Appendix — Yashon v. Hunt

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dOSEPH F. SPANIOL, JR,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

DAVID YASHON, M.D.,

Petitioner,

Ve

WILLIAM E. HUNT, M.D., et al.,

Respondents.

APPENDIX TO PETITION FOR A WRIT

OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Rudolph Janata

Charles C. Warner

Thomas A. Young*

Porter, Wright,

Morris & Arthur

41 South High Street

Columbus, Ohio 43215

(614) 227-2000

Counsel for Petitioner

*Counsel of Record

No. 85-4027

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID YASHON, M.D., )

ET AL., ) ON APPEAL from

Plaintiffs- ) the United

Appellants. ) States District

) Court for the

7. ) Southern

) District of

WILLIAM E. HUNT, ) Ohio.

K.D., Be Bless )

Defendants- )

Appellees. )

Decided and Filed August 3, 1987

Before: KENNEDY and MILBURN,

Circuit Judges; and CONTIE, Senior

Circuit Judge.

CONTIE, Senior Circuit Judge.

Plaintiff David Yashon, M.D., appeals ©

from the order of the district court

granting judgment in favor of the

defendants and dismissing his’ action

brought under 42 U.S.C. §1983 to compel

his reinstatement to the attending

medical staff at the Ohio State

University Hospitals in Columbus,

Ohio. The district court's order

reentered a prior order of the court in

which it had found that the defendants

afforded plaintiff due process when

they rejected his application for

reappointment to the attending medical

staff. On appeal, plaintiff claims

that the Medical Staff Administrative

Commi ttes (MSAC) violated principles of

administrative res judicata when, in

rejecting his application, it

considered charges which had been the

subject of prior disciplinary

proceedings. Plaintiff also argues

that the administrative hearing held to

consider his application did not

comport with procedural due _ process.

Plaintiff asserts six specific

he

on) care

procedural due process violations: (1)

denial of the right to present

witnesses and additional documentary

evidence; (2) failure by the MSAC to

render a written decision explaining

its reasons for rejecting plaintiff's

application; (3) lack of written

standards governing consideration of

plaintiff's application; (4)

insufficient written notice of the

charges asserted at the hearing; (5)

denial of any prehearing Giscovery; and

(6) denial of the assistance of counsel

at the hearing. Plaintiff lastly

contends that the MSAC's decision

violated his substantive due _ process

rights. For the reasons which follow,

we affirm the judgment of the district

court.

This case, which is now before the

court for the third time, has a lengthy

factual and procedural history which we

review here to facilitate a complete

understanding of the present appeal.

Plaintiff is a duly-licensed

neurological surgeon and tenured

professor of neurosurgery at the Ohio

State University College of Medicine.

Pursuant to University Hospitals

bylaws, only University faculty members

may be appointed to the attending

medical staff of University Hospitals.

Staff members are appointed for

one-year terms and must file an

application for reappointment at the

end of each term. Pursuant to this

procedure, plaintiff was continuously

on the attending medical staff from

September, 1969 through June 30, 1981.

Prior to June, 1981, plaintiff

submitted his application for

reappointment to Dr. Larry Carey,

Chairman of the Department of Surgery,

but Dr. Carey did not submit’ the

application to the MSAC for

consideration. Consequently, Dr. Carey

prevented renewal of plaintiff's staff

privileges. This was the most recent

of several disciplinary actions or

investigations initiated against

plaintiff.

The first such action involved a

Getenurization proceeding based on the

allegation that plaintiff engaged in

“gross misconduct" by using another

faculty member's name in a grant

application without that faculty

member's permission. Dr. Henry

Cramblett, then Dean of the College of

Medicine, reversed the charge,

observing that plaintiff's conduct was

“serious” but did not alone warrant

detenurization, especially since

plaintiff had subsequently notified the

National Institute of Health to

withdraw the other faculty member's

name from the grant application.

The second action was an attempt to

remove plaintiff from the attending

medical staff based on charges raised

by Dr. Carey in late 1979. An

Investigation Committee reviewed the

charges and, finding them to be

substantial and the cause of obvious

Gisruption, recommended further

review. A Grievance Committee

subsequently reviewed the charges and

issued a report finding no basis for

charges of incompetency, no evidence of

disruptiveness caused by plaintiff, and

unfair harassment by Dr. Carey. The

Grievance Committee recommended that

plaintiff be restored to his full

medical staff privileges. The

Grievance Committee's report was

reviewed by Dr. Manuel Tzagournis, then

Associate Dean of the College of

Medicine. When Dr. Tzagournis asked

the Grievance Committee to provide him

with information explaining the basis

for its conclusions, the Grievance

Committee declined to do _ so. De.

Tzagournis ultimately concluded that

plaintiff's past conduct was disruptive

and justified a “strong reprimand" but

did not warrant curtailment of medical

staff privileges. After plaintiff

appeaied the reprimand to an Executive

Committee, Dr. Tzagournis told him that

the Committee could confirm, reject, or

modify his decision to issue a

reprimand. Plaintiff eventually

abandoned his appeal.

The third prior action was

initiated against plaintiff by Dr.

Hunt, then Chief of Neurological

Surgery Service. A four-physician

committee found that plaintiff engaged

in improper conduct when he removed a

note written by Or. Hunt from a

patient's chart. The committee did not

believe, however, that it was in a

position to render a decision as to any

illegality of plaintiff's conduct.

The fourth prior action was taken

by Dr. Carey, who suspended plaintiff's

admission and operating room privileges

in May of 1980 because of the

"Brumfield" incident. It was alleged

that plaintiff failed to properly

respond to a resident's request that he

come to the hospital to attend to a

patient. Plaintiff's privileges were

reinstated in July of 1980 pursuant to

a decision of the Executive Committee.

Most of the charges involved in

these prior disciplinary actions were

relied upon by Dr. Carey as grounds for

withholding plaintiff's application for

reappointment to the medical staff.

On July 15, 1981, plaintiff filed

the instant action against Dr. Carey,

the individual members of the MSAC, and

other University physicians and

officials.1 (Footnotes appear at the

end of the text.) Plaintiff sought to

compel his reinstatement to the

attending medical staff and to enjoin

further disciplinary actions against

him.

On July 17, 1981, the district

court entered a consent order whereby

the parties agreed that plaintiff would

retain his medical staff privileges

until plaintiff's request for

injunctive relief was resolved. That

same day, the court conferred with

counsel for both parties and the

parties ultimately agreed to submit

plaintiff's application for

reappointment to the MSAC for

disposition in the same manner as other

applications. The district court

suggested that Dr. Carey and plaintiff

each make a presentation to the MSAC

concerning Dr. Carey's reasons for not

recommending plaintiff's vesenetaieeh

to the medical staff, but the court did

not suggest or order that the MSAC

conduct a “due process" hearing. The

court told the parties that no counsel

were to be present at the hearing.

Plaintiff subsequently received two

written notices of the hearing by

letters from Dr. Tzagournis and Dr.

Michael Whitcomb, chairman of the

MSAC. Accompanying Dr. Whitcomb's

letter was a copy of the letter Dr.

Carey had written Dr. Tzagournis,

listing the specific charges against

plaintiff. Plaintiff also spoke with

Drs. Tzagournis and Whitcomb by

telephone prior to the hearing, and

they both explained that they had no

knowledge of any witnesses who might be

called by Dr. Carey.

The MSAC hearing was held on

September 1, 1981, with Dr. Whitcomb

making the following opening statement:

Our purpose here this morning

is to review Dr. Yashon's

application or request’ for

reappointment to the medical

OBGEEe « 2 « I would like to

point out, this is not a

court of law. We have no

absolute set guidelines in

terms of the proceedings

which we are compelled to

follow, but our format will

be such that I will ask [Dr.

Carey] if he chooses and [Dr.

Yashon] if he chooses to make

some initial comments...

and then for [Dr. Carey] to

present specific reasons why

he chose not to recommend

[Dr. Yashon] to the staff

and, as we go through the

process, to allow [Dr.

Yashon] to respond to those

point by point.

Dr. Carey then gave his opening

statements, explaining that he was

going to present witnesses and evidence

showing why plaintiff was an

“undesirable member of this’ hospital

staff." Dr. Carey also stressed:

I am in no position now, nor

have I been in the past, to

evaluate Dr. Yashon's

competence as a neurosurgeon

[bJut I believe I am in

a position and have the

responsibility of determining

whether or not an individual

in the Department of Surgery

is competent to practice in

this institution. That says

little specifically about his

competence as a physician.

It says something about his

propriety as a member of the

staff of a teaching hospital.

Plaintiff then made his opening

statements, asserting that his work had

been most satisfactory until Drs. Carey

and Hunt began causing him problems in

executing his duties. Plaintiff also

raised several objections to the

hearing's format, including the lack of

notice of Dr. Carey's intention to call

witnesses. Plaintiff stated:

I have asked Dr. Whitcomb and

Dr. Tzagournis ... [aJre

there going to be any

witnesses? No witnesses.

Now I find out there are

going to be witnesses. I

don't know what's going on.

I will have to face them, but

I am not prepared. ... I

object to that.

Although plaintiff objected to the

presentation of witnesses by Dr. Carey,

he did not ask for an opportunity to

present his own witnesses. Plaintiff

also objected that most of the grounds

being relied upon by Dr. Carey had

previously been found meritless by the

Grievance Committee, that he had not

been given an adequate opportunity to

prepare responses to the grounds not

previously addressed by the Grievance

Committee, and that as ae tenured

faculty member he could only be removed

from the attending medical staff by a

detenurization proceeding.

Dr. Carey ultimately presented

thirteen witnesses at the hearing.

Plaintiff was afforded the opportunity

to cross-examine each of them, and

members of the MSAC were permitted to

ask questions as well. One of the

witnesses was Dr. Warren Leimbach, who

stated that he received three

complaints from residents about

SNS AN A TI A EM AEN TELS LORELEI A EEC

plaintiff's coverage of the residency

program. Specifically, one first-year

resident told him that she had _ to

perform an operation without

plaintiff's presence and that the

operation had less than satisfactory

results. Plaintiff responded to this

testimony by asserting that the

resident never performed an operation

without him being present. Karen

Nedelka, who was the head nurse in the

neurosurgical intensive care unit, also

testified. She related two specific

incidents of plaintiff's failure to

properly respond to patient treatment

Situations, one of which involved the

care of a Mrs. Brumfield. Dr. Rees

Freeman then testified and discussed

the circumstances of the Brumfield case

in more detail, explaining how

plaintiff failed to properly respond to

the Situation after being called

several times. Dr. Freeman was a

resident at the time. Dr. Freeman also

described plaintiff's failure to

respond to the other emergency

Situation described by Nedelka. Dr.

Freeman and several other’ residents

testified that they were uncomfortable

with ~- plaintiff's performance as a

teacher and his practice of

neurosurgery. Finally, various

witnesses discussed the prior

Gisciplinary actions initiated against

plaintiff — the grounds for those

actions.

At the close of the hearing,

members of the MSAC voted thirteen to

four to reject plaintiff's application

for reappointment. The MSAC did not,

however, render any written decision

detailing its findings.

On September 18, 1981, the

defendants moved the district court to

vacate the consent order providing for

plaintiff's continued membership on the

attending medical staff pending the

MSAC hearing and disposition. The

defendants also requested the court to

enter summary judgment in their favor,

urging that the MSAC hearing afforded

plaintiff all the process he was due.

In an extensive opinion filed on

February 26, 1982, the district court

vacated its prior consent order. and

granted the defendants’ motion for

summary judgment, finding no due

process violations arising from the

MSAC hearing. The court also rejected

plaintiff's claim that principles of

administrative res judicata attached to

the prior disciplinary proceedings

instituted against him and precluded

the MSAC from relying on the_-= same

charges raised in those prior

proceedings.

Plaintiff then pursued his first

appeal to this court. On appeal, we

declined to reach the merits’ of

plaintiff's procedural due process

arguments, holding instead that the

Gistrict court erred by failing to

address the threshold inquiry of

whether plaintiff had a protected

property or liberty interest in his

position on the attending medical

staff. Yashon v. Hunt, 696 F.2d 468

(6th Cir. 1983). Noting that the

requirements of procedural due process

apply only to constitutionally

protected interests, this court

concluded that a remand was necessary

to allow the district court to make a

— 2

determination on the protected interest

question. Id. at 470.

On remand, plaintiff requested

discovery because the protected

interest issue had not been addressed

by either party. The district court

denied this request, determining that

the issue could be resolved on the

basis of the original record. The

court ultimately found that plaintiff

had no protected property or liberty

interest in his position on the

attending medical staff, and again

granted summary judgment in favor of

the defendants.

Plaintiff again brought an appeal

to this court and we again vacated the

judgment of the district court and

remanded for further consideration.

Yashon v. Gregory, 737 F.2d 547 (6th

Cir. 1984). We stated two grounds for

the decision to remand: (1) the

Gistrict court improperly entered

summary judgment sua sponte without

giving plaintiff appropriate notice or

the oppertunity to respond, id. at

552-53; and (2) the district court

erred in denying plaintiff's request

for discovery because there were

Gisputed issues of material fact which

were subject to discovery. Id. at

553-56.

On remand for the second time, the

parties stipulated that plaintiff had a

constitutionally protected property

interest in his membership on_- the

attending medical staff. Accordingly,

the district court issued an opinion

and order on November 6, 1985, finding

that plaintiff had a protected property

interest in continued staff

privileges. Since plaintiff had such a

- 20 -

protected interest, the court observed

that plaintiff was “entitled to a due

process hearing in connection with the

decision on his annual reappointment to

the medical staff.”

On November 18, 1985, the district

court resolved the due process issues.

The court decided, and counsel agreed,

that it should reenter its original

decision denying plaintiff's claims.

In accordance with that prior decision;

the court again entered judgment in

favor of the defendants, from which

plaintiff now appeals. Accordingly,

the instant appeal focuses on the

district court's 1982 decision

upholding the propriety of the MSAC

hearing and the MSAC's decision to

reject plaintiff's application for

reappointment to the attending medica

staff.

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Plaintiff first argues that

principles of administrative res

judicata precluded the MSAC from

considering charges which had already

been raised in prior disciplinary

proceedings. As the district court

acknowledged in its decision, most of

the charges alleged by Dr. Carey in the

proceedings before the MSAC had also

been asserted in the previous

Gisciplinary actions initiated against

plaintiff. The four prior separate

proceedings taken against plaintiff

resulted in: (1) a “strong reprimand"

but no removal from the medical staff;

(2) a finding of improper conduct; (3)

dismissal of a detenurization

complaint; and (4) reinstatement of

operating privileges which had _ been

suspended. Plaintiff contends that

principles of res judicata attached to

these prior proceedings and therefore

barred reconsideration of the charges

on which the proceedings were based.

Plaintiff primarily relies on United

States v. Utah Construction & Mining

Co., 384 U.S. 394, 422 (1966), which

stated that “[w]hen an administrative

agency is acting in a judicial capacity

and resolves disputed issues of fact

properly before it which the parties

have had an adequate opportunity to

litigate, the courts have not hesitated

to apply res judicata. ..." Although

Utah Construction and other cases cited

by plaintiff addressed the preclusive

effect of administrative proceedings on

subsequent judicial actions, and the

instant case presents the slightly

different question of whether

subsequent administrative proceedings

are barred by prior administrative

proceedings, plaintiff nevertheless

urges that the principles are equally

applicable here because each of the

previous administrative actions fully

addressed the merits of the charges and

fully exonerated -him of those charges.

We are unpersuaded that the MSAC

was precluded from considering the

charges which had been reviewed in the

other disciplinary proceedings.

Determinations made in administrative

proceedings will generally be given

preclusive effect only if the parties

had a full and fair opportunity to

litigate the matters involved, see Utah

Construction, 384 U.S. at 422; City of

Pompano Beach Vv. Federal Aviation

Auth., 774 F.2d 1529, 1538-39 n. 10

(llth Cir. 1985), and if the

proceedings culminated in a definitive

resolution of the matters. Neither of

these requirements are satisfied in

this case. None of the former

proceedings reached a point whereby the

parties were given a full opportunity

to litigate the charges brought against

plaintiff. In each instance, the

administrative processes stopped short

of the type of formal hearing which was

held before the MSAC, and to which

principles of res judicata could

attach. Furthermore, several of the

former proceedings did not definitively

resolve the charges asserted against

plaintiff in that he was not completely

exonerated of improper conduct.

Accordingly, we agree with the district

court that the previous administrative

proceedings should not be given

preclusive res judicata effect and that

the MSAC therefore was not barred from

considering the charges raised in those

proceedings.

Itl.

Plaintiff asserts that six specific

procedural due process violations arose

out of the MSAC hearing. Our review of

these due process arguments is governed

by several general principles. "The

fundamental requirement of due process

is the opportunity to be heard ‘at a

meaningful time and in a meaningful

manner. Mathews Vv. Eldridge, 424

U.S. 319, 333 (1976) (quoting Armstrong

v. Manzo, 380 U.S. 545, 552 (1965)).

However, the overall concept of due

process of law is a flexible one, and

therefore the type of procedural

protections required in a particular

Situation depends largely upon the

circumstances of that Situation.

