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Published online by Cambridge University Press: 06 May 2021
This Article offers a practical guide to hospital initiated quality assurance. After outlining the hospital's duty of care, the Article discusses both offensive and defensive strategies for dealing with the problem of an impaired or incompetent medical staff member. While the Article advocates informal resolution of the problem, it encourages the hospital and the medical staff to build a defense to liability based on strict adherence to hospital bylaws, rules and regulations governing medical staff organization, privileges and evaluation. The Article's ultimate concern is to avoid an escalated situation involving multiple lawsuits, patient harm, humiliation to the practitioner, and economic loss.
The author is of counsel with the Boston, Massachusetts law firm of Warner & Stackpole.
The author is a partner with the Boston, Massachusetts law firm of Warner & Stackpole.
This paper was originally presented at the Boston Conference on September 18, 1981. The authors gratefully acknowledge the contributions of Michael L. Blau in preparing this Article.
1 2A Health Law Center, Aspen Systems Corp., Hospital Law Manual Medical Staff 1 (1979) [hereinafter cited as Hospital Law Manual].
2 See, e.g., Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3 (1957) (abandonment of the limitation of hospital liability for employee negligence).
3 Although commentators disagree on the exact interpretation of the case, Darling v. Charleston Community Hosp., 33 Ill. 2d 326, 211 N.E.2d 253 (1956), cert, denied, 383 U.S. 946 (1966) is often cited as the seminal case establishing that the hospital governing body has a duty to monitor quality medical care in the hospital and to act to avoid harm to patients. This court-imposed duty is reinforced by a number of state licensure statutes; by the Conditions of Participation for Medicare, Medicaid and a number of other-federal health care programs; and by Joint Commission on Accreditation of Hospitals (JCAH) Standards. See also Gonzales v. Nork, 60 Cal.'App. 3d 728, 131 Cal. Rptr. 717 (1976) (settled out of court prior to entry of final judgement, and hence under peculiarities of California law, case does not serve as California precedent); Johnson v. Misericordia Community Hosp., 97 Wise. 2d 521, 294 N.W.2d 501 (1980), aff'd, 301 N.W.2d 156 (1981); Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P.2d 335 (1972); Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1, 186 S.E.2d 307 (1971), aff'd, 229 Ga. 140, 189 S.E5d 412 (1972).
Prior to Darling, courts historically distinguished between a hospital's liability for the acts of employees of the hospital rendering hospital services and the acts of private physicians, who are independent contractors hired by the hospital to render medical services. This distinction was drawn because only in the former situation did the hospital have the right to control the means and methods of the physician's practice. Accordingly, only in that situation did the law impose liability on the hospital for the acts of the physician. See, e.g., Zelver v. Sequoia Hosp. Dist., 7 Cal. App. 3d 934, 87 Cal. Rptr. 79 (1970); Dickenson v. Mailliard, 175 N.W.2d 588 (Iowa 1970); Cooper v. Curry, 92 N.M. 417, 589 P.2d 201 (1978).
Expanding notions of legal responsibility have motivated courts to circumvent the independent contractor doctrine by employing a variety of legal theories. The doctrine of apparent agency has been used to hold the hospital responsible for the acts of medical specialists who provide predominately in-house services at the hospital. See, e.g., Seneris v. Haas, 45 Cal. 2d 811, 291 P.2d 915 (1955) (anesthesiologist); Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977) (emergency room doctor); Kober v. Stewart, 148 Mont. 117, 417 P.2d 476 (1966) (radiologist); Lundberg v. Bay View Hosp., 175 Ohio St. 133, 191 N.E.2d 821 (1963) (pathologist). Other courts have applied an expanded concept of responded superior to hold hospitals liable for the negligent acts of a hospital-based specialist; in effect finding that such independent contractors are employees of the hospital. See Beeck v. Tucson Gen. Hosp., 18 Ariz. App. 165, 500 P.2d 1153 (1972). As the concept of employee liability has expanded along with the theory of corporate negligence, hospitals have found added impetus for exercising care in the selection, retention and supervision of medical staff physicians.
4 Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P.2d 335 (1972).
5 JCAH Accreditation Manual for Hospitals, Medical Staff Standard IV requires the medical staff to provide mechanisms for the regular review, evaluation and monitoring of medical staff practice and functions in recognition of the fact that responsibility for the quality of medical practice rests with the medical staff. Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals, Medical Staff 106 (1982 ed.) [hereinafter cited as JCAH Accreditation Manual].
