# Appendix — Yashon v. Hunt

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1469%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1032

## Text

gv - 1507" Supreme Court, U.S,

No. k

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7

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

~ 7.

i
_—

an i :

ma he Ss

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
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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.

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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

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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. * * *

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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
sta

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1469%3A2. Public record. Not legal advice.