Morrissey v. Brewer, 408 U.S. 471, 481

(1972). In determining when a

particular procedure is required, three

factors should generally be considered:

First, the private interest

that will be affected by the

official action; second, the

risk of an erroneous

deprivation of such interest

through the procedures’ used,

and the probable value, if

any, of additional or

substitute procedural

safeguards; and finally, the

Government's interest,

including the function

involved and the fiscal and

administrative burdens that

the additional or substitute

procedural requirement would

entail.

Mathews, 424 U.S. at 335.

It is obvious in the instant case

that plaintiff and University Hospitals

each had important interests at stake

— . =

in the MSAC hearing. Plaintiff had a

Significant interest in being

reappointed to the attending medical

staff in order to maintain his

professional reputation and his

income. On the other hand, it was

important to University Hospitals to

retain only competent and highly

compatible physicians on its medical

staff. Hospitals have an important

“interest in quickly dealing with

incompetence and debilitating personal

frictions," in order to ensure

“[e]ffective performance by physicians

on the staff .. . whose tasks require

a high degree of cooperation,

concentration, creativity, and the

constant exercise of professivunal

judgment.” r n Vv. WwW worth

V rans H » 537 F.2d 361, 368 (9th

Cir. 1976).

= =

We must weigh these valid interests

of each of the parties in considering

the sufficiency of the process afforded

plaintiff gat the MSAC_ hearing. In

doing so, however, we must also bear in

mind that the scope of our review is

fairly narrow. A federal court's

review of Gisciplinary actions taken

against a physician by a hospital is

generally limited to determining

whether the procedures used violated

any federal rights and whether’ the

administrative body was presented with

substantial evidence to support its

ultimate action. Lew v. Kona Hosp.,

754 F.2G 1420, 1425 (Sth Cir. 1985);

Woodbury v. McKinnon, 447 F.2d 839, 846

(Sta Cir. 1971). It is simply not our

function to review the merits of the

charges against a physician, Kona

Hospital, 754 F.2d at 1425, and we will

generally afford great deference to

“the decision of a hospital's governing

body concerning the granting of

hospital privileges.” Laje v. R. E.

Thomason Gen. Hosp,, 564 F.2d 1159,

1162 (5th Cir. 1977), cert. denied, 437

U.8. 905 (1978). Mindful of these

general principles, we turn to the

specific procedural due process

arguments raised by plaintiff.

A. Right to Call Witnesses

Plaintiff first argues’ that the

Gefendants violated his procedural due

process rights by denying him the right

to present witnesses and additional

documentary evidence on his own

behalf. Plaintiff contends that there

is a well-established constitutional

right to call witnesses in proceedings

before an administrative factfinder.

For this proposition, plaintiff relies

on two Sixth Circuit cases which did

not involve the issue of a physician's

medical staff privileges, Carter v,

Western Reserve Psychiatric

Habilitation Center, 767 F.2d 270, 273

(6th Cit. 1985) (discharged civil

servant permitted to call witnesses at

post-termination Loudermill hearing see

Cleveland Bd, of Educ. v. Loudermill,

470 U.S. 532 (1985)), and NLRB vy.

Prettyman, 117 F.2d 786, 790 (6th Cir.

1941) (in hearing under National Labor

Relations Act, employer may produce

evidence and witnesses to refute unfair

labor practice charges).

We have found no decisions holding

that a physician is constitutionally

entitled to call witnesses in a

proceeding to determine whether’ the

physician should be granted staff

privileges. Some cases have approved

proceedings where no witnesses were

called, see, e.9., Woodbury, 447 F.2d

at 844, while other cases have approved

procedures allowing a physician to call

witnesses, see, @.9., Duffield v,

Charleston Area Medical Center, Inc.,

503 F.2d 512, 519 (4th Cir. 1974).

Even in the latter instance, however,

it was not held that the ability to

call witnesses was constitutionally

mandated. Still other cases have

Simply held that a physician has the

right to rebut the evidence against him

and cross-examine adverse witnesses.

See, e.g., Christhilf _v. Annapolis

Emergency Hosp. Ass*n., Inc., 496 F.2d

174, 178-79 (4th Cir. 1974).

We conclude that no procedural due

process violation occurred when the

MSAC rendered its decision without

hearing from any witnesses testifying

on plaintiff's behalf. Several factors

are influential in reaching this

conclusion.

First, plaintiff mischaracterizes

the situation when he claims that the

defencants refused to allow him the

right to call witnesses, since he never

requested permission to call his own

witnesses. At the outset of the MSAC

hearing, plaintiff objected to the

presentation of witnesses by Dr. Carey

but he did not ask to present his own

witnesses nor did he seek a continuance

for the purpose of obtaining

witnesses. Instead, he agreed to

proceed with the hearing and respond to

the witnesses called by Dr. Carey.

Plaintiff therefore did not claim

befcre the MSAC that he was entitled to

call witnesses on his own behalf.

Accordingly, there was no outright

refusal by the defendants to allow

plaintiff to call his own witnesses.

For us to find a procedural due process

violation under these circumstances, we

would have to hold that plaintiff was

constitutionally entitled as a matter

of law to be given the opportunity to

call his own witnesses. We believe

that adoption of such a constitutional

requirement is unwarranted,

particularly since due process of law

is a flexible concept which requires

different procedural protections

depending on the situation. Morrissey

-v. Brewer, 408 U.S. at 481.

Second, plaintiff has never shown

what additional evidence or testimony

he could have presented at the hearing

had he been given the opportunity to do

— ° oa

so. The district court below observed

that plaintirf had not, either at the

hearing or in his filings with the

district court, “proffered the name of

any witness he would have called.” In

the absence of any such proffer, we

have no basis’ for concluding that

plaintiff was prejudiced by not having

any witnesses testify on his behalf.

Third, we are satisfied that the

essential requirement of procedural due

process was satisfied here; that is,

plaintiff was afforded a meaningful

opportunity to be heard. Throughout

the hearing, plaintiff had the means to

rebut the evidence presented against

him, as he was permitted to thoroughly

cross-examine the witnesses called by

Dr. Carey and to make statements on his

own behalf in response to the

witnesses’ testimony.

Finally, with respect to

plaintiff's complaint that he was

denied the opportunity to present

documentary evidence, the record

establishes that he in fact submitted

documents at the hearing and that he

read extensively from those documents

during the hearing. Furthermore,

plaintiff did not proffer any

additional relevant evidence to the

district court which he was prevented

f rom presenting at the hearing.

Accordingly, plaintiff again has not

shown how he was prejudiced.

In sum, we are unpersuaded that the

interests of the parties in this case,

as analyzed under Mathews v. Eldridge,

are such that plaintiff was entitled to

the additional procedural due process

_safeguards of presenting witnesses or

additional evidence on his own behalf.

— =

B. Lack of Written Decision

Plaintiff's second procedural due

process claim focuses on the lack of

any formal, written decision by the

MSAC. Plaintiff contends that’ the

-MSAC's failure to render ae written

decision setting forth its findings and

reasoning violates due process because

it prevents effective review of the

decision and the grounds’ supporting

it. Plaintiff refers the court to the

due process concerns addressed by the

Supreme Court in Wolff v. McDonnell,

418 U.S. 539 (1974). In Wolff, the

Court held that in prison disciplinary

decisions “there must be a ‘written

statement by the factfinders as to the

evidence relied on and reasons’ for the

disciplinary action.” Id, at 564

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get

(quoting Morrissey v, Brewer, 408 U.S.

at 489). Requiring written records of

disciplinary proceedings helps to

“insure that administrators, faced with

possible scrutiny a ee will act

fairly.” Ia, at 565. Without such

written records, inmates would be at a

disadvantage when attempting to

propound their own cause or defend

themselves. Id. This Circuit has also

observed that the failure to issue a

written decision in a prison

Gisciplinary proceeding inhibits

effective appellate review of that

decision. Franklin v, Aycock, 795 F.2d

1253, 1256 (6th Cir. 1986).

Plaintiff cites to no case

authority for the proposition that an

informal hospital decision-making body

must issue a written decision

explaining its findings and rationale

for denying a physician attending staff

privileges, and we decline to adopt

such a rule under these circumstances.

The primary concern of the requirement

of a written decision is to provide a

sufficient record for a reviewing body

to verify that the decision was founded

on proper grounds. In the instant

case, it was the district court's duty

to determine whether the MSAC based its

decision “only [on] those matters which

are reasonably related to the operation

of the hospital.” Vv B f

Managers of the Val V morial

Hosp., 437 F.2d 173, 176-77 (Sth Cir.

1971). The district court observed

that although its tanndee would have

been easier had there been a written

decision, the absence of a written

decision did not preclude effective

review because there was a complete

transcript of the MSAC_ proceedings.

The court was therefore able to

thoroughly examine the written record

and conclude as follows:

{I]n view of the Court's

extensive review of the

administrative record and its

determination that there was

sufficient evidence to

Support many of Dr. Carey's

charges, a number of which

were not even challenged, the

Court cannot find that Dr.

Yashon was unfairly

prejudiced ... by... the

committee's failure to render

a written, decision as_ to

which charges were

meritorious.

Our review of the hearing transcript

likewise reveals that the MSAC relied

on appropriate considerations in

rendering its decision. We accordingly

agree with the district court's

analysis and hold that the MSAC's

failure to issue a written decision did

not violate plaintiff's due process

rights.

C. Absence of Governing Standards

Plaintiff next argues that

procedural due process required the

adoption of express standards governing

the denial of an application for

reappointment to the medical staff. No

such established standards existed when

the MSAC rendered its decision.

According to plaintiff, this absence of

governing standards violated his due

process rights because it gave the MSAC

unfettered and arbitrary discretion to

deny his application for any reason.

We disagree. The pertinent

question is whether the evidence relied

on by the MSAC was reasonably related

to the operation of a hospital and its

- 4] —

attending medical staff. So long as it

is based on such proper grounds, the

decision to deny a physician's

application for reappointment is within

the discretion of the MSAC. As we held

above, we are satisfied that the MSAC

based its decision on appropriate

considerations. Accordingly, the lack

of established standards does not

render the MSAC's decision arbitrary

and therefore violative of due

process. We are not persuaded

otherwise by the cases relied upon by

plaintiff since they involve decisions

of government agencies and the settled

requirement that they be made within

established guidelines. See, e.g.,

Whi v hton, 530 F.2d 750, 754

(7th Cir. 1976) (administrator of

welfare program must establish written

- 42 -

a) ; ; Ley et eeu in tat ae

S _ 7 hl 4 vw ' a ae na, és r

= —— * ‘ j : ye re wale 8 eed eS

es Se ee ay IER) ee ape ae

2 n ¥ =< ret — =. i

standards governing eligibility for

welfare assistance).

D. Adequacy of Written Notice

Plaintiff also argues that he

received inadequate notice of the

charges which would be brought against

him at the hearing. He claims that the

notice of charges contained in Dr.

Carey's letter to Dr. Tzagournis, a

copy of which plaintiff received from

Dr. Whitcomb, was not’ sufficiently

specific to enable him to prepare his

defense. In support of his argument,

plaintiff relies on a district court

decision which held that a physician

who had his hospital staff privileges

terminated was entitled to "a detailed,

written statement of the grounds upon

which non-renewal of his staff

~ 2 om

membership was being considered,

specifying the cases in which his

professional performance was

challenged, and stating in reasonable

fullness the nature of the criticism in

each case.” k Vv j n

Hosp., 362 F.Supp. 1196, 1211 (W.D.

Wis. 1973), aff'd on other grounds, 499

F.2d 1364 (7th Cir. 1974).

This argument is without merit.

Notice in this type of informal setting

need only be specific enough to enable

the individual to respond to the

charges raised against him; it need not

rise to the level of specificity

required of a criminal indictment.

See, Woodbury, 447 F.2d at 844. The

written notice of charges contained in

Dr. Carey's letter gave plaintiff

sufficient notice under this standard.

Furthermore, plaintiff has

acknowledged, and the district court

found, that he was already familiar

with all but one of the’ charges

asserted by Dr. Carey, since they were

the subject - of prior proceedings.

Written notice of specific charges is

not required where past events or

Giscussion have provided a physician

with notice of the charges’ against

him. Ong v. Tovey, 552 F.2d 305, 308

(9th Cir. 1977). Accordingly, we find

no procedural due process’~ violation

arising from the notice afforded

plaintiff.

E. Entitlement to Pre-Hearing Discovery

Plaintiff argues that he was

entitled to pre-hearing discovery,

which he was denied in violation of his

procedural due process rights. While

a 2a a

some courts have permitted limited

forms of discovery in Similar

Situations, see Christhilf, 496 F.2d at

180 (physician or his counsel given

opportunity on remand to “inspect or

copy all documents in the hospital's

possession bearing on each charge"),

there is no constitutional right to

pre-hearing discovery under these

circumstances. The primary concern is

to ensure that plaintiff had an

adequate opportunity to prepare or

develop his defense to the charges

leveled against him. In light of

plaintiff's familiarity with the

charges, the ongoing nature of the

controversy between he and the

defendants, and plaintiff's

responsiveness to the matters raised at

the hearing, we are satisfied that this

concern was met. See Klinge Vv.

« @6 «

Lutheran Charities Ass'n., 523 F.2d 56,

63 (8th Cir. 1975).

F. Assistance of Counsel

The last specific procedural due

process argument asserted by plaintiff

is that he had the right to be

represented by counsel at the MSAC

hearing. Although plaintiff

acknowledges that there is no

constitutional right to the presence of

counsel at all administrative hearings,

he contends that the absence of counsel

in this case increased the “risk of an

erroneous deprivation of [his]

interest." Mathews v. Eldridge, 424

U.S. at 335. Plaintiff therefore

concludes that the assistance of

counsel was required to meet notions of

fairness. He also again relies on the

» 49 «

statements made by this court in Carter

Vv. Western Reserve Psychiatric

Habilitation Center, 767 F.2d 270, 273

(6th Cir. 1985) (in post-termination

Loudermill type hearings, discharged

civil servants have the right "to have

the assistance of counsel"). Plaintiff

urges this court to extend the right to

counsel to proceedings held to evaluate

a physician's application for

membership on a hospital's attending

medical staff.

This we decline to do. This

Circuit has already held that an

individual is not entitled to the

assistance of counsel in informal

university administrative proceedings.

See Crook v. Baker, 813 F.2d 88, 99

(6th Cir. 1987); Frumkin v, Kent State

Univ., 626 F.2d 19, 21 (6th Cir.

1980). Furthermore, the parties here

» £8 =

had originally agreed in their

proceedings before the district court

that no counsel would be present at the

hearing. Finally, we believe the

district court properly concluded that

plaintiff was not prejudiced by the

absence of counsel. The district court

reasoned:

Where, as here, the- record

Shows that Dr. Yashon fully

participated at the hearing,

that he was conversant with

all of the charges made by

Dr. Carey, and that he was

competent at cross-

examination, the Court

concludes that it is unlikely

that the presence and

participation of counsel on

Dr. Yashon's behalf would

have provided a procedure

less likely to have resulted

in erroneous findings of fact.

This analysis is persuasive and

illustrates that the lack of counsel

under these circumstances did not

increase the “risk of an erroneous

a 2 «

deprivation of [plaintiff's]

interest.” Mathews, 424 U.S. at 335.

Thus, due process did not require that

plaintiff be assisted or represented by

counsel at the hearing. Cf. Goldberg

v. Kelly, 397 U.S. 254, 270-71 (1970)

(welfare recipients entitled to a

hearing before termination of their

benefits and, if they have counsel, are

entitled to have counsel cross-examine

witnesses at the hearing).

G. Other Procedural Due Process

Concerns

Apart from the specific procedures

which plaintiff believes were essential

to comply with due process, there are

other general aspects’) of the MSAC —

hearing which plaintiff contends

rendered the hearing fundamentally

unfair and therefore violative of due

ae

process. Plaintiff complains that the

format of the hearing exceeded’ the

district court's suggestion to the

parties that Dr. Carey and the

plaintiff each make oral presentations

of their cases. In plaintiff's

opinion, the MSAC ignored this

“directive” of the district court by

permitting Dr. Carey to call thirteen

witnesses. Plaintiff also raises a

form of conflict of interest or unfair

bias argument, arguing that Dr. Carey

and the members of the MSAC had mutual

interests even though they had assumed

the separate roles of prosecutor and

neutral arbiter, respectively. As an

indicia of their mutual interests,

plaintiff cites to the fact that the

same legal counsel represents Dr. Carey

and the MSAC members in this and other

actions. Plaintiff believes that the

| a

close relationship between Dr. Carey

and the MSAC members’ tainted the

propriety of the MSAC hearing under the

general. principle that the roles of

judge and prosecutor should not be

intertwined. See In re Murchison, 349

U.S. 133 (1955).

These arguments, and other related

arguments raised by plaintiff, do not

convince us that the proceedings were

fundamentally unfair. The defendants

did not improperly exceed any

“directive” of the district court

because the court issued no order or

mandate; it merely made general format

Suggestions to the parties which were

essentially followed. There was also

no improper mixing of the roles of

prosecutor and judge. Dr. Carey did

not participate either in the

deliberations Or in the ultimate

~ Se

decision of the MSAC. Thus, the

principles of Murchison were not

violated. Cf. Hoberman v. Lock Haven

Hosp., 377 F.Supp. 1178, 1186 (M.D. Pa.

