in Tarrant County, Texas and sur-

rounding areas. Respondent John Peter Smith Hospital is the

only public hospital in Tarrant County, Texas and acquisition

of staff privileges there is an important asset to a physician’s

practice. It is important to note here that the district court did

not order Respondents to grant privileges to the Petitioners,

but simply enjoined Respondents from denying staff privileges

solely on the basis of the Petitioners’ osteopathic training.

Petitioners simply are seeking the state created right pro-

tected by the equal protection clause to have their application

14

for staff privileges considered on reasonable grounds such as

professional and ethical merit.

Secondly, the majority opinion encourages statewide dis-

crimination against the nearly 1,390 osteopathic physicians

practicing in the state of Texas. Rendering of the en banc

decision, widely publicized in state newspapers and throughout

the medical profession undoubtedly notified all public and tax

supported hospitals that they may administer the provisions of

the Texas Medical Practices Act to discriminate against osteo-

pathic physicians.

An additional important consideration is that the inverse of

the present circumstances can easily occur. In other words, if

in the future osteopathic physicians arrest decision making

control over staff privileges at John Peter Smith Hospital or at

other public hospitals in Texas, then under the majority opin-

ion all allopathic (M.D.) trained physicians could be denied

staff privileges in the discriminatory manner accomplished

here. The public interest is harmed in either event. Moreover,

the inherent professional prejudice existing between osteo-

pathie and allopathic physicians is not peculiar to the geo-

graphical boundaries of the state of Texas, but exists and will

continue to produce litigation throughout the nation unless the

equal protection rights of both groups are clearly confirmed by

the Supreme Court.

The equal protection analysis and potentially devastating

effect of the majority decision is not limited to only state

agencies meting out staff privileges at public hospitals. To the

contrary, the principles adopted by the court’s equal protection

analysis encourages other state agencies to purposefully deny

equal protection of a state’s laws to its citizens in every context

imaginable. The reasoning of the court, if allowed to stand,

would permit state agencies to purposefully discriminate

against a class of persons, in direct violation of a state law non-

15

discriminatory on its face, as long as the state agency can

manufacture a “conceivable basis” for its unlawful conduct.

Perhaps more importantly than the rights of the Petitioners

and those potential litigants similarly situated, is the effect of

the court’s decision on the citizens of Tarrant County, Texas.

The decision of the court denies all indigent patients of

Tarrant County, Texas from the opportunity to receive care

from an osteopathic physician of their choosing. In this regard,

indigent patients who must receive their care at John Peter

Smith Hospital are denied the opportunity of selecting an

osteopathic physician enjoyed by non-indigent patients. How-

ever, non-indigent patients who, due to geographical considera-

tions, prefer to be hospitalized at John Peter Smith Hospital,

also may not receive the services of the osteopathic physician

of their choice due to his inability to obtain staff privileges.

Again, these arbitrary and unnecessary restrictions on the

rights of patients to select between osteopathic and allopathic

eare would involve patients hospitalized at public hospitals

throughout the state of Texas. All of these untoward conse-

quences violate the Texas Legisiature’s primary purpose of

creating and maintaining through public funding public hospi-

tals to serve the needs of the citizens of Texas. It is in

furtherance and protection of the general public interest in

good medical care that the Texas Medical Practice Act was

enacted.

In conclusion, it is inevitable that the circumstances which

gave rise to this litigation will continually reoceur not only in

the context of osteopaths seeking staff privileges throughout

the United States, but also in all related instances in which

state agencies choose to (and may now be encouraged to)

administer state laws in a manner to purposefully discriminate

against a particular class of persons.

iia i

16

C. The Fifth Circuit’s Refusal To Accept The Findings Of

Fact Is A Departure From Accepted And Usual Judicial

Proceedings Requiring Exercise Of The Supreme Court's

Power Of Supervision.

Whether there is a rational basis for treating differently two

classes of persons must turn on the facts distinguishing these

classes as shown by the evidence. In reliance upon the belief

that justice for the Petitioners would be contingent upon

establishing through competent evidence all relevant facts,

Petitioners carried their burden of proof in the district court.

As required by Rule 52(a) Fed. R. Civ. P. the district court

specifically stated extensive findings of fact supporting its

decision that a rational basis did not exist to justify denial of

the Petitioners’ application for staff privileges on the basis of

their osteopathic training.

On appeal, the majority opinion en banc, though recognizing

the accuracy of the lower court’s findings of fact, completely

disregarded tho<e findings and, instead, based its judgment on

speculative presumptions unsupported by the evidence. The

consistent application of the Federal Rules of Procedure and

reliability upon the guidelines for federal appellate review is

directly called into question by this unprecedented disregard

of Rule 52(a).