6 AMA Principles of Medical Ethics, Principle I (1981).
7 Corleto v. Shore Mem. Hosp., 138 N.J. Super. 302, 350 A.2d 534 (L. Div. 1975).
8 Id.
9 See W. Prosser, The Law of Torts, 53 (4th ed. 1971).
10 JCAH Accreditation Manual, supra note 5, at 103-04.
11 Id. at 102.
12 Id. at 102-03.
13 Id. at 106.
14 Id.
15 Id.
16 Id. at 106-07.
17 Id. at 107.
18 Id. at 107-08
19 Id. at 108.
20 Id at 106, JCAH Accreditation Manual, Quality Assurance at 151-54, Utilization Review at 193-94.
21 See Hawkins v. Kinsie, 540 P.2d 345 (Colo. App. 1975).
22 Hospital peer review records evaluating the qualifications of an individual physician are usually discoverable except where a special privilege is found in case law or statute. See generally Annot., 81 A.L.R.3d 944 (1977).
23 See Darling v. Charleston Community Hosp., 33 Ill. 2d 326, 211 N.E.2d. 253 (1956), cert, denied, 383 U.S. 946 (1966).
24 In some states, a physician or other person testifying before a medical staff committee is only entitled to a qualified privilege which may be overcome by a showing of malice. E.g., Cal. Civ. Code 43.7 (Supp. 1977); Neb. Rev. Stat. 25-12,122 (1967). See, e.g., Matviuw v. Johnson, 70 Ill. App. 3d 481, 388 N.E.2d 795 (1979); DiMiceli v. Klieger, 58 Wis. 2d 359, 206 N.W.2d 184 (1973). Absolute immunity for such testimony would be preferable because anticipation of being called upon to prove good faith would have a chilling effect on medical staff peer review committee proceedings, thereby severely restricting the ability of those committees to obtain the information essential to performing their functions.
25 E.g., Ill. Ann. Stat. ch. 51, 1 (Smith-Hufd 1976); N.Y. Educ. Law 6527 (Me Kinney 1967); See Holbrook, and Dunn, Medical Malpractice Litigation: The Discoverability and Use of Hospital Quality Assurance Committee Records, 16 Washburn L.J. 54 (1976)Google Scholar; Hall, Hospital Committee Proceedings and Reports: Their Legal Status, 1 Am. J.L. & Med. 245 (1975)Google Scholar; Annot., 81 A.L.R.3d 944 (1977). There are numerous cases in which shield statutes have been cited to preclude the discovery of medical staff proceedings records. See, e.g., Matchett v. Superior Ct.( 40 Cal. App. 3d 623, 115 Cal. Rptr. 317 (1974); Dade County Medical Ass'n v. Hlis, 372 So. 2d 117 (Fla. App. 1979).
26 For a suggested Model Shield Law see the Appendix.
27 Bredice v. Doctors Hosp., 50 F.R.D. 249 (D.D.C. 1970), aff'd, 479 F.2d 920 (1973). Contra, Nazareth Literary and Benevolent Int. v. Stephenson, 503 S.W.2d 177 (Ky. 1973) (rejecting Bredice).
28 50 F.R.D. 249 (D.D.C. 1970).
29 See, e.g., Gillman v. United States, 53 F.R.D. 316 (D.C.N.Y. 1971) (following Bredice but limited to the facts); Oviatt v. Archbishop Bergan Mercy Hosp., 191 Neb. 224, 214 N.W.2d 490 (1974), (quoting Bredice with approval).