1974) (due process violated where

physician who filed charges and

presented evidence against another

physician also participated in the

deliberations and decision on_~ the

charges). A person is entitled, as a

general principle of due process, to

have his cause heard before an

impartial and neutral tribunal.

Marshall v. Jerrico, Inc., 446 U.S.

238, 242 (1980). Since we are

satisfied that the defendants’ took

appropriate steps to ensure “the

appearance and reality of fairness at

the MSAC hearing,” id., we conclude

that this general principle was not

violated. As succinctly stated by the

» 2

district court, “on this record, the

court cannot conclude that the

procedural irregularities raised by Dr.

Yashon rendered the hearing and its

accompanying procedural protections

fundamentally unfair."

IV.

Plaintiff lastly argues that the

MSAC's decision to reject his

application for reappointment to the

medical staff violated substantive due

process. Toc withstand substantive due

process scrutiny, a hospital's decision

to deny staff privileges "must be

untainted by irrelevant considerations

and supported by substantial evidence

to free it from arbitrariness,

Capriciousness, Or unreasonableness.”"

Woodbury, 447 F.2d at 842. Although

plaintiff argues that the issue of his

disruptiveness Or unprofessional

behavior was not reasonably related to

the operation of University Hospitals,

we have already recognized that a

physician's unprofessional conduct,

incompatibility and lack of cooperation

on a hospital staff are appropriate

considerations for denying staff

privileges. Stretten, 537 ¥.20 at

368. Because the evidence presented to

the MSAC tended to show that plaintiff

was disruptive, that he was not

compatible with other staff members,

and that he had engaged in certain

unprofessional improprieties, we are

Satisfied that there is’ substantial

relevant evidence supporting the MSAC's

decision to deny plaintiff's

application for reappointment to the

medical staff. We therefore hold that

plaintiff's substantive due process

rights were not violated.

Accordingly, for the reasons’ set

forth above, the judgment of the

Gistrict court is AFFIRMED.

- 2 «

NOTE

Plaintiff was originally joined in

this action by Dr. Thomas Hawk, but

Dr. Hawk is not a party to the

present appeal.

Of course, the requirements’) of

procedural due process apply only

where protected property or liberty

interests are deprived. Board of

Regents v. Roth, 408 U.S. 564, 569

(1972). Pursuant to the parties'

stipulation, the district court

below entered an order finding that

plaintiff had a protected property

interest in his membership on the

attending medical staff. The

defendants have not appealed that

finding. Accordingly, it is not

disputed that the requirements of

procedural due process apply with

respect to the MSAC hearing.

ao. a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID YASHON, M.D., et al,

Plaintiffs

vs. ~ C-2-81-867

WILLIAM E. HUNT, M.D., et al,

Defendants

OPINION AND ORDER

(Filed February 26, 1982)

This action, which was instituted

by David Yashon, M.D. and Thomas Hawk,

M.D., seeks declaratory and injunctive

relief to compel defendants to

reinstate both plaintiffs to the

attending medical staff at The Ohio

State University Hospitals. On the

same day the verified complaint in this

- 58 -

action was filed, plaintiffs filed a

motion for a temporary’ restraining

order to require the defendants’ to

reinstate both plaintiffs immediately

to the attending medical staff. On

July 17, 1981, a consent order was

filed, pursuant to which the Court

ordered that, in order. to

preserve the status quo until

the Court renders a decision

upon the plaintiffs' request

for a preliminary injunction,

or until said request is

otherwise resolved, Dr. David

Yashon and Dr. Thomas Hawk

are granted the same rights

and privileges which they

each had at The Ohio State

University Hospitals as_ of

June 30, 1981.

On September 1, 1981, the Medical

Staff Administrative Committee of

University Hospitals conducted a

hearing with respect to Dr. Yashon's

application for reappointment to the

attending medical staff; at the

= we

conclusion of the hearing, the

committee voted to reject Dr. Yashon's

application for reappointment. The

defendants, contending that the

September 1, 1981 hearing afforded Dr.

Yashon all the due process to which he

was entitled, have now filed a motion

to vacate the consent order and for

summary judgment.

This matter is now before the Court

on the defendants’ motion to vacate the

consent order insofar as it ordered

that Dr. Yashon be granted the same

rights and privileges which he held as

a member of the attending medical staff

at University Hospitals as of June 30,

1981. Also before the Court is

defendants’ motion for summary judgment

with respect to the claims of Dr.

Yashon.

o 66 a

The legal questions that require

the Court's immediate attention can

only be understood by presenting the

background to the present controversy

between the plaintiff, Dr. David

Yashon, and the defendants. Apart from

this action, there are two other civil

actions now pending before the Court in

which Dr. Yashon alleges that his two

immediate superiors at The Ohio State

University have repeatedly violated his

constitutional rights. Accordingly, as

a prelude to a discussion and

resolution of the immediate issue of

whether the defendants have

unconstitutionally failed to reappoint

Dr. Yashon to the attending medical

staff at The Ohio State University

Hospitals, the Court will review the

|.

allegations and claims for relief

posited by Dr. Yashon in the three

actions now pending before the Court.

i, Yashon I

On January 31, 1978, Dr. Yashon

filed a civil rights action; David

Yashon v. William E. Hunt, C-2-78-66

[hereinafter Yashon I]. The defendant,

Dr. Hunt, was employed by The Ohio

State University as professor and

Director of the Division of Neurologic

Surgery within the Department of

Surgery, and as Director of the

Training Program in Neurologic Surgery

and as Chief of the Neurological

Surgery Service at The Ohio State

University Hospitals {hereinafter

University Hospitals].

=—°

Dr. Yashon alleged in the complaint

that he had entered into a contract

with The Ohio State University,

effective July 1, 1974, pursuant to

which he was appointed as a Professor

in the Department of Surgery.

(Footnotes appear at the end of the

text.) Dr. Yashon further alleged that

he was a member of the = attending

medical staff at University Hospitals

and that his membership was governed by

the constitution, bylaws, rules and

regulations of the medical staff of

University Hospitals. (Complaint,

WW4, 8.)

With reference to the defendant,

Dr. Yashon alleged that he had “been

subjected by Defendant to a deliberate

and continuing program of harassment,

interference and non-cooperation in his

performance of the said Contracts and

— - ae

Attending Staff Membership Oe ae ee

Complaint, 412. This harassment,

allegedly undertaken by the defendant

through his positions with the

university, included, inter alia, the

following forms: the defendant

interfered with the performance by Dr.

Yashon = of his duties toward his

patients; the defendant interfered with

Dr. Yashon's efforts to conduct

research; the defendant interfered with

Dr. Yashon's teaching responsibilities

by giving him a twenty-five percent

teaching load in 1976 and no teaching

assignments in 1977; the defendant has

interfered with Dr. Yashon's

publication of research articles; the

defendant assigned Dr. Yashon

unnecessary research projects and

studies; the defendant blackballed Dr.

Yashon's nomination for membership in a

national society of neurological

surgeons; the defendant verbally

berated Dr. Yashon by means of

inaccurate accusations of misfeasance

or malfeasance in the presence of third

parties; the defendant assaulted Dr.

Yashon; and the defendant has made

numerous inaccurate oral and written

criticisms of Dr. Yashon's performance

under his contracts with the university

to Dr. Yashon himself, as well as to

Dr. Yashon's colleagues and superiors.

(Complaint, 913(a) - (d), (g) - (j)-)

Based on these allegations, Dr.

Yashon stated six claims for relief

that, he prayed, justified an award of

$800,000 in compensatory damages’ and

$500,000 in punitive damages.2 These

claims were:

— |

FIRST: That defendant's

tortious harassment of Dr.

Yashon has'~ rendered it more

difficult for Dr. Yashon to

perform under his’~ contracts

with the university, and that

defendant intends -by such

harassment to prevent Dr.

Yashon entirely from

performing his duties’ under

said contracts;

SECOND: That, since July,

1975, defendant has tortiously

engaged in 4 pattern of

extreme and outrageous conduct;

THIRD: That the defendant,

through his on-going acts of

harassment, has jeopardized

Dr. Yashon's professional and

Career prospects, impaired his

liberty to practice his

profession, impaired his

rights to make, enforce, and

perform contracts, including

his contracts with the

university, and violated his

rights to procedural due

process;

FOURTH: That the defendant,

in an interoffice

communication of April 21,

1977 » knowingly and

maliciously made false and

defamatory statements about

Dr. Yashon;

FIFTH: That the defendant, at

a April 21, 1977 faculty

meeting, knowingly and

.

» 67 -

otis

maliciously made false

statements about Dr. Yashon;

and

SIXTH: That the defendant, in

a March 21, 1977 letter to the

Chairman of the Department of

Surgery, knowingly and

maliciously made false

statements about Dr. Yashon.

The above claims allegedly resulted in

injury to Dr. Yashon's7 professional

reputation, in lost professional fees,

and in mental distress, anguish,

embarrassment, and humiliation.

The defendant, Dr. Hunt, filed an

answer on April 3, 1978 in which he

denied all of the substantive

allegations of wrongdoing.

Approximately one year later, on

February 9, 1979, Dr. Yashon filed a

motion for a preliminary injunction in

which he asked that the Court compel

Dr. Hunt (1) to reinstate him as a

teacher of residents in the Division of

Neurologic Surgery in the same manner

and to the same degree as other tenured

professors in the division and (2) to

restore to Dr. Yashon the assistance of

residents for all purposes of teaching

and patient care in the same manner and

to the same degree as other tenured

professors in the division. The basis

for Dr. Yashon's motion was Dr. Hunt's

allegedly unconstitutional conduct in

unilaterally notifying Dr. Yashon, in a

letter dated December 21, 1978, of his

decision to eliminate Dr. Yashon's

teaching responsibilities and the

— 2

assistance provided Dr. Yashon by

residents.

The Court noticed the parties that

an evidentiary hearing on Dr. Yashon's

motion would be held on February 27,

1979. In lieu of the hearing, the

following order was entered on

February 27:

By agreement of the parties,

and with the approval of the

Court, it is hereby ORDERED

that the assignment of this

cause for an evidentiary

hearing on plaintiff's motion

for a preliminary injunction

on February 27, 1979, is

vacated pending the further

order of the Court; that the

parties will pursue

alternative means of

resolving the matters raised

by said motion and will

report back to the Court

whether such means have been

successful or unsuccessful;

that, until further order of

the Court or pursuant to the

Stipulation of the parties

entered into this date, the

operation and effect of

Gefendant William E. Hunt's

letter of December 21, 1978,

to plaintiff David Yashon

The

shall be stayed and plaintiff

restored to the resident

teaching program in

neurological surgery; and

that the pursuit of such

means of resolution shall not

be considered a waiver by

either party of any claims,

defenses, rights or

privileges which he may have,

except as and to the extent

the parties may further agree

in writing.

stipulation referred to in

above order had provided:

i The defendant wili take

immediate steps to attempt to

arrange for a hearing through

the Residency Review Commitee

for Neurological Surgery.

ye If arrangements for such

a hearing cannot be made

through said Residency Review

Committee, or if the parties

cannot agree to the hearing

procedure, then in that event

the parties will attempt to

arrange an alternate hearing

pursuant to agreement.

iF The subject matter of

such hearing before the

Residency Review Committee

for Neurological Surgery, or

such other hearing procedure

to which the parties may

the

agree, will be whether the

action of the defendant of

withdrawing the plaintiff

from participation in the

residency training program

was or is justified by the

facts relevant thereto. The

review of this issue will be

on a de novo basis.

4. The procedural and other

matters in respect to such

hearing will be pursuant to

the agreement of the parties.

5. Effective immediately

the directive of the

defendant, as set forth in

his letter of December 21,

1978 to the plaintiff

terminating the assignment of

the plaintiff to the

residency program in

neurological surgery will be

stayed and held in abeyance

pending the holding of a

hearing as set forth above,

and the determination Or

decision pursuant to such

hearing.

6. In the event that a

hearing cannot be = arranged

through said Residency Review

Committee, and the parties

cannot otherwise agree with

respect to arranging a

hearing as provided in

paragraphs 1 and 2 above,

then the plaintiff will

request this Court to assign

a 32 .

the plaintiff's Motion for

Preliminary Injunction for an

evidentiary hearing.

Appended as Exhibit B to Dr. Yashon's

Second Motion for Preliminary

Injunction.

On May 7, 1979, Dr. Yashon filed a

second motion for a preliminary

injunction asking the Court to enjoin a

hearing scheduled by Dr. Hunt for May

14, 1979 and to continue in effect the

Court's order of February 27, 1979.

Dr. Yashon maintained that the planned

hearing did not comply with the

February 27 stipulation in that the

parties had not agreed upon the panel

membership or the procedures to be used

by the panel and in that the hearing

was not to be held before a residency

review committee. Dr. Yashon further

contended that the proposed date did

not provide him ample time for

discovery. that the proposed hearing

procedures did not comport with the

minimum standards of due process, and

that, were the hearing held as

scheduled, there was a substantiai

danger that he would again be wrongly

denied of his rights and privileges as

a tenured professor.

On May 21, 1979, the Court entered

another order in this case:

By agreement of the parties,

and with the approval of the

Court, it is hereby ORDERED

that this cause will not be

assigned for a hearing on

plaintiff's motion for

preliminary injunction until

further order of the Court;

that the Court's order of

February 27, 1979, is vacated

insofar as it stayed the

operation and effect of

Gefendant William E. Hunt's

letter of December 21, 1978

and restored plaintiff David

Yashon to the Resident

Training Program in

Neurologic Surgery; that,

until further order of the

o~ M8 «

Court or pursuant to the

parties Agreement of May 109,

1979, plaintiff will not he a

member of the faculty of the

Resident Training Program in

Neurologic Surqery; and that

the aqreement reflected

herein, the Aqreement of

May 10, 1979, and the

parties’ pursuit of further

alternative means of

resolution of the issues

raised by plaintiff's motion

for preliminary injunction

shall not he considered 4

waiver by either party of any

claims, defenses, riahts nr

privileges which he may have,

except as and to the extent

the parties may later agree

in writing.

The agreement referred to in the order?

provided:

In order to facilitate Dr

David Yashon in his efforts

to seek relocation outside

The Ohio State University,

the following arrangements

are agreed to by David

Yashon, William FE. Hunt, and

their respective counsel:

Be Dr. Yasnon agrees that

the decision of Dr. Hunt on

December 21, 1978, to remove

Dr. Yashon from the faculty

of the Residency Training

Program of Neurologic Surgery

shall be reinstituted to take

effect May 14, 1979, and

remain in effect until such

time as Dr. Yashon is

reinstated to the faculty of

the Residency Training

Program by a decision of a

hearing panel, further order

of the Court or the further

agreement of the parties.

as The hearing set’ for

May 14, 1979, to review Dr.

Hunt's decision of December

21, 1978 is cancelled. The

parties will jointly notify

Attorney William Alexander of

this cancellation.

a Beginning immediately

and continuing through

September 4, 1979, plaintiff

will actively seek to locate

and obtain a position

comparable to that which he

now holds in an institution

outside of The Ohio State

University which is

acceptable to him. Defendant

agrees to support this

endeavor by not interfering

with and not taking any

action which would adversely

impact upon this’ endeavor.

Further, = is understood

that this endeavor cannot be

successful without the active

assistance, cooperation and

support of the administration

of The Ohio State University

-

Hospitals and The Ohio State

University College of

Medicine.

4. Dr. Yashon may not

request restoration to the

faculty of the Residency

Training Program in

Neurologic Surgery until

after September 4, 1979.

After September 4, 1979, if

Dr. Yashon has not relocated

outside The Ohio State

University and remains a

staff member of University

Hospital and a faculty member

of The Ohio State University,

he may thereafter request a

hearing to determine whether

he should be restored to the

faculty of the Residency

Training Program. If such a

request tor a hearing is made

by Dr. Yashon, it is

contemplated that the hearing

will be held before at least

three (3) members of the

Residency Review Committee

for Neurologic Surgery. The

Committee itself shall select

the three (3) of its own

members who will comprise the

hearing panel. Dr. Yashon

shall not be a member of the

faculty of the Residency

Training Program in

Neurologic Surgery unless and

until restored to such

position by decision of the

foregoing panel, order of the

Court or further agreement of

a 39

the parties. The procedure

for such hearing’ shall _ be

established by agreement of

the parties. The subject

matter of the hearing before

-such panel will be whether

the action of defendant in

withdrawing the plaintiff

from participation in the

Residency Training Program

was or is justified by the

facts relevant thereto, such

determination to be made on a

de novo basis.

5. It is further agreed

that beginning May 14, 1979,

provisions will be made for

plaintiff's continuation and

performance of his

responsibilities and duties

as a professor and attending

physician pursuant to Dr.

Hunt's amended memorandum of

January 18, 1979. A copy of

that amended memorandum is

ens aenen hereto as Exhibit

“A”.

There is no indication in the record of

any of the Yashon cases that Dr. Yashon

has, to date, requested his restoration

to the faculty of the Residency

Training Program in Neurologic Surgery

ee eee

pursuant to paragraph 4 of the May 10,

1979 agreement.

Apart from the matters raised by

the two motions for preliminary

injunctive relief, the underlying

complaint, with the claims against Dr.