Rule 52(a) Fed. R. Civ. P. mandates that facts found by the

district court are to be accepted on appeal unless proven to be

“elearly erroneous.” Respondents (Appellants in the court

below) asserted no challenge to the accuracy of the district

court’s findings of fact which conclusively established that no

rational basis existed for treating allopathic and osteopathic

physicians differently on application for staff privileges.

Further, the majority opinion attempts to rely on dicta

appearing in this Court’s half a century old decision of

Hayman v. City of Galveston, 273 U.S. 414 (1927). The context

of the Hayman decision was one of reviewing the district court

17

judgment on a motion directed to the pleadings which dis-

missed the case for want of equity. Hayman, 273 U.S. at 416.

As the legal profession has evolved to the point that such a

procedural event could no longer occur in Texas, so has the

medical profession changed undercutting the factual basis for

the Hayman decision.

In Hayman, the Supreme Court noted that there were “nu-

merous systems or methods of treating diseases authorized to

practice in Texas” and that in the management of a hospital, a

choice among those methods of treatment would be inevitable.

Hayman, 273 U.S. at 417. Under those circumstances the court

felt that the choice by the board to exclude osteopaths was

found to have a “basis in the exercise of the judgment of the

state board’ which was neither unreasonable nor arbitrary.

Hayman, 273 U.S. at 417.

However, on the basis of the evidence presented to the

district court in the case at bar and the changed circumstances

demonstrated from those which existed more than 50 years

ago, the district court felt compelled to examine the exclusion

of osteopaths from a public hospital in light of contemporary

principles of equal protection and current state law. In the case

at bar, the evidence showed that the obvious differences which

once distinguished osteopathic physicians (D.O.’s) from allo-

pathie physicians (M.D.’s) have virtually disappeared in that

there are no material or significant differences between the

medicine practiced by the two groups. (S.F. 34-38, 51-52, 59,

84-88, 138-39, 141-42, 149-52, 174; Tr. 205)

Additionally, since the Hayman decision the Texas Legisla-

ture determined and has mandated equal treatment between

osteopathic and allopathic physicians at public hospitals de-

claring, among other things that “state agencies or political

subdivisions shall not differentiate solely on the basis of the

academic medical degree held by a person licensed under this

act.” Moreover, graduates of allopathic and osteopathic institu-

18

tions are now required to pass the same licensure examination

after graduating from institutions approved by the Texas

Board of Medical Examiners.

Consequently, the district court was not only permitted to

review the equal protection claims of the Petitioners in light of

the current statutory law and in the current context of the

medical profession, but it was compelled to do this by the well

recognized standards of judicial review and equal protection

analysis. Failure of the district court to consider these sub-

stantial changes in state law and within the medical profession

would have been irresponsible and contrary to the interest of

justice. Furthermore, the evidence adduced at trial and not

challenged on appeal established beyond any doubt that the

distinction drawn by the allopathic controlled Board of Manag-

ers between M.D.’s and D.O.’s was arbitrary, not founded upon

a reasonable basis and, in fact, not founded upon any recogniz-

able distinction in the way that the two groups are accredited

and practice medicine. (S.F. 34-38, 51-52, 59, 84-88, 118, 141-

42, 149-52, 174, 403-04, 423, 430-31)

19

CONCLUSION

For the above and foregoing reasons, a Writ of Certiorari is

respectfully requested to be issued to review the en banc

judgment and opinion of the Fifth Cireuit.

Respectfully submitted,

BAILEY AND WILLIAMS

By Kon) Ko BE.

KEVIN J. KEITH

JAMES A. WILLIAMS

2150 One Dallas Centre

Dallas, Texas 75201-4924

(214) 754-9300

Attorneys for Petitioners

20

APPENDIX

I. Opinion of the Court of Appeals en banc

II. Judgment on Rehearing en banc

Ill. Order denying reconsideration en banc

IV. Fifth Cireuit Panel opinion (withdrawn)

V. District Court opinion (including findings of fact)

(SEPARATELY BOUND)

21

CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of February, 1986,

three copies of the Petition for Writ of Certiorari and sepa-

rately bound Appendix were mailed, postage prepaid, to Mr.

Fred M. Schattman, 200 W. Belknap Street, Fort Worth, Texas

76196-0201, counsel for the Respondents. I further certify that

all parties required to be served have been served with a copy

of this petition.

Kevin J. Keith