30 Fifth and fourteenth amendment due process requirements do not apply to actions taken by a private corporation unless there is state or federal action involved. See Moose Lodge 107 v. Irvis, 407 U.S. 163 (1972); Waters v. St. Francis Hosp., Inc., 618 F.2d 1105 (5th Cir. 1980). Public hospitals, which are owned and operated by units of government, act under color of state law and must provide due process protections. Foster v. Mobile County Hosp. Bd., 398 F.2d. 227 (5th Cir. 1968). Because of the extent of federal and state government assistance, including tax exempt status, Hill-Burton construction subsidies, Medicare and other governmental financial assistance programs, and state licensing and regulation of private hospitals, litigants have argued that hospitals are intertwined sufficiently with governmental activity to qualify their activities as state action. Most of the circuit courts that have considered this issue held that such governmental involvement with private hospitals does not constitute sufficient state action to impose due process requirements. Accordingly, most courts have also held that a physician is not entitled to fourteenth amendment protection where his application for medical staff membership is rejected or his staff privileges are limited or revoked. Hodge v. Paoli Mem. Hosp., 576 F.2d 563 (3d Cir. 1978); Schlien v. Milford Hosp., Inc., 561 F.2d 427 (2d Cir. 1977); Madry v. Sorel, 558 F.2d 303 (5th Cir. 1977), cert, denied, 434 U.S 1086 (1978); Jackson v. Norton-Children's Hosp., Inc., 487 F.2d 502 (6th Cir. 1973), cert, denied, 416 U.S. 1000 (1974); Aasum v. Good Samaritan Hosp., 476 F.2d 671 (10th Cir. 1973). Contra, Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974); Sams v. Ohio Valley Gen. Hosp. Ass'n, 413 F.2d 826 (4th Cir. 1969).
Although the First Circuit has not directly addressed this issue, two cases from that circuit have indicated that public financial assistance may be sufficient to render a private hospital's activities state action. See Downs v. Sawtelle, 574 F.2d 1 (1st Cir. 1978), cert, denied sub. nom. Hagen v. Downs, 439 U.S. 910 (1978) (where a hospital received thirty percent of its operating budget from Medicare, hospital board was appointed by town board, and town received hospital profits, it was error to grant summary judgement to the hospital which claimed that no state action was involved in an alleged conspiracy to sterilize the plaintiff against her wishes); Bricker v. Sceva Speare Mem. Hosp., Inc., 339 F. Supp.234 (D.C.N.H. 1972) (stating in dicta that receipt of Hill-Burton funds was sufficient to support a finding of state action on the part of a private hospital).
Although fourteenth amendment due process protections may not apply in a medical staff peer review proceeding, such proceedings may nonetheless be subject to common law standards of fundamental fairness. See Ascherman v. St. Francis Mem. Hosp.) 45 Cal. App. 3d 507, 119 Cal. Rptr. 507 (1975). Thus, while peer review proceedings need not have the procedural refinements of a court trial, such proceedings should give the accused physician a full and meaningful opportunity to be heard. See McCall, A Hospital's Liability for Denying, Suspending, and Granting Staff Privileges, 32 Baylor L. Rev. 175 (1980).Google Scholar
31 See, e.g., Battle v. Jefferson Davis Mem. Hosp., 451 F. Supp. 1015 (S.D. Miss. 1976), aff'd, 575 F.2d 298 (5th Cir. 1978); Schlien v. Milford Hosp., 423 F. Supp. 541 (D. Conn. 1976), aff'd, 561 F.2d 427 (2d Cir. 1977); Silver v. Castle Mem. Hosp., 53 Hawaii 475, 497 P.2d 564 (1972), cert, denied, 409 U.S. 1048 (1972).
32 See generally Hospital Law Manual, supra note 1, at 13-19. See, e.g., N.Y. Pub. Health Law 2801-f (McKinney 1977) (describing due process rights of physicians in disciplinary proceedings); Blum, Due Process in Hospital Peer Review, 294 New Eng. J. Med. 29, 30 (1976)Google Scholar.
33 Garrow v. Elizabeth Gen. Hosp. & Dispensary, 155 N.J. Super. 78, 382 A.2d 393 (1977), modified, 79 N.J. 549, 401 A.2d 533 (1979).
34 St. John's Hosp. Medical Staff v. St. John Regional Medical Center, Inc., 90 S.D. 674, 245 N.W.2d 472 (1976) is often cited for the proposition that the medical staff bylaws are a contract between the medical staff and the governing body. The case arose when the governing body attempted to amend medical staff bylaws over the opposition of the medical staff.
35 See generally Ludlam, Physician-Hospital Relations: The Role of Staff Privileges, 35 L. & Contemp. Prob. 879, 891 (1970)Google Scholar.
36 Id.
37 Id.
38 Id.
39 See Bradley v. Lakes Regional Hosp. Ass'n, No. E-80-0060 (Belknap County N.H. Super. Ct. 1980) (court refused to circumvent procedures for staff appointment by ordering a physician to be admitted to the medical staff with temporary privileges to perform a tonsilectomy on plaintiff because it did not want to assume the role of an alternative forum where the legislature had delegated the decision making power to hospital committees). See generally Hospital Law Manual, supra note 1, at 67 citing Halitsky v. Svasset Hosp., 38 Misc. 2d 345, 238 N.Y.S.2d 117 (1963).