Hunt for compensatory and punitive

Gamages, is still pending before the

Court.

2. Yashon II

On March 4, 1981, Dr. Yashon filed

a second civil rights action, David

Yashon v. Larry C. Carey, C-2-81-411l

[hereinafter Yashon Ex3. The

defendant, Dr. Carey, was employed by

The Ohio State University as professor

and chairman of the Department of

Surgery, and as the Director- of the

Training Program in General Surgery and

— . oe

Chief of the Clinical Division of

Surgery in University Hospitals.

The initial allegations in the

Yashon II complaint clearly paraileled

those in Yashon I. That is Dr. Yashon

alleged that he was a tenured faculty

member, alleged the terms of his

contract with the university, and

alleged that his membership on the

attending medical staff at University

Hospitals was governed by the

constitution, bylaws, rules and

regulations of the medical staff.

(Complaint, U4, 6 - 8.)

Again, consistent with the

allegations in Yashon I, Dr. Yashon

alleged that he had “been subjected by

defendant [Carey] to a deliberate and

continuing program of harassment,

interference and non-cooperation in his

performance of the said contracts and

— i

attending staff membership ee oe ee bes

Complaint, qyi2. This harassment,

allegedly undertaken by the defendant

through his positions with the

university, included, inter alia, the

following forms: the defendant

participated in, condoned, and failed

to prevent an ongoing program of

harassment, interference and

non-cooperation by Dr. William H. Hunt,

the Director of the Division of

Neurologic Surgery in the Department of

Surgery and the Chief of the Clinical

Division of Neurologic Surgery; on

May 5, 1978, the defendant, without

adequate investigation, submitted a

groundless charge of grave misconduct

against Dr. Yashon in connection with

the inclusion of the name of another

faculty member as a research consultant

on an application for a research grant;

a Ob a

in December, 1978, the defendant

summarily excluded Dr. Yashon from the

list of those to whom general surgery

residents would be assigned for

training and participated in the

summary removal of Dr. Yashon from the

residency training program in

neurologic surgery; on October av,

1979, the defendant instituted

procedures to force the removal of Dr.

Yashon from the attending medical staff

of University Hospitals despite the

fact that the charges made by defendant

were recklessly proffered with little

or no investigation and with the

purpose of destroying Dr. Yashon'‘s

career as an academic surgeon; the

defendant denied Dr. Yashon access to

medical records, access to which was

necessary to defend against the charges

filed on October 27, 1979; on May 31,

» 62 «

1980, the defendant, without authority

and without an adequate factual basis,

summarily and indefinitely suspended

Dr. Yashon's admission and operating

room privileges at University

Hospitals; the defendant has

established, approved and/or acquiesced

in hospital practices and policies that

discriminate against Dr. Yashon; the

defendant has precluded Dr. Yashon from

performing valuable and necessary

research; the defendant has’ verbally

berated Dr. Yashon through inaccurate

accusations of misfeasance,

malfeasance, or nonfeasance in the

presence of third persons; and_ the

defendant has made numerous inaccurate

Oral and written criticisms of Dr.

Yashon's performance under his

contracts with the university to Dr.

Yashon's colleagues, superiors, and

~

various committees of University

Hospitals. (Complaint, Y13(a) - (e),

(g), (1) - (1).-)

Based on these allegations, Dr.

Yashon stated five claims for relief

that, he prayed, justified an award of

$5,000,000 in compensatory damages and

$5,000,000 in punitive damages.° These

claims were:

FIRST: That defendant's

tortious harassment of Dr.

Yashon has’ rendered it more

difficult and, in some cases,

impossible for Dr. Yashon to

perform under his contracts

with the university, and that

defendant intends by such

harassment to prevent Dr.

Yashon entirely from

ao 2h =

performing his duties under

said contracts;

SECOND: That, since January,

1976, defendant has

tortiously engaged in a

pattern of extreme and

outrageous conduct;

THIRD: That the defendant,

through his on-going acts of

harassment, has jeopardized

Dr. Yashon's professional and

career prospects, impaired

his liberty to practice his

profession, impaired his

right to make, enforce, and

perform contracts, including

his contracts with the

university, and violated his

rights to procedural Ane

process;

FOURTH: That the defendant,

during a meeting of the

executive committee of the

medical staff of University

Hospitals, knowingly and

maliciously made false and

defamatory statements about

Dr. Yashon: and

FIFTH: That the defendant

did willfully and maliciously

make defamatory statements

about Dr. Yashon to members

of other hospitals in_ the

Columbus, Ohio area and that

the defendant did communicate

unflattering statements about

Dr. Yashon to department

i

;

§

E

7

chairmen at other medical

schools throughout the

country.

As was the case in Yashon I, the above

claims also allegedly resulted in

injury to Dr. Yashon's’ -professional

reputation, in impairment of his

ability to function as an academic

neurosurgeon and to provide quality

medical care _ for his patients at

University Hospitals, and in mental

distress, anguish, embarrassment, and

humiliation.

The defendant, Dr. Carey, filed an

answer on March 30, 1981 in which he

denied all of the substantive

allegations of wrongdoing.

Subsequently, on June 29, 1981, the

plaintiff filed ad motion for a

=» £9 «

preliminary injunction. The basis for

this motion was Dr. Carey's allegedly

unconstitutional failure to recommend

Dr. Yashon's reappointment to the

attending medical staff of University

Hospitals for the period beginning July

1, 1981.6 Dr. Carey filed a motion to

dismiss the motion for a preliminary

injunction on July 2, 1981 in which he

argued (1) that the motion for a

preliminary injunction was improper

because Dr. Carey was not empowered to

grant the relief requested, that is,

Dr. Yashon's reinstatement to the

attending medical staff and (2) that

the motion was premature in that Dr.

Yashon' had failed to pursue his

administrative remedies.”

To date, no further action has been

taken in this case.

———————

3. Yashon IIl

On July 16, 1981, Dr. Yashon and

Thomas Hawk, M.D. filed a civil rights

action; David Yashon, M.D,., et al v.

Willi E Hunt M.D 1,

C-2-81-867 [hereinafter Yashon III].

Named as defendants in the verified

complaint are Dr. Hunt, Dr. Carey, the

individual members of the Board of

Trustees of The Ohio State University, 8%

the individual members of the

University Hospitals Board,? the

individual members of a Joint

Conference Committee, 1° and the

individual members of the Medical Staff

Administrative Committee.11 According

to plaintiffs, this action was

“instituted to redress and enjoin the

ongoing and threatened actions of

Sm

defendants Hunt and Carey to deprive

plaintiffs of equal protection of the

laws and of their property and liberty

interests without due process of law,

in violation of the Fourteenth

Amendment to the United States

Constitution.” Complaint, 413.12

Dr. Yashon alleges in the verified

complaint that he entered into a

contract with The Ohio State

University, effective September Li

1969, pursuant to which he was

appointed as an Associate Professor in

the Department of Surgery. The terms

of this contract include the letter of

offer, the annual notices of

appointment, the relevant statutes of

the State of Ohio, the bylaws of the

Board of Trustees of The Ohio State

University, the rules of the university

faculty, the departmental and/or

- 90 —-

college statement of criteria and

procedures for promotion and tenure,

the faculty handbook, the operating

manual, the University Hospitals Board

bylaws, and any written understandings

between Dr. Yashon and the university

regarding his employment. Pursuant to

this contract, Dr. Yashon was awarded

tenure in 1976 and was promoted to the

position of full professor in the

Division of Neurologic Surgery of the

Department of Surgery in 1974.

(Complaint, YY16 - 18.)

Dr. Yashon further alleges’ that,

effective September, 1969, he was

appointed to the attending medical

staff of University Hospitals; this

appointment was concurrent with and a

result of his appointment to- the

faculty and was in accord with the

constitution, bylaws, rules and

~~ =

regulations of the medical staff of

University Hospitals. Since 1969, Dr.

Yashon's appointment to the faculty and

to the attending medical staff have

been continued through annual notices

of reappointment. The continuing

appointment to the attending medical

staff has been recognized by the

university, according to Dr. Yashon, as

an absolute requirement in his role as

a professor in the Division of

Neurologic Surgery. (Complaint,

WW19 - 21.) *

_Prior to June, 1981, Dr. Yashon

submitted his application for

reappointment to the attending medical

staff.13 On June 18, 1981, Dr. Manuel

Tzagournis informed Dr. Yashon that Dr.

Carey had refused to submit his name to

the Medical Staff Administrative

Committee and that, therefore, as of

— oe

July 1, 1981, Dr. Yashon would no

longer be a member of the attending

medical staff.14 Dr. Yashon had not

been previously notified of Dr. Carey's

intention not to recommend his

reappointment; in addition, Dr. Yashon

had not been told of any outstanding

charges against him that would support

Dr. Carey's decision nor, if such

charges existed, was he afforded any

opportunity to respond to such

charges. (Complaint, YYy29 - 31.)

Dr. Yashon contends that the

decision by Dr. Carey not to recommend

his reappointment

was [upon information and

belief] participated in by

defendant Hunt and was a

product of the continuous

harassment, interferences and

deprivations committed by

defendants Carey and Hunt in

their ongoing effort to force

plaintiff Yashon from the

University Hospitals and the

College of Medicine, in

=“. ae

violation of his contract,

tenure and Constitutional

rights, as more fully

described and set forth in

Yashon v. Carey, Civil Action

No. C-2-81-41ll, and Yashon v.

Hunt, Civil Action No.

C-2-78-066 on the dockets of

this Court.

Complaint, 432. This latest action by

Dr. Carey and Dr. Hunt followed two

previously unsuccessful attempts by Dr.

Carey to remove Dr. Yashon from or to

curtail his privileges as a member of

the attending medical staff (Complaint,

W733 - 38).15

In sum, Dr. Yashon alleges that

[t]he present attempt by Drs.

Carey and Hunt to block

plaintiff's reappointment’ to

the Medical Staff is in

flagrant and malicious

Gisregard of the decisions of

the duly constituted

committees of the University

Hospitals rejecting their

prior attempts to remove

and/or curtail plaintiff

Yashon's clinical privileges,

the formal procedures

established by the

—— °

Constitution and Bylaws of the

Medical Staff for such removal

or curtailment, plaintiff's

status as a full, tenured

Professor, the Rules of the

University Faculty specifying

the procedures by which

plaintiff's contract and

tenure may be termianted for

cause, plaintiff's established

right to reappointment, and

plaintiff's rights to due

process and equal protection

of the laws as guaranteed by

the Fourteenth Amendment’ to

the United States Constitution.

Complaint, 439.

Based on these allegations, Dr.

Yashon puts forth four claims’ for

relief. Under his first, second, and

third claims, he states alternate

theories to support his contention that

the attempted termination of his

membership on the attending medical

staff violated numerous of his

constitutional rights and specifically

deprived him of his property and

—

liberty without due process of

Dr.

Yashon contends:

he That, pursuant to the

rules of the university

faculty, the bylaws of the

University Hospitals Board,

and the constitution and

bylaws of the medical staff

of University Hospitals, he

was entitled to have his

appointment to the attending

medical staff continued

through annual

reappointments, subject to

his medical staff privileges

being terminated only on the

grounds and pursuant to the

procedures established for

revocation of his tenure

and/or the grounds and

»« 2 =

law.

procedures established for

removal of medical staff

privileges under the

constitution and bylaws of

the medical staff;

; oe That, pursuant to the

custom and usage of the

University Hospitals in

routinely and automatically

reappointing him and others

to the attending medical

staff, he had a reasonable

expectation that he would

continue to be reappointed to

the medical staff annually,

unless he was removed on

grounds and pursuant to

procedures established for

the termination of his right

to engage in clinical

=o 67 «

teaching and academic

medicine; or

me That, as 3 tenured

member of the faculty, he is

entitled to continued

reappointment to the

attending medical staff,

subject to that membership

being terminated only

pursuant to the rules of the

university faculty governing

the grounds and procedures

for termination of tenure.

Complaint, WW46, 48, 50. Finally,

under his last claim,1® Dr. yYashon

states that he is entitled to

reappointment to the attending medical

staff because the procedures

“purportedly” followed by defendants in

denying his reappointment are

constitutionally defective. Complaint,

954.17

In his’ prayer for relief, Dr.

Yashon asked that the Court’ grant

preliminary and permanent injunctive

relief (1) compelling defendants’ to

reinstate him to membership on the

attending medical staff of University

Hospitals with all rights and

privileges pertaining thereto,

including full participation in the

residency training program in

Neurosurgery; and (2) restraining Drs.

Hunt and Carey from further attempting

to discharge, dismiss, or terminate Dr.

Yashon from the attending medical staff

without complying with the requirements

and procedures of the rules of the

university faculty and the

- 99 .

constitution, bylaws, rules and

regulations of the medical staff and

from further attempting to. harass,

threaten, coerce, or intimidate Dr.

Yashon into terminating his

relationship with University Hospitals

or with The Ohio State University.

Simultaneous with the filing of the

complaint in Yashon III on July 16,

1981, the plaintiffs filed a motion for

a temporary restraining order. On July

17, 1981, the Court filed a consent

order in Yashon III:

It is hereby agreed and so

ordered that, in order to

preserve the status quo until

the Court renders a decision

upon the plaintiffs‘ request

for a preliminary injunction,

or until said request is

otherwise resolved, Dr. David

Yashon and Dr. Thomas’ Hawk

- 100 -

are granted the same rights

and privileges which they

each had at The Ohio State

University Hospitals as_ of

June 30, 1981.1

This consent order had been expressly

approved by counsel for both parties.

On July 17, 1981, the Court also

conferred in chambers with Rudolph

Janata, trial attorney for Dr. Yashon,

and John Elam, trial attorney for the

defendants. In the course of this

conference, the Court stated that Dr.

Carey

should forward plaintiff

Yashon's application for

reappointment to the medical

staff .. . to the Medical

Staff Administrative

Committee of The Ohio State

University Hospitals for

disposition in the same

routine manner as other such

applications for

reappointment were

processed. Judge Kinneary

indicated that his directive

was prompted by consideration

of judicial economy; if the

Medical Staff Administrative

- 101 -

Committee acted favorably on

plaintiff Yashon's

application for reappointment

to the medical staff, the

present lawsuit would be moot.

Mr. Elam then requested that

defendant Carey be allowed to

explain to the Medical. Staff

Administrative Committee his

reasons for refusing to

recommend the reappointment

of plaintiff Yashon to the

medical staff. Judge

Kinneary agreed to this

request, stating that

defendant Carey b- allowed to

explain to the Medical Staff

Administrative Committee his

reasons for refusing to

recommend the § reappointment

of Yashon to the~ medical

staff and that plaintiff

Yashon be afforded an

opportunity to respond to

defendant Carey's

explanation. Judge Kinneary

stated that he did not want a

“hearing” as such and that no

counsel were toc be present at

the meeting of the Medical

Staff Administrative

Committee held to consider

plaintif€ Yashon's

application for reappointment

to the medical staff.

At no time did Judge Kinneary

suggest, indicate or order

that the Medical Staff

Administrative Committee

- 102 -

conduct a “due process”

hearing on plaintiff Yashon's

application for reappointment

to the medical staff, at

whcih hearing witnesses could

be called and examined.

Instead, Judge Kinneary

suggested that plaintiff

Yashon and defendant Carey

each make a presentation to

the Medical Staff

Administrative ‘Committee

concerning plaintiff Yashon's

application for reappointment

to the medical staff.

Affidavit of Rudolph Janata at 3,

appended as Exhibit A to Plaintiff

David Yashon, M.D.'s Memorandum in

Opposition to Defendants' Motion to

Vacate Consent Order and for Summary

Judgment [hereinafter Janata Affidavit].

With the consent order in effect,

the matter of Dr. Yashon's

reappointment to the attending medical

staff was now back with the university.

- 103 -

1. Notice of the Hearing

In late July, Dr. Michael E.

Whitcomb contacted Dr. Yashon and

informed him of his plans to arrange a

meeting of the Medical Staff

Administrative Committee to consider

Dr. Carey's refusal to recommend Dr.

Yashon's reappointment to the medical

staff at University Hospitals. App. A

at 360-61.19 The hearing before the

Medical Staff Administrative Committee

was scheduled for September 1, 1981 at

7:30 a.m.; Dr. Yashon was given notice

of the meeting by letters from Dr.

Tzagournis and Dr. Whitcomb. App. B,

Attachments I and I1I.29 Subsequent to

Dr. Yashon's receipt of these letters,

both Dr. Tzagournis and Dr. Whitcomb

communicated with him by telephone;

they both explained to 'r. Yashon that,

- 104 -

apart from the reasons outlined by Dr.

Carey in his August 14, 1981 letter to

Dr. Tzagournis, see App. B, Attachment

III, they had no knowledge of any

witnesses who might be called by or of

any documents that might be presented

by Dr. Carey at the September 1

hearing. App. A at 362-63.21

Thus, the only information formally

provided Dr. Yashon prior to the

hearing was that contained in Dr.

Carey's letter to Dr. Tzagournis. This

letter, copies of which were not

distributed by Dr. Whitcomb to members

of the Medical Staff Administrative

Committee prior to the September 1

hearing, App. A at 48, 362, explained

the basis for Dr. Carey's refusal, as

Chairman of the Department of Surgery,

to recommend Dr. Yashon's reappointment

to the medical staff. As a prelude to

- 105 -

more

acti

specific charges justifying

on, Dr. Carey stated:

Because the University

Hospital is a teaching

institution, its faculties

must be limited to those

making a positive

contribution in that area.