40 See K. Davis, 3 Ad. L. Treatise 20.01-20.10 (1958).
41 Hospital Law Manual, supra note 1, at 18 (citing Suckle v. Madison Gen. Hosp. 499 F.2d 1364 (7th Cir. 1974)).
42 See Sosa v. Board of Mgrs. of Val Verde Mem. Hosp., 437 F.2d 173 (5th Cir. 1971); Poe v. Charlotte Mem. Hosp., 374 F. Supp. 1302 (W.D.N.C 1974); Volpicelli v. Jared Sydney Torrance Mem. Hosp., 109 Cal. App. 3d 242, 167 Cal. Rptr. 610 (1980); Silver v. Castle Mem. Hosp., 52 Hawaii 475, 497 P.2d 564, cert, denied., 409 U.S. 1048 (1972); Garrow v. Elizabeth Gen. Hosp. and Dispensary, 155 N.J. Super. 78, 382 A.2d 393 (1977), modified, 79 N.J. 549, 401 A.2d 533 (1979); Hospital Law Manual, supra note 1, at 67 (citing Christhilf v. Annapolis Emergency Hosp. Ass'n, 496 F.2d 174 (4th Cir. 1974)).
43 See, e.g., Ill. Ann. Stat. ch. 69, 1 et seq. (Smith-Hurd 1980 & Supp. 1981); N.Y. Civ. Prac. Law 6301 et seq. (McKinney 1980). See also Fed. R. Civ. P. 65.
44 See, e.g., Ill. Ann. Stat. ch. 69, 3-1 (Smith-Hurd 1980 & Supp. 1981). See also Fed. R. Civ. P. 65.
45 See, e.g., Cohen v. Price Comm'n, 337 F. Supp. 1236 (1972); Booth v. Greber, 48 Ill. App. 3d 213, 363 N.E.2d 6 (1977).
46 On the requirements for an ex parte hearing, see, e.g., Ill. Ann. Stat. Ch. 69, 3-1 (Smith-Hurd 1980 & Supp. 1981) (a temporary restraining order will be granted after an ex parte hearing only when the applicant demonstrates with specific facts by affidavit or verified complaint that he will suffer irreparable injury before notice of hearing can be served on the other party). Ex parte practice on injunction is ancient and almost universal. Rendleman, Toward Due Process in Injunction Procedure, 1973:1 U. Ill. L.F. 222, 235 quoting F. Frankfurter & N. Greene, The Labor Injunction 182, 189 (1930).
47 Cf. 43 C.J.S. Injunctions 36, 37 (1978) (stating that courts will consider the possibility of harm to the defendant or to the general public in deciding whether to grant a temporary restraining order).
48 See Sosa v. Board of Mgrs. of Val Verde Mem. Hosp., 437 F.2d 173, 176-77 (5th Cir. 1971).
49 See Citta v. Delaware Valley Hosp., 313 F. Supp. 301, 311-12 (E.D. Pa. 1970). See generally Gray, Due Process Considerations in Hospital Staff Privilege Cases, 7 Hastings Const. L.Q. 217 (1979)Google Scholar.
50 See Christhilf v. Annapolis Emergency Hosp. Ass'n, 552 F.2d 1070 (4th Cir. 1977) (plaintiff entitled to damages for delay in hearing resulting in permanent suspension); Gareeb v. Weinstein, 161 N.J. Super.'1, 390 A.2d 706 (1978) (action for malicious interference and conspiracy resulting in suspension of physician's privileges); Straube v. Larson, 287 Or. 357, 600 P.2d 371 (1979) (allegation of conspiracy to deprive physician of staff privileges states cause of action). See also Margolin v. Morton F. Plant Hosp. Ass'n, 342 So. 2d 1090 (Fla. App. 1977) (allegation of conspiracy among anesthesiologists states cause of action); Nashville Mem. Hosp., Inc. v. Binkley, 534 S.W.2d 318 (Tenn. 1976) (allegation of malicious conspiracy to deprive physician of staff privileges states cause of action).