The basis for my refusal to

recommend Dr. Yashon's

reappointment is that his

activities and professional

conduct over the past five

years at The Ohio State

University have violated the

standards of the medical

staff and have been

disruptive to the Clinical

Division of Neurosurgery and

the University Hospitals in

general. His actions of

harassment, disruption,

insubordination, lack of

cooperation, and misconduct

among fellow members of the

medical staff, the

administration of University

Hospitals, and other non-M.D.

staff members at the

University have created a

negative environment for the

effective teaching of

medicine at The Ohio State

University Hospitals. His

activities in manipulating

the University Hospitals

policies, practices, and

procedures are totally

incompatible with advancing

his

the goals of this teaching

hospital; instead he is

apparently interested in only

advancing his own personal

gain.

App. B, Attachment III at 1. Apart

from this general statement, Dr. Carey

went on to catalogue a series of more

specific reasons which, he believed,

supported his decision not to recommend

Dr. Yashon's reappointment:

As DE Yashon's

participation in the

training program in

General Surgery and

Neurologic Surgery

including: ‘

a. his continual

efforts to achieve

reinstatement as a

memer of the

neurosurgery

training program by

disruptive and

harassing means in

direct

contravention of

his agreement as a

part of a

settlement in

Federal Court and

his failure to seek

- 107 -

reinstatement by

the proper method

agreed upon --

requesting a

hearing to

determine his

qualifications

before at least

three members of

the Residency

Review Committee;

his persistence in

admitting patients

who he knows will

require resident

care despite the

fact he is not a

member of the

neurosurgery

training program;

his total failure

to provide proper

and adequate

Girection for the

care of his

patients to the

residents and

nurses involved in

the care of those

patients;

his failure to

respond

appropriately to a

specific request of

a resident that he

come to the

hospital and attend

a patient;

- 108 -

e. his attempts to

hire residents’ to

perform mye lograms

and other duties;

$s his failure to

provide adequate

supervision to

residents.

Dr. Yashon's undesirable

behavior which sets a

bad example for house

staff and students,

including:

a. his adding another

faculty member as a

consultant on a

grant without

permission of the

faculty member;

b. his use of another

faculty member's

material in A

publication without

permission of the

faculty member;

C. his unauthorized

copying of the

confidential charts

of other

physicians’

patients;

d. his improper

offering to pay

clerical staff

members of the

- 109 -

medical records

department;

Dr. Yashon's rifling of

departmental records and

the unauthorized removal

of confidential records,

including confidential

mortality and morbidity

records, from another

faculty member's office.

Dr. Yashon's admitting

patients as "add-on"

patients to take

advantage of the

admitting system, and to

avoid the ceiling on

admissions applicable to

all surgeons’ when, in

fact, the patients were

not in an “add-on” state.

Dr. Yashon's improper

use of medical charts by

removing notations.

De. Yashon's arbitrary

removal of patients of

other physicians f rom

beds in order to make

room for his own

patients, and his

general disregard for

census limitations.

While under summary

suspension, Dr. Yashon's

improperly arranging for

the admission of

patients.

- 110 -

10.

il.

12.

13.

14.

Dr. Yashon's negative

and abusive behavior

such that neurosurgical

residents have requested

relief from working with

him.

Dr. Yashon's verbally

falsifying to the

Chairman of the

Department his operative

surgery results.

Dr. Yashon's seeking a

faculty appointment of

an associate for the

sole purpose of private

practice.

Dr. Yashon's' improperly

scheduling and

performing neurosurgery

without assistance Or

intensive care bed

availability.

Dr. Yashon's failure to

avail himself of

appropriate appeal

mechanisms within the

University to resolve

disputes.

Dr. Yashon's failure to

discuss with a colleague

a request for a

consultation by a family.

Dr. Yashon's refusal to

abide by legitimate

rules regarding

supervision of surgery

by residents.

Id. at l nas wa

2. The Hearing

Dr. Michael E. Whitcomb, Chairman

of the Medical Staff Administrative

Committee, began the September 1

hearing with a brief explanation as to

the purpose of the proceedings:

As you all know, our purpose

here this morning is to

review Dr. Yashon's

application or request’ for

reappointment to the medical

staff. Dr. Carey, aS you

know, did not recommend

reappointment, and our

purpose today specifically is

to hear Dr. Carey's reasons

why he chose not to recommend

reappointment of Dr. Yashon

and to give David an

opportunity to respond to

whatever issues Larry may

raise. |

I would like to point out,

this is not a court of law.

App.

We have no absolute set

guidelines in terms of the

proceedings which we are

compelled to follow, but our

format will be such that I

will ask Larry if he chooses

and David if he chooses to

make some initial comments

- »- « and then for Larry to

present specific reasons why

he chose not to recommend

David to the staff and, as we

go through the process, to

allow David to respond to

those point by point.

A at 4 - 5. Dr. Whitcomb

stressed

that our goal here today

really is to deal with Dr.

Yashon's request for

reappointment. I think we

should keep our discussions

within that context. This is

not the time for us to go far

afield in dealing with other

individuals or other things

which are not’ relevant’ to

appointment to the medical

staff of the university

hospitals and what that means

in its entirety.

at 6.

also

Consistent with these procedural

guidelines, both Drs. Carey and Yashon

- 113 -

made opening statements. Dr. Carey,

after presenting a brief outiine of the

Yashon I litigation, of the course of

events that followed the filing of

charges by him against Dr. Yashon in

October, 1979, and of the events

leading up to the September 1, 1981

hearing, explained that it was his

intent

to provide evidence to this

committee, that Dr. Yashon is

an undesirable member of this

hospital staff, that his

conduct in a variety of

arenas has been so bad that

he should not continue to set

an example for our students

and our residents, nor to be

involved in providing patient

care in this institution.

1a. a@a¢ iS. As to the witnesses’ and

documentary evidence he would present,

Dr. Carey cautioned that

I am in no position now, nor

have I been in the past, to

evaluate or. Yashon's

competence as a

- 114 -

neurosurgeon. It is my

opinion that can only be done

by another neurosurgeon. But

I believe I am in a position

and have the responsibility

of determining whether or not

an individual in the

Department of Surgery is

competent to practice in this

institution. That says

little specifically about his

competence as a- physician.

It says something about his

propriety as a member of the

staff of a teaching hospital.

Id,

Dr. Yashon, for his part, claimed

that his experiences at Ohio State

University had been most satisfactory

until 1975, during which time

differences arose between him and Dr.

Hunt that caused him to leave ODr.

Hunt's corporation and to set up his

own practice corporation. ig. @t 243 -

24. Since that time, both Drs. Hunt

and Carey caused him numerous problems

in executing his teaching and medical

practice duties. Id, at 24 - 25, 27.

In addition, Dr. Yashon noted a number

of objections to the format and

substance of the hearing: that he had

not received notice of Dr. Carey's

intent to call witnesses (id, at 27 -

28); that most of the reasons

delineated in Dr. Carey's letter of

August 14, 1981 to Dr. Tzagournis were

previously reviewed and found

groundless by a grievance committee

(id. at 28 -—- 40); that he had an

inadequate opportunity to prepare a

response to those of Dr. Carey's

charges that were not reviewed by the

grievance committee (id. at 29 - 30);

that the Medical Staff Administrative

Committee was not the proper forum to

review the charges made by Dr. Carey in

his August 14, 1981 letter to ODr.

Tzagournis (id. at 30); and that, as a

- 116 -

tenured faculty member, his membership

on the attending medical staff could

only be terminated by resort to the

university procedures for

detenurization (id. at 41 - 42, 46 -

47).

Dr. Carey then proceeded to call

thirteen witnesses. The format with

respect to each witness was basically

the same; Dr. Carey would make some

introductory remarks and would then

direct questions to the witness. Dr.

Yashon and the members of the committee

would then have an opportunity to

direct questions to the witnesses;

throughout the hearing, moreover,

members of the committee would direct

questions to Drs. Carey and Yashon as

well. Thus, both Drs. Carey and Yashon

were themselves witnesses to some

matters.

Upon a review of the testimony

presented at the hearing of the Medical

Staff Administrative Committee, the

Court finds that testimony was

presented as to the following charges

in Dr. Carey's letter to Dr. Tzagournis:

- 118 -

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Further, there was no testimonial

evidence as to charges 2(b), 4, 6, 10,

ll, and 12.22

All of the testimony relevant to

Dr. Carey's charges against Dr. Yashon

can be broken down into four

categories: the charges as to which

testimony was not challenged by ODr.

Yashon; the charges as to which there

was conflicting testimony, thus leaving

committee members with the problem of

weighing the credibility of the various

witnesses; the charges as to which only

conclusory testimony was presented; and

the charges as to which Dr. Yashon

probably could have presented witnesses

on his behalf.

Under the first category, Dr.

Yashon either did not deny the

following charges or acknowledged the

- 122 -

conduct alleged, but denied that the

conduct itself was improper: that he

attempted to hire a resident to perform

myelograms (charge l(e)); that _ he,

without authorization, copied the

charts of another physician, that is,

Dr. Goodman (charge 2(c)); that he

improperly offered to pay a clerical

staff member of the medical records

department to pull charts for him

(charge 2(d)); and that he improperly

used a medical chart by removing from

the chart the notation of another

doctor, that is, Dr. Hunt (charge 5).

Under the second category, there

was conflicting testimony as to a

number of the charges; as to each of

these, however, there was sufficient

evidence from which members of the

Medical Staff Administrative Committee

could decide that the testimony against

- 123 -

Dr. Yashon was credible and_ that,

therefore, the charges were

meritorious. 23 Included in this

category are the following charges:

that- Dr. Yashon failed to respond to

the specific request of a resident,

that is, Dr. Freeman, that Dr. Yashon

come to the hospital and attend a

patient ‘charge 1(d)); that Dr. Yashon

added another faculty member, that is,

Dr. St.Pierre, as a consultant on a

grant application without his

permission (charge 2(a)); that Dr.

Yashon, without authorization, removed

confidential medical records from the

office of another faculty member, that

is, Dr. Teterick (charge 3); that Dr.

Yashon verbally gave Dr. Carey false

figures as to his operative surgery

results (charge 9); and that Dr. Yashon

failed to discuss with a colleague,

that is, Dr. Hunt, a request for a

consultation by a family (charge 13).

Under the third category, there was

conclusory testimony as to a number of

charges. As to both charges l(a) and

l(b), Dr. Hunt summarily stated that

Dr. Yashon had engaged in such conduct,

but he offered no testimony as to any

specific conduct.

Finally, under the last category,

there are a number of charges as to

which testimony was given that could

justify a finding that the charges were

meritorious; at the same time, the

charges are of such a nature as_ to

permit an inference that’ there are

other witnesses whom Dr. Yashon might

have called in support of his

contention that the charges are

groundless or that the charges are of

slight importance. Included in this

- 125 -

category are the charges that Dr.

Yashon totally failed to provide proper

and adequate direction to the residents

and nurses involved in the care of his

patients (charge l(c)); that Dr. Yashon

failed to supervise residents

adequately (charge 1(f)); that Or.

Yashon engaged in negative and abusive

behavior such that neurosurgical

residents have requested relief from

working with him (charge 8); and that

Dr. Yashon has’ refused to abide by

legitimate rules regarding the

supervision of surgery by’ residents

(charge 14).24

3. Prior Disciplinary Actions

The Medical Staff Administrative

Committee was aware that many of the

charges as to which Dr. Carey provided

- 126 -

witnesses at the hearing had been the

subject of prior disciplinary actions

against Dr. Yashon. These disciplinary

hearings had reviewed the charges that

Se . Yashon had included, without

authorization, the name of another

faculty member as a consultant in a

grant application; the charges in Dr.

Carey's October 27, 1979 letter to Dr.

Henry G. Cramblett, the then Dean of

the College of Medicine, which charges,

Dr. Carey believed, justified the

removal] of Ors Yashon from the

attending medical staff of University

Hospitals; the charges which resulted

in Dr. Carey's May 31, 1980 suspension

of Dr. Yashon's admission and operating

room privileges at University

Hospitals; and the charge that Dr.

Yashon had improperly removed a note

- 127 -

written by Dr. Hunt on ae patient's

chart.

The first charge, that Dr. Yashon

had engaged in grave’ misconduct in

including, without authorization, the

name of another faculty member as a

consultant in a grant application, was

reviewed by Dr. Cramblett pursuant to

the university rules governing

detenurization. 2°? After reviewing the

complaint and the supporting documents,

Dr. Cramblett concluded "that the

allegations against Dr. Yashon, when

taken together with Dr. Yashon's action

in formally notifying NIH that Dr.

St.Pierre's name should be withdrawn

from the grant’ proposal, does not

constitute grave misconduct as_ that

term is defined in Rule

3335-5-04(A)7." App. A at 122. In

- 128 -

explaining his decision, Dr. Cramblett

noted that he

regard[ed] the charge against

Dr. Yashon as a serious

charge. But the effect of

this incident alone -- again,

when taken with Dr. Yashon's

notice to NIH -- is not such

that it would seriously

impair Dr. Yashon's

effectiveness in meeting his

defined teaching, service and

research obligations.

Id. at 122-23. Accordingly, Dr.

Cramblett dismissed the complaint.®

The second set of charges were

those contained in Dr. Carey's October

27, 1979 ietter to Dr. Cramblett. App.

C at 3(C). These charges, most of

which were also contained in Dr.

Carey’s August 14, 1981 letter to Dr.

Tzagournis, allegedly justified Dr.

Yashon's removal from the attending

medical staff.

- 129 -

These charges were reviewed by an

Investigation Committee of the Clinical

Division of Surgery. Report of

Investigation Committee (January 14,

1980). App. C at 2. The Investigation

Committee reported:

It is the opinion of the

committee that the incidents

cited in the charges and the

resultant intradepartmental

relations have been

disruptive. They have

disrupted the medical care

delivered in the Neurological

Surgical Service of the

University Hospital and have

disrupted the administrative

functions of the Neurological

Surgical Service in the

Clinical Division of

Surgery. They have disrupted

the Post MD teaching

activities of the

Neurological Surgical Service

in the Clinical Division of

Surgery. Moreover the

committee feels that the

Situation has been allowed to

continue too long and that

disciplinary action should be

taken to prevent further

disruption.

We have arbitrarily divided

the charges into three

groups: disruptive behavior,

unprofessional conduct, and

clinical incompetence. We

regret to say that there are

other examples of most of the

incidents representing

disruptive behavior and

unprofessional conduct in

which other persons on the

hospital staff have been

participants. It appears

that the charges against Dr.

Yashon were made on the basis

that the frequency was

greater than for other

members of the hospital

staff. We have no evidence

to support this concept since

the general frequency of

similar incidents is not

available. Dr. Yashon was

able to document that some of

his behavior was similar to

that of his accusers in more

than one instance. Although

Significant suggestions of

clinical incompetence were

made, no one whom we

interviewed was prepared to

state that Dr. Yashon was an

incompetent clinician. In

fact, some indicated that he

was very competent. This

committee does not feel

qualified to measure his

clinical competence. We

feel, however, that this is

the most serious charge

apparent in our investigation

and it should be reviewed.

This should be done by

- 131 -

individuals in the field of

neurosurgery from outside of

the University since it is

our opinion that an unbiased

evaluation of the current

hospital staff would be

improbable due to the

chronicity of the- problem.

Dr. Yashon should have input

to the selection of his

reviewers.

In summary, we feel that the

charges are substantial and

the disruption caused by the

incidents is obvious. We

have been unable to find the

cause or to place blame. The

significance of the

suggestion of incompetence is

self-evident and action

should be taken to settle

this for the welfare of the

patients and the institution.

if. Based on this report of the

Investigation Committee, Dr. Luther M.

Keith, Ir., Vice-Chairman of the

Department of Surgery wrote to Dr.

Cramblett, Dean of the College of

Medicine, and recommended that he take

appropriate disciplinary action against

Dr. Yashon or submit the matter for

- 132 -

further investigation and consideration

by a grievance committee as provided by

Article V Section 3 of the

constitution, bylaws, rules and

regulations of the medical staff of

University Hospitals. App. C at 1.27

Dr. Cramblett evidently chose the

second option in that a- grievance

committee was convened to review Dr.

Carey's charges. In a report dated

July 24, 1980, the committee, composed

of five doctors, found that there was

no basis for the charge that Dr. Yashon

was an incompetent surgeon, that there

was no evidence to support the

contention that Dr. Yashon was

responsible for the disruptive

atmosphere within’ the Division of

Neurologic Surgery, and that there was

no validity to the charge that Dr.

Yashon was responsible for the

- 133 -

resignation of residents and for

difficulty in resident recruitment.

App. C at 4. The grievance committee,

moreover, found that Dr. Yashon _ had

been unfairly harassed by Drs. Carey

and Hunt and recommended’ that _. Or.

Yashon be restored to all his rights

and privileges aS a member of the

attending medical staff of University

Hospitals. Id. Despite the request of

Dr. Tzagournis, the then Associate Dean

of the College of Medicine, that the

grievance committee supply him with

additional information to support its

findings, App. C at 5, the grievance

committee merely reaffirmed its

findings and conclusions, while noting

that “[a]J1ll evidence was obtained and

reviewed impartially and objectively as

well as in complete confidence.” App.

C at 6.28

- 134 -

On September 30, 1980, Dr.

Tzagournis notified Dr. Yashon of his

decision as to the charges raised by

Dr. Carey. Having reviewed the

recommendations of the Investigation

Committee and of the Grievance

Committee, Dr. Tzagournis determined

that

[t]he preponderance of

evidence indicates that your

activities and professional

conduct are considered to be

disruptive to your clinical

division and University

Hospitals. Numerous

incidents over several years

caused considerable concern

to members of the Medical

Staff, the non-M.D. staff of

University Hospitals, and the

Administration. In fact, the

training program in

Neurosurgery was seriously

jeopardized by some of these

actions.

It se of course, very

difficult to assign a primary

responsibility for each of

many incidents, occurring in

a milieu of chronic conflict

over such an extended period

of time. However, I am

- 135 -

Dita

Pe ae

a

Ca

.

:

P ; 7

a

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<a

a

- ae

_\

persuaded that you are

responsible for much of the

conflict and disruption which

has occurred.

My task is to decide whether

grounds for corrective action

are substantiated. In view

of the conflicting

recommendations and opinions

available to me, I conclude

that they are not sufficient

to justify a curtailment or

reduction of your. clinical

privileges but they are

sufficient to justify a

strong reprimand for your

disruptive behavior and

activities. Subject to the

provisions of the corrective

procedures of University

Hospitals, this reprimand

will become a part of your

file.

App. C at 7. Pursuant to Article VI of

the constitution, bylaws, rules’~ and

regulations of the medical staff of

University Hospitals, Dr. Yashon

appealed the reprimand to Dr.

Cramblett, asking that the reprimand be

voided and, if not, that the reprimand

- 136 -

be further appealed pursuant to Article

Vi. App. C at 8B.

On October 22, 1980, Dr.

Tzagournis, the then Acting Dean of the

College of Medicine, wrote to Dr.

Yashon and informed him that, pursuant

to his request to Dr. Cramblett, the

Executive Committee would conduct a

hearing on November 2, 1980 to hear Dr.

Yashon's appeal of the reprimand. App.

C at 9. Dr. Tzagournis made clear that

the Executive Committee could confirm,

modify, or reject his decision to issue

a reprimand; he also _ specified the

charge that would be before the

Executive Committee:

The charge against you is

that your activities and

professional conduct over the

past five years have violated

the standards of the medical

staff and have been

disruptive to your clinical

division and University

Hospitals. Your conduct on

numerous occasions have

caused concern to members of

the Medical Staff, the

non-M.D. staff and the

Administration of University

Hospitals.

Id, The letter specified fifteen more

specific charges to support this

general charge; these fifteen charges

had appeared in Dr. Carey's original

charges of October 27, 1979, see App. C

at 3(C) and supporting documents, and

many of them were subsequently

reiterated in Dr. Carey's August 14,

1981 letter to Dr. Tzagournis, see

App. B, Attachment IIl. When Dr.

Yashon elected to withdraw his appeal

of the reprimand, the Executive

Committee did not hold its hearing.

Yashon II, Plaintiff's Motion for

Preliminary Injunction at 13.29

In addition, the Medical Staff

Administrative Committee had knowledge

of a third charge against Dr. Yashon

that had been the subject of a previous

disciplinary hearing. On May 3l, 1980,

Dr. Carey had notified Dr. Yashon that,

because of the events surrounding the

Brumfield incident,29 he was suspending

his admission and operating room

privileges. Dr. Yashon appealed this

decision to the Executive Committee of

the Medical Staff of University

Hospitals. On June 26, 1980, Dr.

Cramblett notified Dr. Yashon that he

had received the written report of the

findings and decision of the Executive

Committee;31 he advised Dr. Yashon that

[t]Jhis letter constitutes

your official notice, » *

of my acceptance of the

decision of the Executive

Committee. Thus, you are

hereby notified that the

Summary suspension of your

admission and operating room

privileges invoked May 31,-

1980 is no longer effective,

- 139 -

and that your privileges are

hereby reinstated.

See Yashon II, Exhibits 23, 24, 25,

appended to Dr. Yashon's affidavit in

support of plaintiff's motion for

preliminary injunction.

Finally, the Medical Staff

Administrative Committee had notice in

the record before it that other charges

by Dr. Hunt against Dr. Yashon had been

reviewed by a committee of four

doctors. In its letter of March 13,

1979, the committee, composed of four

doctors (three members and one

alternate) reported to Dr. Carey that

it had considered two charges, one of.

which was that Dr. Yashon had engaged

in “improper and presumably illegal

conduct" by removing a note written by

Dr. Hunt from a patient's chart. App.

C at 3(C)(4). As to this charge, the

- 140 -

committee noted that “[wle do believe

this is improper’ conduct, mF the

removal of a note from the _ patient

record, but do not feel that we are in

any position to rule on the legality of

this matter.” 76. Apart from the

report of this committee, there is no

indication in the record as to whether

any further action was taken as_ to

these charges by Dr. Hunt. 32

4. Decision of the Committee

After the conclusion of the

hearing, the members of the Medical

Staff Administrative Committee

deliberated. The minutes of the

meeting state:

The open hearing adjourned at

approximately 5:30 p.m. At

5:45 p.m., members of the

Committee reconvened to

deliberate and vote on the

- 141 -

issue before the Committee.

Dr. Carey, although a member

of the Committee, was not

present during the

deliberations and voting.

Dr. Tzagournis and Dr. Yashon

also were not present. The

deliberations and voting were

not recorded by the court

reporter. After discussion

among the members present, a

motion was made and seconded

that Dr. Yashon not be

reappointed to the Attending

Staff of The Ohio State

University Hospitals. Voting

was done by secret ballot.

As Chairman of the Committee,

Dr. Whitcomb did not vote.

The votes were counted by two

members of the Committee.

The Committee members’ voted

13 to 4 in support of the

motion, and thus, voted to

reject Dr. Yashon's’' request

for reappointment to the

Attending Staff of The Ohio

State University Hospitals.

App. B, Attachment IV to the September

3, 1981 letter of Dr. Whitcomb. Though

the decision of the committee was

clear, the minutes do not reflect any

specific findings of the committee as

to any of the charges in Dr. Carey's

- 142 -

August 14, 1981 letter to Dr.

Tzagournis.

5. Administrative Rules Governing

Essential to an understanding of

the due process questions raised by Dr.

Yashon is a review of the

administrative structure of University

Hospitals and of the bylaws that have

been approved by the Board of Trustees

of the Ohio State University

[hereinafter Board of Trustees].

Dr. Yashon's counsel has filed an

affidavit in which he explains:

On November 30, 1979, the

Board of Trustees of The Ohio

State University, by amending

Section 3335-1-03 of the Ohio

Administrative Code, created

the University Hospitals

Board; the function of said

University Hospitals Board is

to govern The Ohio State

University Hospitals,

including appointments and

reappointments to the medical

staff. Attached hereto is a

true and complete copy of the

bylaws of the University

Hospitals Board of The Ohio

State University, which

bylaws comprise Chapters

3335-93 through 3335-103 of

the Ohio Administrative

Code. Bylaws of the said

University Hospitals Board

were first approved by a

resolution of the Board of

Trustees of The Ohio State

University adopted on May 2,

1980.

Janata Affidavit at 47.

Since May 2, 1981, when the Board

of Trustees approved the bylaws of the

University Hospitals Board, the

University Hospitals Board has_ been

vested with the responsibility for

“(aJpproval of medical and _ dental

appointments, clinical privileges, and

disciplinary actions upon the

recommendation of the appropriate

official, subject where required to

- 144 -

final action of the Ohio State

University board of trustees." Section

3335-93-02(F) of the Ohio

Administrative Code.33 In making its

determination as to whether to appoint

a particular physician to the attending

medical staff, the University Hospitals

Board can rely on the recommendations

of two committees established under its

bylaws, that is, the Joint Conference

Committee and the Medical Staff

Administrative Committee. 34

The bylaws of the University

Hospitals Board delineate the minimal

requirements for membership on the

attending medical staff as well as the

duration of an appointment to the

medical staff:

Upon recommendation of the

medical staff and in

accordance with the medical

staff bylaws, the board may

appoint faculty members’ who

- 145 -

are graduates of recognized

medical and dental _ schools,

meeting the qualifications

prescribed in the medical

staff bylaws, to membership

on the medical staff of the

hospitals and shall grant

Clinical privileges to such

persons, subject to

ratification of the Ohio

State University Board of

Trustees. Appointment to the

medical staff carries with it

full responsibility for the

treatment of individual

hospital patients subject to

such limitations as may be

imposed by the board or the

bylaws, rules, and

regulations of the medical

staff. Appointments to the

medical f h rc

Section 3335-101-05 of the Ohio

Administrative Code [emphasis added].

Thus, it is clear that an appointment

Or reappointment to the attending

medical staff is for one year; these

- 146 -

bylaws do not provide for any automatic

reappointment to the attending medical

staff. The language of this section,

moreover, is permissive; that is, there

is no requirement that the University

Hospitals Board appoint (or reappoint)

a physician to the attending medical

staff despite the fact that he meets

the minimal requirements of Section

3335-101-05 and any qualifications

prescribed in the bylaws of the medical

staff.

The Court's resolution of the

pending case is rendered more difficult

by the fact that, to date, neither the

University Hospitals Board nor the

Board of Trustees has approved bylaws

for the medical staff of University

Hospitals, Janata Affidavit at 8,

despite the fact that such approval is

mandated by Section 3335-101-04 of the

- 147 -

Ohio Administrative Code.35 Thus,

absent any approved bylaws of the

medical staff, the only rules governing

qualifications for membership on _ and

appointment (and reappointment) to the

attending medical staff are those

contained in Section 3335-101-05.36

Finally, the bylaws of the

University Hospitals Board seek to

define the relationship between

University Hospitals and the health

sciences, academic and research

programs of The Ohio State University:

The health sciences colleges

of the university carry out a

Significant portion of their

educational and research

activity in university

hospitals. Alth h h

h n n

specific responsibilities for

academic programs, it shall

lend its best efforts to

assure that the programs of

the health sciences colleges

are effectively supported in

collaboration with the

hospitals patient care

- 148 -

programs. The vice president

for health sciences shall be

charged with maintaining an

effective liaison between the

health sciences colleges and

the hospitals board to assure

excellence in both academic

and patient care programs.

Section 3335-99-01 of the Ohio

Administrative Code [emphasis added].

These bylaws, at least, make clear that

the University Hospitals Board does not

have any “specific responsibilities"

for academic programs at The Ohio State

University, including those of the

College of Medicine.

G

The defendants have now moved the

Court to vacate the consent’ order,

insofar as it provided for Dr. Yashon's

continued membership on the attending

medical staff at University Hospitals,

- 149 -

and for summary judgment on Dr.

Yashon's claims in the complaint. The

defendants believe that the September

1, 1981 hearing of the Medical Staff

Administrative Committee afforded Dr.

Yashon all of the procedural due

process to which he was entitled; they

urge the Court, therefore, to vacate

the consent order and to grant summary

judgment, thus allowing to stand the

decision of the Medical Staff

Administrative Committee not to

reappoint Dr. Yashon to the attending

medical staff of University Hospitals.

Dr. Yashon has filed a memorandum

contra in which he urges the Court to

deny the defendants' motion for a

number of reasons. Dr. Yashon argues

(1) that the principles of res judicata

and collateral estoppel preclude the

defendants from denying his application

- 150 -

for reappointment because of matters

that were the subject of prior

disciplinary proceedings; that the

format of the Medical Staff

Administrative Committee hearing did

not comply with this Court's

instructions; that the hearing violated

his rights to substantive © and

procedural due process; that the

defendants have failed to comply with

the bylaws of the University Hospitals

Board; and that there are genuine

disputes as to material facts which

renders summary judgment

inappropriate. The Court will now

direct its attention to each of these

matters.

1. Res Judicata and Collateral Estoppel

As the Court has previously

explained, the charges that were

considered by the Medical Staff

Administrative Committee included some

that were specifically considered by

previous disciplinary hearings. The

prior disciplinary hearings had

considered the charges delineated in

Dr. Carey's October 27, 1979 letter to

Dr. Cramblett and the matters that had

resulted in Dr. Carey's May 31, 1980

summary suspension of Dr. Yashon's

admission and operating room

privileges. The first of these

disciplinary proceedings had not

resulted in the curtailment or

termination of Dr. Yashon's privileges

as a member of the attending medical

staff at University Hospitals;

Similarly, the second Gisciplinary

hearing resulted in a finding that

there was not sufficient cause for Dr.

- 152 -

Carey's summary suspension of Dr.

Yashon's admission and operating room

privileges.

Citing United States Vv. Utah

nstr ion n Minin ,; gee Bie.

394 (1966), Dr. Yashon contends that

the principles of res judicata and

collateral estoppel apply to the prior

disciplinary proceedings and precluded

the Medical Staff Administrative

Committee from considering the facts

that were the subject of these prior

proceedings:

The consideration by the

Medical Staff Administrative

Committee of incidents which

were the bases of the _ two

prior disciplinary

proceedings clearly violated

the doctrine of res judicata

and collateral estoppel. In

both of these prior

proceedings and in the 1981

proceeding the parties were

identical: defendant Carey,

who was prosecuting plaintiff

Yashon, plaintiff Yashon and

the College of Medicine. In

- 153 -

both of these prior

proceedings and in the 1981

proceeding the issues’ were

the same: did certain

incidents occur, and if so,

did those incidents justify a

curtailment or suspension of

plaintiff Yashon's medical

staff privileges. In both of

those prior proceedings and

in the 1981 proceeding

various bodies of the College

of Medicine were acting in a

judicial capacity. [Citation

omitted.] Because both prior

disciplinary proceedings

terminated without a

reduction or suspension of

plaintiff Yashon's medical

staff privileges, the

incidents litigated in those

prior proceedings may no

longer be used by defendant

Carey and the College of

Medicine to strip plaintiff

Yashon of such privileges.

The Medical Staff

Administrative Committee in

effect reheard the two prior

disciplinary proceedings.

The principle of finality of

administrative decisions,

which principle is

represented by the twin

doctrines of res judicata and

collateral estoppel, bars

defendants from again

considering the facts which

were the subject of the prior

proceedings. * * *

- 154 -

Plaintiff David Yashon, M.D.'S

Memorandum in Opposition to Defendants'

Motion to Vacate Consent Order and for

Summary Judgment at 15. ~-

As an initial matter, the Court

notes that United States v. Utah

Construction and Mining Co., supra, and

the other cases cited by Dr. Yashon,

Pettus v. American Airlines, Inc., 587

F.2d 627 (4th Cir. 1978); A. Duda &

n erativ Assn, 7. United

States, 495 F.2d 193 (5th Cir. 1974);

International Wire Vv. Local 38,

International Brotherh f El rical

Workers, 475 F.2d 1078 (6th Cir. 1973),

all involved the question of whether

"judicial proceedings may be precluded

by administrative decision.” Wright,

Miller & Cooper, Federal Practice and

Pr re: Jurisdiction §4475 at

764-65 [emphasis added]. This is

- 155 -

fundamentally different from the

question posed by the facts in this

case, that is, whether the principles

of res judicata and collateral estoppel

apply to successive proceedings before

different administrative groups at

University Hospitals.

Based upon the record befcre it,

the Court is of the ‘opinion that the

principles of res judicata and

collateral estoppel did not bar _ the

Medical Staff Administrative Committee

from considering charges that had

previously been considered by other

disciplinary bodies. This

determination rests upon a number of

factors. First, the question presented

at the prior disciplinary hearings,

that is, whether Dr. Yashon should be

dismissed from the attending medical

staff for disciplinary reasons, differs

= - 156 -

from that presented to the Medical

Staff Administrative Committee, that

is, whether Dr. Yashon should _ be

reappointed, for the year beginning

July 1, 1981, to the attending medical

staff. See Shulman v. Washington

H ital nter, 319 F.Supp. 252, 254

(D. D.C. 1970).37 Secondly, as to the

charges in Dr. Carey's October 27, 1979

letter to Dr. Cramblett, the record

demonstrates that these charges were

not fully litigated; a full

consideration by the Executive

Committee of these charges and of the

reprimand by Dr. Tzagournis was

precluded by Dr. Yashon's abandonment

of his appeal.38 Finally, some of the

Charges considered by the Medical Staff

Administrative Committee were not the

subject of the two prior disciplinary

proceedings referred to by Dr. Yashon.

See, e.g., App. B, Attachment III

(charges 2(a), 3, 5), though two of

these charges (charges 2(a) and 5) were

the subject of prior disciplinary not

referred to by Dr. Yashon.

This conclusion, that the Medical

Staff Administrative Committee was

permitted to hear certain charges

against Dr. Yashon despite the _ fact

that these charges were the subject of

prior disciplinary proceedings, is, the

Court believes, in accord with the law

of the State of Ohio. In a number of

decisions dealing with the principles

of res judicata and collateral

estoppel, the Ohio Supreme Court has

cited with approval the Restatement of

the Law, Judgments, Whitehead Vv.