Two recent California cases suggest that before a damage action may be brought by a physician for revocation of his privileges or denial of appointment, he must exhaust internal hospital remedies and then overturn the hospital's decision in a mandamus action. See McNair v. Pasadena Hosp. Ass'n, III Cal. App. 3d 841, 169 Cal. Rptr. 39 (1980); Westlake Community Hosp. v. Superior Ct. 17, Cal. 3d 465, 551 P.2d 410, 131 Cal. Rptr. 90 (1976).
51 See generally Hospital Law Manual, supra note 1, at 78-82.
52 See generally Restatement (Second) of Torts 558-581A (1977); W. Prosser, Handbook of the Law of Torts 111-16 (4th ed. 1977).
53 See, e.g., Ill. Ann. Stat. ch. 111, 4406 (Smith-Hurd Supp. 1981); Mass. Ann. Laws ch. 231, 85N (Michie/Law Co-op Supp. 1981); N.Y. Educ. Law 6527(3) (McKinney 1980).
54 W. Prosser, supra note 52, at 115.
55 Id. at114, 776.
56 Id. at 129, 130.
57 Id. at 12; Restatement (Second) of Torts, supra note 52, at 46.
58 See note 53 supra.
59 St. John's Hosp. Medical Staff v. St. John Regional Medical Center, Inc., 90 S.D. 674, 245 N.W.2d 472 (1976). See also note 34 supra.
60 Citta v. Delaware Valley Hosp., 331 F. Supp. 301, 311-12 (E.D. Pa. 1970).
61 See Fla. Stat. Ann. 395.065(2) (West Supp. 1981). In most states, however, immunity statutes protect medical staff and their individual members, thus failing to provide immunity for a hospital sued as a corporate entity in a breach of contract action. See note 53 supra.
62 See, e.g., Cal. Bus. & Prof. Code 16700 et seq. (West 1974) (Cartwright Act); Sherman Act, 15 U.S.C. 1-11 (1975); Clayton Act, 15 U.S.C. 12 (1976).
63 See, e.g., Feminist Women's Health Center, Inc. v. Mohammad, 415 F. Supp. 1258 (N.D. Fla. 1976), aff'd in part, rev'd in part, 586 F.2d 530 (5th Cir. 1978), cert, denied, 444 U.S. 924 (1979); Zamiri v. William Beaumont Hosp., 430 F. Supp. 875 (E.D. Mich. 1977). To invoke federal law the injury must substantially affect interstate commerce. Once a significant barrier, an interstate nexus is now found routinely in hospital cases. See, e.g., Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738 (1976); Wolf v. Jane Phillips Episcopal-Mem. Medical Center, 513 F.2d 684 (10th Cir. 1975) (exclusion from staff privileges held not to substantially affect interstate commerce); Virginia Academy of Clinical Psychologists v. Blue Shield, 469 F. Supp. 552 (E.D. Va. 1980), aff'd in part, rev'd in part on other grounds, 624 F.2d 476 (4th Cir. 1980) (purchases of out of state equipment and supplies and treatment of out of state patients provides sufficient nexus for interstate commerce); Zamiri v. William Beaumont Hosp. 430 F. Supp. 875 (E.D. Mich. 1977) (holding receipt of Medicare and Medicaid funds provide inter alia a sufficient nexus with interstate commerce to invoke the Sherman Act).
64 For a discussion of antitrust cases brought by practitioners against peer review committees, see Note, Legal Liability of Medical Peer Review Participants For Revocation of Hospital Staff Privileges, 28 Drake L. Rev. 692 (1979).
65 Boycotts achieved through professional self-regulation receive less severe treatment in the courts and may be approved under a rule of reason analysis if the purpose of the boycott is to benefit the public and the practitioner is provided a fair hearing. See Silver v. New York Stock Exch., 373 U.S. 341 (1963).
66 Conspiracy to monopolize requires proof that the defendants conspired to obtain a monopoly and committed an overt act toward that end. The offense does not require a showing that the conspirators possessed the means to succeed. American Tobacco Co. v. United States, 328 U.S. 781 (1946).