General Telephone Co., 20 Ohio St.2d

108, 112, 114 (1969); Trautwein v.

Sorgenfrei, 58 Ohio St.2d 493, 495

- 158 -

(1975); City of Columbus v. nion

Cemetery Assn., 45 Ohio St.2d 47, 51

(1976), as well as the tentative drafts

of the Restatement of the Law 2d,

Judgments. Hicks v. De La Cruz, 52

Ohio St.2d 71, 74 (1977).

Section 131 of the Restatement of

the Law 2d, Judgements (Tent. Draft

No. 7 [1980]) at 30, provides that

(1) Except as stated in

subsections (2), (3),

and (4), a valid = and

final adjudication by an

administrative tribunal

has the same effects

under the rules of res

judicata, subject to the

same exceptions and

qualifications, as a

judgment of a court.

Comment a explains that this’ rule

“applies when a final determination by

an administrative tribunal is invoked

as the basis of claim or issue

preclusion in d subsequent action,

whether that subsequent action is

another proceeding in the - same

administrative tribunal or is a

proceeding in some other administrative

or judicial tribunal.” Id. at 32. And

comment b further delineates the

situations to which section 131 applies:

Where - an administrative

agency is engaged in deciding

specific legal claims or

issues through a_ procedure

substantially similar to

those employed by courts, the

agency is in substance

engaged in adjudication.

Decisional processes using

procedures whose formality

approximates those of courts

may properly be accorded the

conclusiveness that attaches

to judicial judgments.

16. S& 23.

Even were the Court to hold that

Drs. Tzagournis and Cramblett were

acting in adjudicative capacities when

they acted on the recommendations of

the grievance committee and of the

- 160 -

Executive Committee, respectively,

section 131 would still not be of any

help to Dr. Yashon. As the court has

previously pointed out, the defendants

can rightfully apply different

standards to the question of whether a

physician's hospital privileges, once

granted, should be revoked and the

question of whether a physician's

application for annual appointment

should be denied. Therefore, with

respect to the September | 1981

hearing of the Medical Staff

Administrative Committee, section 131

does not mandate the application of

claim preclusion. As to issue

preclusion, section 131 may mandate

that preclusive effect be given to the

findings of fact in the earlier

disciplinary proceedings, see comment

b, id. at 36; but both the September

- 161 -

30, 1980 letter of Dr. Tzagournis to

Dr. Yashon and the June 26, 1980 letter

of Dr. Cramblett fail to include any

findings of fact as to which preclusive

effect can appropriately be given.

For the above reasons, the Court

finds that Dr. Yashon's argument that

the principles of res judicata and

collateral estoppel barred the Medical

Staff Administrative Committee from

considering charges evaluated by prior

disciplinary proceedings to be without

merit.

2. Failure to Comply with the Court's

Directives

Dr. Yashon also contends that the

September i, 1981 hearing of the

Medical Staff Administrative Committee

did not comply with the directives

- 162 -

given by the Court to counsel for the

parties on July 17, 1981. Accepting as

true the assertions in the Janata

Affidavit, it is clear that the Court

did not

suggest, indicate or order

that the Medical Staff

Administrative Committee

conduct a "due process”

hearing on plaintiff Yashon's

application for reappointment

to the medical staff, at

which hearing witnesses could

be called and examined.

Instead, {the Court]

suggested that plaintiff

Yashon and defendant Carey

each make a presentation to

the Medical Staff

Administrative Committee

concerning plaintiff Yashon's

application for reappointment

to the medical staff.

Janata Affidavit at Y¥3. It is also

Clear that the Court did not enter an

order precluding Dr. Carey from calling

witnesses at the September 1, 1981

hearing.

463 -

Even if the Court were of the

opinion that the defendants failed to

comply with the Court's “suggestions,”

Dr. Yashon cites no authority for the

proposition that this failure, in and

of itself, would justify the Court's

disregard of the decision of the

Medical Staff Administrative

Committee. If the procedures employed

by the Medical Staff Administrative

Committee did not otherwise deprive Dr.

Yashon of his constitutional rights, 29

a question the Court has yet to

examine, the defendants’ failure to

comply with the Court's "“suggestions"

would not render the September 1, 1981

oe

hearing unconstitutional. Cf. United

States v. Caceres, 440 U.S. 741 (1979).

3. Substantive and Procedural Due

Process

Dr. Yashon has proffered a number

of arguments to support his view that

the September 1, 1981 hearing of the

Medical Staff Administrative Committee

did not accord him substantive’ and

procedural due process as required by

the Fourteenth Amendment to the

Constitution. Assuming that Dr. Yashon

did, in fact, have a liberty or

property interest pursuant to which the

defendants were obliged to comply with

the mandates of the Fourteenth

Amendment, the Court will first address

these arguments.

At the hearing of the Medical Staff

Administrative Committee, Dr. Carey

explained that he would present

testimony and documentary evidence to

- 165 -

Support his charges that Dr. Yashon had

engaged in conduct that rendered him

unfit to be reappointed to the

attending medical staff of a teaching

hospital. As the Court has previously

explained, there was testimony at the

hearing as to certain charges (1l(e);

2(c); 2(d); 5) which Dr. Yashon either

did not deny or as to which Dr. Yashon

acknowledged that he had engaged in the

conduct but denied that the conduct

itself was improper. As to a number of

other charges (1(d); 2(a); 3; 9; 13),

there was sufficient evidence based

upon which the Medical Staff

Administrative Committee could’ find

that the charges were meritorious.

Finally, there were a number of charges

(2{e)3 1¢£)3 8; 14) as to which

sufficient evidence was presented to

Support a finding that the charges were

- 166 -

meritorious; at the same time, the

nature of these charges were such that,

had - Yashon been given the

opportunity, he may have been able to

present rebuttal testimony or to lessen

the seriousness of the alleged charges.

In determining whether there was

sufficient evidence before the Medical

Staff Administrative Committee to

support the above charges, the Court

will not consider the charges de novo

and will not “substitute its own

judgment for that of the experts who

sat in judgment on plaintiff's

qualifications to continue to practice

Surgery.” Klinge v. Lutheran Charities

Association of St. Louis, 523 F.2d 56,

60 (8th Cir. 1975). As explained by

the Eighth Circuit,

[w]hile plaintiff was

entitled to judicial review

of the administrative action

~ 167--

that was finally taken

against him, he was not

entitled to a trial de novo

as to his competency to

remain on the staff at

Lutheran. The judicial

inquiry available to him was

limited to a consideration of

whether his ultimate removal

from the staff involved

deprivations of procedural or

substantive rights guaranteed

by the fourteenth amendment.

Id.

Because of this Court's obvious

lack of expertise in deciding whether

the allegations of misconduct, if

proven, rendered Dr. Yashon unfit to be

reappointed to the attending medical

staff, “the decision of a hospital's

governing body concerning the granting

of hospital privileges is to be

accorded great deference." Laje vv.

R. E. Thomason General Hospital, 564

F.2d 1159, 1162 (Sth Cir. 1977), cert.

denied, 437 U.S. 905 (1978). Such a

- 168 -

view

with

Fift

is, this Court believes, in accord

the standards articulated by the

h Circuit:

crmeors No court should

substitute its evaluation of

such matters for that of the

Hospital Board. It is the

Board, not the court, which

is charged with the

responsibility of providing a

competent staff of doctors.

The Board has chosen to rely

on the advice of its Medical

Staff, and the court cannot

Surrogate for the Staff in

executing this

responsibility. Human lives

are at stake, and the

governing board must be given

discretion in its’ selection

so that it can have

confidence in the competence

and moral commitment of its

staff. The evaluation of

professional proficiency of

doctors is best left to the

specialized expertise of

their peers, subject only to

limited judicial

Surveillance. The court is

charged with the narrow

responsibility of assuring

that the qualifications

imposed by the Board are

reasonably related to the

operation of the hospital and

fairly administered. In

short, so long as staff

- 169 -

nelectilonn are administered

with fairnenn, geared by a

rationale compatible with

hompital renponsibility, and

unencumbered with irrelevant

Comumiderationn, a court

hhould not interfere, Courts

Hust not attempt to take on

the encutcheon of Caduceus.

Lona v. Board of Managers of the Val

Veide Memurial Hospital, 437 F.2d 173,

bry (Sth Cit. 1971). Accord, Woodbury

v McKinnon, 447 F.2d 839, 845 (5th

on LQ71); Klinge Vv. Lutheran

Charities Asseciation of St. Louis,

m™

mupia;: haie vv. R. E,. Thomason Gener

Hospital, supra. 79

in this case, the Medical Stafé

Administrative Committee was presente

with suftticient evidence that could

stity both ats finding that cert3inz

cr ses against Dr Yasnonr were

eritorious and its resultant decisicss

that Dx Yashon shouid not “=

reappointed to the attending medical

staff. Despite the fact that the

charges did not include allegations

that Dr. Yashon was incompetent as a

surgeon,41 the Court will not second

guess the implicit conclusion of the

Medical Staff Administrative Committee

that the charges, if proven, would

render a physician unfit for membership

on the medical staff. Further, even

though the charges considered did not

allege any conduct violative of

presently promulgated bylaws of the

University Hospitals Board or of any

other administrative rules governing

the conduct of members of the medical

staff, the Court cannot, upon a review

of the record, conclude the Medical

Staff Administrative Committee, in

evaluating the charges of misconduct,

applied professional and ethical

standards that were not reasonably

related to the operation of the

teaching hospital. See Sosa v. Board

of Managers of the Val Verde Memorial

Hospital, 437 F.2d at 176-77; Klinge v.

Lutheran Charities Association of St.

Louis, supra.

In terms of procedural due process,

the defendants maintain that Dr. Yashon

“was entitled to reasonable notice of

the charges against him and ae fair

opportunity to be heard with respect to

those charges before a panel of fair

minded doctors. However, he was not

entitled to a full blown judicial

trial.* Klinge v. Lutheran Charities

Association of St. Louis, 523 F.2d at

60, citing Duffield v. Charleston Area

Medical Center, Inc., 503 F.2d 512 (4th

Cir. 1974), affirming 361 F.Supp. 398

(S.D. W.Va. 1973); Christhilf v. The

Annapolis — Emergency Hospital

Association, Inc., 496 F.2d 174 (4th

Cis. 1974); Woodbury Vv. McKinnon,

Supra. Dr. Yashon contends that he was

not afforded even these minimal due

process protections and that, morever,

because of the drastic consequences of

defendants’ action in denying his

application for reappointment, he was

entitled to even greater due process

rights.

There is no question but that the

notice of the time and place of the

hearing to consider Dr. Yashon's

application for reappointment to the

attending medical staff had to be

provided sufficiently in advance to

permit him to prepare his defense to

the charges. Suckle v. Madison General

Hospital, 362 F.Supp. 1196 (W.D. Wis.

1973), aff'd on other grounds, 499 F.2d

- 173 -

1364 (7th Cir. 1974); Christhilf v. The

Annapolis Emergency Hospital

Association, Inc., supra. Further, the

charges to be considered at the hearing

must be sufficiently specific as _ to

allow a meaningful opportunity to

prepare a defense. Poe v. Charlotte

Memorial Hospital, Inc., 374 F.Supp.

1302, 1310 (W.D. N.C. 1974); uckle v.

Madison General Hospital, 362 F.Supp.

at 1211-1212. Finally, a number of

cases have recognized a= physician's

right to prehearing discovery.

Christhilf v. The Annapolis Emergency

Hospital Association, Inc., 496 F.2d at

180; Suckle Vv. Madison General

Hospital, 362 F.Supp. at 1212.

Based on the record before it, the

Court finds that Dr. Yashon's

constitutional objections as to the

adequacy of the notice of the time and

- 174 -

place of the hearing, the specificity

of the charges considered by the

Medical Staff Administrative Committee,

and the failure of the defendants to

afford him pre-hearing discovery are

without merit. This conclusion rests

on a number of factors. Beginning

almost three weeks prior to the

September 1, 1981 hearing, Dr. Yashon

was sent a number of notices concerning

the scheduling, format of, and charges

to be heard at the hearing before the

Medical Staff Administrative

Committee. As to the specificity of

the charges in Dr. Carey's letter of

August 14, 1981 to Dr. Tzagournis, Dr.

Yashon himself admits that there are

many Similarities between these charges

and those listed in Dr. Carey's letter

of October 27, 1979; Dr. Yashon also

expressly admits that most of the

- 3% -

testimony elicited at the September 1,

198] hearing involved the same

incidents that were the subject of the

two prior disciplinary proceedings.

Plaintiff David Yashon, M.D.'S

Memorandum in Opposition to Defendants’

Motion to Vacate Consent Order and for

Summary Judgment at 14.

The Court has-7~ previously noted,

moreover, that the charges in the

August 14, 1981 letter were very

Similar to those in Dr. Tzagournis'

October 22, 1980 letter to Dr. Yashon

and that several of the charges were

also the subject of two prior

Gisciplinary proceedings not referred

to by Dr. Yashon in his memorandum. In

addition, the only documentary evidence

presented by Dr. Carey at the September

1, 1981 hearing had been available to

Dr. Yashon as part of the scheduled,

~ 176 -

but aborted, November 20, 1980 hearing

of the Executive Committee. Under

these circumstances, Dr. Yashon's prior

familiarity with virtually all of the

charges and documentary evidence,

coupled with his able

cross-examination, renders meritless

any Claim that he was prejudiced by the

notice, the content of the charges, or

his inability to conduct’ pre-hearing

discovery.42

Dr. Yashon maintains, moreover,

that the hearing was constitutionally

defective in a number of other

respects: he was’ entitled to the

presence and active participation of

counsel; he was denied the right to

call witnesses and to present evidence;

and he was entitled -to ae written

decision from the Medical Staff

Administrative Committee detailing its

* 397 -

reasons for denying his application for

reappointment and describing the

evidence it relied upon in reaching its

decision.

In Mathews v. ldri » 424 VY.8:

319, 335 (1976), the Supreme Court

delineated the various factors’ that

must be considered in determining what

process is due in a particular case:

First, the private interest

that will be affected by the

official action; second, the

risk of an erroneous

deprivation of such interest

through the procedures’ used,

and the probable value, if

any, of additional or

substitute procedural

safeguards; and finally, the

Government's interest,

including the function

involved and the fiscal and

administrative burdens that

the additional or substitute

procedural requirements would

entail.

Despite the fact that two-thirds of Dr.

Yashon's medical practice is conducted

at another hospital in the City of

~ 178 -

EE —— eS

Columbus, App. A at 291, the Court

fully recognizes that Dr. Yashon has

substantial personal interests in being

reappointed to the attending medical

staff of University Hospitals; these

personal interests include maintaining

his income, protecting his professional

reputation, and maintaining his

participation on the medical staff of a

teaching hospital. As to the third

factor identified in Mathews v.

Eldridge, Supra, the Ninth Circuit

Court of Appeals has eloquently

described 3 hospital's varied and

important interests in quickly

resolving problems as to medical staff

membership:

The Hospital's interest is

somewhat more complex. Like

any government agency it has

a strong interest in being

able to deal quickly and

inexpensively with personnel

matters in order to promote

- 199 -

I

efficiency and economy in

administration. But because

the government agency here is

a hospital and plaintiff

Stretten is a professional,

the employer's interest is

more particularized than in

the ordinary case. As a

hospital the employer has a

special interest in

protecting its patients from

treatment by one who is

professionally incompetent.

The Survival of patients

often depends upon the

presence of competent

physicians. The interest of

the hospital in enlarging the

prospects of Survival of

patients weighs in favor of

due process procedures which

will minimize the risk of the

continued employment of an

incompetent doctor, so long

as these procedures are

consistent with notions of

fundamenta] fairness. In a

sense this is the reverse

side of the Goldberg v.

Kelly, 397 U.S. 254, 90 S.Ct.

1011, 25 L.Ed.2G 287 (1970),

coin. In Goldberg the danger

of lack of survival was borne

by the plaintiff whose rights

were terminated while here

the risk is borne by the

patients entrusted to the

Gefendant's care.

The Hospital's interest is

unusual in another respect.

- 180 -

Dr. Stretten is a

professional whose position

requires that he work in

close coordination with other

medical personnel. A

hospital staff is highly

interdependent, both in the

sense that one doctor depends

upon the professional skill

of other doctors and in the

sense that the collegial

nature of the body makes

tolerable | working

relationships an absolute

prerequisite to effective

staff performance. The

necessity for a healthy

working relationship is a

function of the nature of the

work to be done.

Incompatible workers on

farms, ranches, or in certain

types of factories can

function reasonably well

although even there it is

doubtful that full efficiency

is achieved. Effective

performance by physicians on

the staff of a hospital,

whose tasks require a high

degree of cooperation,

concentration, creativity,

and the constant exercise of

professional judgment,

requires a greater degree of

compatibility. The Hospital

must recognize this

necessity. This enhances its

interest in quickly dealing

with incompetence and

debilitating personal

- 181 -

frictions. In emphasizing

the hospital's and thus the

state's interest in harmony,

we hasten to assert that we

are not drawing the line

between professions and

nonprofessionals for this

purpose. In fact, we believe

there is no clear line,

rather only a continuum along

which the stcte's interest in

expeditious settlement of

such problems attenuates.

Stretten v. Wadsworth Veterans

Hospital, 537 F.2d 361, 368 (9th Cir.

1976) [footnote omitted). Thus, the

only task remaining with respect to the

three procedural irregularities claimed

by Dr. Yashon is to assess “the risk of

an erroneous decision prejudicial to

plaintiff under the procedures employed

and the probable reduction of error

which might result from a more

elaborate .. . set of procedures.” Id,

As to Dr. Yashon's claim that he

was entitled to the presence and active

- 182 -

participation of counsel at the

September i 1981 hearing of the

Medical Staff Administrative Committee,

the Court cannot say that his desire

for the assistance of counsel outweighs

the university's interest in avoiding a

full fledged trial. Frumkin v. Board

of Trustees, Kent State University, 626

F.2d 19 (6th Cir. 1980); Woodbury v.

McKinnon, supra. But see Garrow v.

Elizabeth General Hospital _and

Dispensary, 79 N.J. 549, 401 A.2d 533,

5941-42 (1979); Silver v. Castle

Memorial Hospital, 53 Hawaii 475, 497

P.2d 564, 571-72, cert, denied, 409

U.S. 1048 (1972).43 Where, as here,

the record shows that Dr. Yashon fully

participated at the hearing, that he

was conversant with all of the charges

made by Dr. Carey, and that he was

competent at cross-examination, the

- 183 -

ait

$

Court concludes” that it is unlikely

that the presence and participation of

counsel on Dr. Yashon's' behalf would

have provided a procedure less likely

to have resulted in erroneous findings

of fact.

Although the courts have recognized

the potential importance of counsel in

a’ leviating the risk of erroneous

factual determination in criminal

trials, see Powell v. Alabama, 287 U.S.

45 (1932), and in welfare benefits

pretermination hearings, see Goldberg

v. Kelly, 397 U.S. 254 (1970), the

hearing in this case was before

physicians and involved charges of

misconduct by another physician; under

these circumstances, the Court will not

equate Dr. Yashon's situation with that

of a welfare recipient confronted with

an administrative hearing or of a

- 184 -

defendant confronted with ae criminal

trial.

Dr. Yashon's two remaining

procedural complaints, however, carry

more weight. On the record before the

Court, it is clear that Dr. Yashon did

not, prior to the hearing of the

Medical Staff Administrative Committee,

have any notice that Dr. Carey planned

to call witnesses; it is also clear

that the Medical Staff Administrative

Committee considered the evidence and

rendered a decision without giving Dr.

Yashon an opportunity to call his own

witnesses. 44 Some courts have

recognized that certain types of

hearings involving a physician's

appointment to ae hospital's medical

staff need not provide for the calling

of witnesses. a Woodbury Vv.

McKinnon, Supra; Christhilf v. The

- 185 -

Annapolis Emergency Hospital

Association, Inc., 496 F.2d at 179

Ms Be Other courts have simply held

that the procedures afforded the

physician by the hospital complied with

the due process clause; although the

hospitals accorded the physician the

right to call witnesses on his behalf,

the court’s opinions did not hold that

this was constitutionally mandated.

a TF Duffield v. Charleston Area

Medical Center, Inc., 503 F.2d at 519;

Hoberman v. Lock Haven Hospital, 377

F.Supp. 1178, 1188-89 (M.D. Pa. 1974).495

Similarly, the law as to whether

the Medica! Staff Administrative

Committee was required to render a

written deci. ion specifying the reasons

for its decision is also less’ than

clear. The Supreme Court has, in 4a

variety of situations, required that

the fact finders render a written

Statement as to the evidence relied

upon and the reasons for the decision.

Goldberg v. Kelly, 397 U.S. 254, 271

(1970); Morrissey v. Brewer, 408 U.S.

at 487, 489; Wolff v. McDonnell, 418

U.S. 539, 563 (1974). But see,

Greenholtz v. Inmates of the Nebraska

Penal and Correctional Complex, 442

U.S. 1, 15-16 (1979); Connecticut Board

of Pardons v. Dumschat, U.S. ,

49 U.S.L.W. 4711, 4713 and n. 6 (filed

June 17, 1981). Cf. Board of Curators

of the University of Missouri v.

Horowitz, 435 U.S. 78, 85 (1978); Goss

v. Lopez, 419 U.S. 565, 581 (1975). In

this case, the minutes of the September

he 1981 hearing reflect only the

decision of the committee, that is,

that Dr. Yashon should not be

reappointed to the attending medical

* 197 «

staff; there is no indication as to

which of Dr. Carey's charges was

meritorious or of any of the evidence

relied upon in finding certain charges

meritorious. Though the Court, based

upon its independent review of the

record, finds that there was sufficient

evidence to support certain of the

charges, Dr. Yashon iS _ correct in

pointing out that the Court must

speculate as to whether the Medical

Staff Administrative Committee based

its decision on the uncontested charges

Or on charges as to which there was

conflicting evidence.

The Court is of the opinion that it

would have been preferable that the

defendants, having initiated a hearing

on Dr. Carey's charges and having

permitted Dr. Carey to call witnesses,

had allowed Dr. Yashon the opportunity

to call witnesses in defense of the

specific charges. Further, the Court's

narrow task in assessing whether the

decision of the Medical Staff

Administrative Committee was reasonabiy

related to the operation of the

hospital, Sosa v. Board of Managers of

the Val Verde Memorial Hospital, supra,

would be considerably easier had the

committee rendered a decision in which

it, at the least, delineated which of

the charges were meritorious.

As the Court has previously

explained, Mathews v. Eldridge, supra,

mandated that a number of factors must

be balanced in determining what process

was due Dr. Yashon. The Court further

noted that The Onio State University

has a number of varied and important

interests that must be weighed; apart

from its interest in being able to deal

- 189 -

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expeditiously with personnel matters,

the university has very strong

interests in ensuring that patients at

University Hospitals are not treated by

an incompetent physician and in

fostering an environment in which

physicians are able to work in a

cooperative manner with other

physicians and hospital personnel.

These weighty interests strengthen the

university's expectation that it be

able to deal quickly with charges that

a physician not be reappointed to the

attending medical staff because of

conduct that renders him professionally

unfit; these interests, important as

they are, are limited by the

requirement that the procedures used in

denying an application for

reappointment not be fundamentaily

- 190 -

unfair. See Stretten v. Wadsworth

V rans H ital, supra.

In this case, despite the

university's weighty interests, the

weight of Dr. Yashon's important

interest in being reappointed was not

ignored. The record is clear that Dr.

Yashon was given sufficient notice of

the charges that would be considered by

the Medical Staff Administrative

Committee; that he was totally familiar

with the incidents that served as the

bases for Dr. Carey's charges; that he

was given a full opportunity to respond

to the charges; that he was given an

opportunity to submit to the committee

documentary evidence relevant to any of

the charges; and that he was given, and

exercised, the opportunity to confront

and to cross-examine the witnesses

against him. On this record, the Court

- 191 -

cannot conclude that the procedural

irregularities raised by Dr. Yashon

rendered the hearing and its

accompanying procedural protections

fundamentally unfair.

This conclusion is, the Court

believes, supported by a number of

other factors. The Medical Staff

Administrative Committee, after

considering the charges against Dr.

Carey, decided that Dr. Yashon's

application for reappointment to the

medical staff for one year should be

denied. The bylaws of the University

Hospitals board make clear that the

board has no responsibility over the

academic programs at The Ohio State

University, including those of the

College of Medicine. Accordingly, the

Medical Staff Administrative Committee

properly limited itself to a

- 192 -

consideration of Dr. Yashon's

application for reappointment; the

committee did not, nor did it purport

to, make any decision Or

recommendations as to Dr. Yashon‘s

status as a tenured member of the

faculty of the College of Medicine.

Thus, the question of Dr. Yashon's

tenure or the procedures that would be

constitutionally required were the

university to initiate a detenurization

hearing is not before the Court.

Further, looking to the second

factor in Mathews v. Eldridge, supra,

the Court does not find that’ the

additional procedural protections urged

by Dr. Yashon would have, under the

facts of this case, reduced the

likelihood of possible errors in the

findings of fact of the Medical Staff

Administrative Committee. Although

- 193 -

given the opportunity to present

documentary evidence, Dr. Yashon, while

presenting some documents, did not

present any that were relevant to Dr.

Carey's specific charges. Further, in

responding to the charges at the

hearing, Dr. Yashon had a full

opportunity to explain that there were

other hospital personnel who could

support his claim that the charges were

meritless; yet, as to virtually all of

the charges that he contested, Dr.

Yashon merely claimed that the

witnesses’ versions of what had

occurred were untrue or that’ the

witnesses were unacquainted with all of

the facts. Finally, neither at the

hearing nor in his filings with the

Court, has Dr. Yashon proffered the

name of any witness he would have

called had he been given the

opportunity. Under these

Circumstances, and in view of the

Court's extensive review of the

administrative record and its

determination that there was sufficient

evidence to support many of Dr. Carey's

charges, a number of which were not

even challenged, the Court cannot find

that Dr. Yashon was unfairly prejudiced

either by his inability to call

witnesses or by the committee's failure

to render a written decision as_ to

which charges were meritorious.

Accordingly, based on the foregoing

analysis, the Court concludes that Dr.

Yashon's contention that the hearing

and decision of the Medical Staff

Administrative Committee failed to

comply with the dictates of substantive

and procedural due process is without

merit.

- 195 -

Dr. Yashon next argues that the

Court should overrule defendants’

motion because the defendants have not

complied with the bylaws of the

University Hospital Board; to grant the

defendants' motion, Dr. Yashon

contends, would be to grant finality to

the decision of the Medical Staff

Administrative Committee.

Citing Schulman Vv. Washington

Hospital Center, 319 F.Supp. 252

(D. D.C. 1970) and Gotsis v. Lorain

Community Hospital, 46 Ohio App.2d 8

(Cuyahoga Cty. 1974), Dr. Yashon

maintains that the defendants “must at

a minimum follow [their] own bylaws,

rules and regulations concerning denial

- 196 -

of staff privileges.” Plaintiff David

Yashon, M.D.'s Memorandum in Opposition

to Defendants’ Motion to Vacate Consent

Order and for Summary Judgment at 23.

The University Hospitals Board bylaws

provide that the Medical Staff

Administrative Committee and the Joint

Conference Committee shall make

recommendations concerning applications

for reappointment to the attending

medical staff to the University

Hospitals Board, but that the decision

as to reappointment shall be made by

the board itself. Accordingly, Dr.

Yashon contends that the defendants’

motion requests relief contrary to

their own bylaws.

The complaint in this §1983 action

alleged violations of rights guaranteed

Dr. Yashon under the Fourteentn

Amendment ; the complaint alleged

jurisdiction under 28 U.S.C. §§1331 and

1343. The complaint did not, however,

allege any pendent state law claims.

The Court's duty, therefore, is to

determine whether any failure of the

defendants to comply with the bylaws of

the University Hospitals Board violated

Dr. Yashon's constitutional rights.46

The Sixth Circuit Court of Appeals

has ruled in a variety of contexts that

not every disregard of its regulations

by a state administrative agency

amounts to a violation of federal

constitutional rights:

Rather, it is only when the

agency's disregard of its

rules results in a procedure

which in itself impinges upon

due process rights that a

federal court should

intervene in the decisional

processes of state

institutions.

Bates v. Sponberg, 547 F.2d 325 (6th

- 198 -

Cir. 1976). Accord, Bills Vv.

Henderson, 631 F.2d 1287, 1298 (6th

Cir. 1980). This conclusion is fully

consistent with recent Supreme Court

opinions. United States v. Caceres,

Supra; Board of Curators of the

University of Missouri v. Horowitz, 435

0.6. at 92, na. &. Cf. Cofone v.

Manson, 594 F.2d 934 (2d Cir. 1979);

Lombardo v. Meachum, supra.

Where, as here, Dr. Yashon has

failed to establish that the defendants

deprived him of a liberty or property

interest in violation of the due

process clause, the Court cannot

conclude that the defendants‘ failure

to comply with the reappointment

procedures in the University Hospitals’

bylaws deprived Dr. Yashon of any due

process rights. Accordingly, the

defendants’ failure to comply with the

- 199 -

bylaws does not, standing alone, pose

an impediment to granting defendants’

motion to vacate the consent order and

for summary judgment.

At a number of places in the

complaint, see e.g., YY46, 48, 50, Dr.

Yashon raises a similar point; he urges

that the defendants can only deny his

application for :.eappointment to the

attending medical staff pursuant to the

procedures governing corrective action

against a physician which are

delineated in the constitution, bylaws,

rules and regulations of the medical

staff of University Hospitals4’ or

pursuant to the procedures governing

discipline of tenured faculty members

which are delineated in the rules of

the university faculty. The above

analysis is equally applicable to these

contentions as well. In that the

- 200 -

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question of what due process is due is

a federal question, the Court is not

bound by procedures defined in state

administrative rules when it considers

whether the process afforded Dr. Yashon

was constitutionally sufficient. In

that the hearing and accompanying

procedures utilized by defendants were

fully constitutional, the Court finds

that the defendants were not

constitutionally required to comply

with the disciplinary procedures in the

rules of the university faculty or in

the constitution, bylaws, rules’ and

regulations of the medical staff.

5. The Appropriateness of Summary

Judgment

Finally, Dr. Yashon argues’ that

summary judgment is inappropriate

- 201 -

because there are disputes as

mate

rele

In

for granting summary judgment under the

abov

that

rial facts.

Fed. R. Civ. P. 56(c) provides,

vant part, that

[t]he judgment sought. shall

be rendered forthwith if the

pleadings, depositions,

answers to interrogatories,

and admissions on file,

together with the affidavits,

if any, show that there is no

genuine issue as to any

material fact and that the

moving party is entitled to a

judgment as a matter of law.

any cCivil litigation the standard

e rule is strict. It is settled

on a motion for summary

judgment the movant has the

burden of showing

conclusively that there

exists no genuine issue as to

a material fact and the

evidence together with all

inferences to be drawn

therefrom must be read in the

light most favorable to the

party opposing the motion.

Adickes v. Kress & Co., 398

- 202 -

to

in

U.S. 144, 1S7, 158-59, 90

§.Ct. 1598, 26 L.Ed.2d 142

(1970); United States 7.

Diebold, 369 U.S. 654, 655

(1962) (per curiam); United

States v. Articles of Device,

ete... $27 F.a8 3006, -.20ii

(6th Gas. 1976). oe

[W]hile the movant's papers

are to be closely

scrutinized, those of the

opponent are to be viewed

indulgently. Bohn Aluminum &

Brass Corp. v. §torm King

Corp., 303 F.2d 425, 427 (6th

Cus. 2962).

Smith v. Hudson, 600 F.2d 60, 63 (6th

Gatsde cert. denied, 444 U.S. 986

(1979).

In this case, the only relief

sought by Dr. Yashon is’ injunctive

relief compelling defendants to

reinstate him to the attending medical

staff of University Hospitals and

restraining defendants from further

attempts to dismiss him from’ the

attending medical staff without

complying with the procedures

- 203 -

delineated in the rules of the

university faculty and the

constitution, bylaws, rules and

regulations of the medical staff.

The Court has previously found that

the defendants did not violate the due

process clause in denying Dr. Yashon's

application for reappointment to the

attending medical staff; that is, the

procedures 2mployed by the Medical

Staff Administrative Committee in

considering his annual application for

reappointment complied with the

dictates of the Fourteenth Amendment.

Further, the Court has ruled that, as a

matter of federal constitutional law,

the defendants were not required to

follow the disciplinary procedures

outlined in either the rules of the

university faculty or in the

constitution, bylaws, rules and

regulations of the medical staff.

Under these circumstances, the Court

finds that the disputed facts deferred

to in the memorandum contra the

defendants’ motion are not material to

a resolution of the only issue before

the Court, namely, Dr. Yashon's

reinstatement to the attending medical

staff of University Hospitals. See,

e.g., Woodbury v. McKinnon, = supra;

Klinge 2 Lutheran Charities

Association of St. Louis, supra; Kaplan

v. Carney, 404 F.Supp. 161 (E.D. Mo.

aol a)

WHEREUPON, the Court determines

that the defendants’ motion to vacate

the consent order and for summary

- 205 -

judgment is meritorious and it is

GRANTED.

The Court ORDERS that the consent

order of July 17, 1981, insofar as it

provided that Dr. Yashon would . be

granted the same rights and privileges

as a member of the medical staff of

University Hospitals as he had had as

of June 30, 1981, be and is hereby

VACATED.

IT IS SO ORDERED.

/s/ Joseph P, Kinneary

United States District

Judge

- 206 -

FOOTNOTES

According to Dr. Yashon, the terms

of the contract include the letter

of offer, the annual notices of

appointment, the relevant statutes

of the State of Ohio, the bylaws of

the Board of Trustees of The Ohio

State University, the rules of the

university faculty, the

departmental and/or college

statement of criteria and

procedures for promotion and

tenure, the faculty handbook, the

operating manual, and any written

understandings between Dr. Yashon

and the university regarding his

employment. Pursuant to this

contract, Dr. Yashon had been

awarded tenure. (Complain

This text is long and has been trimmed here. Open the source document for the complete record.