67 Commercial motivation removes the challenged action from the protection of the antitrust exemption for professional activities serving the public interest. See Boddicker v. Arizona St. Dental Ass'n, 549 F.2d 626 (9th Cir. 1977). The conspiracy must consist of two or more parties since a single, non-monopoly individual or corporation has an unrestricted right to refuse to deal with another. 15 U.S.C. 1 (1976); Virginia Academy of Clinical Psychologists v. Blue Shield, 624 F.2d 476 (4th Cir. 1980). One court has held that a peer review committee is merely a singular agent of the hospital corporation, and hence, incapable of conspiring with itself. Sokol v. University Hosp., Inc., 402 F. Supp. 1029 (D. Mass. 1975). [T]he concurrence of a number of the personnel.of the [hospital] corporation does not satisfy the requirement of an agreement, combination or conspiracy. Id. at 1030.
68 15 U.S.C. 15 (1976).
69 Usually, good motive is not accepted as an antitrust defense. Fashion Originators Guild of America v. FTC, 312 U.S. 457 (1941). Benign purposes are considered insufficient to outweigh society's interest in preventing private extra-governmental agencies from controlling commerce. Id. The special circumstances of mandatory peer review, however, have prompted courts to create a good faith defense. Feminist Women's Health Center, Inc. v. Mohammad, 415 F. Supp. 1258, 1263 (N.D. Fla. 1976). Only those actions taken to uphold medical standards are protected. Id. The defendants carry the burden of showing the good faith purpose and lack of anticompetitive intent. Id.
70 The court looks at the benign or procompetitive purposes of the defendant's actions, and if the anticompetitive effects outweigh the benefits, the agreement will be held illegal. National Soc'y of Professional Engineers v. United States, 435 U.S. 69 (1978).
71 Parker v. Brown, 317 U.S. 341 (1943) (state-mandated pricing program provides Sherman Act defense for program participants).
72 Id.
73 JCAH Accreditation Manual, supra note 5, Standard IV.
74 See, e.g., 42 U.S.C. 1395x (e)-(g) (1965) (defining hospital for the purpose of the Health Insurance for the. Aged ActMedicareas one which meets JCAH requirements); 25 U.S.C. 1631 (1976) (stipulating that hospitals built under the Indian Health Care Improvement Act shall meet the JCAH Standards). See also Darling v. Charleston Community Hosp., 33 111. 2d 326, 211 N.E.2d 253 (1965), cert, denied, 383 U.S. 946 (1966).
75 See Anton v. San Antonio Hosp., 19 Cal. 3d 802, 567 P.2d 1162, 140 Cal. Rptr. 442 (1977); Wyatt v. Tahoe Forest Hosp. Dist., 174 Cal. App. 2d 709, 345 P.2d 93 (1959); Sussman v. Overlook Hosp. Ass'n, 95 N J . Super. 418, 231 A.2d 389 (1967). Medicare and Medicaid regulation, 42 C.F.R. 405.1021(e)(7), (1980) requires a procedure for a hearing by the governing body or other committee if an applicant or the medical staff believes the decision concerning staff appointment was wrong or unfair. Cf. Weary v. Baylor Univ. Hosp., 360 S.W.2d 895 (Tex. Ct. App. 1962) (by-laws requiring hearing on denial of privileges not binding on governing bodies power of appointment). See generally JCAH Accreditation Manual, supra note 5.
76 See also Hospital Law Manual, supra note 1, at 26.
77 Id. at 26-27.
78 Id. at 27.
79 See Rao v. Auburn Gen. Hosp., 19 Wash. App. 124, 573 P.2d 834 (1978) (lack of professional proficiency held sufficient cause for denial of staff appointment).
80 See McElhinney v. William Booth Mem. Hosp., 544 S.W.2d 216 (Ky. 1976) (physician ordered reinstated due to lack of evidence of violation of bylaws or negligence).
81 See Robbins v. Ong, 452 F. Supp. 110 (S.D. Ga. 1978); Schooler v. Nararro County Mem. Hosp., 375 F. Supp. 841 (N.D. Tex. 1973); Glass v. Doctors Hosp. Inc., 213 Md. 44, 131 A.2d 254 (1957); Grodjesk v. Jersey City Medical Center; 135 N.J. Super. 393, 343 A.2d 489 (1975); Sussman v. Overlook Hosp. Ass'n, 95 N.J. Super. 418, 213 A.2d 389 (1967); Straube v. Emanuel Lutheran Charity Bd., 287 Or. 375, 600 P.2d 381 (1979), cert, denied, 445 U.S. 966 (1980).
82 Silver v. Castle Mem. Hosp., 53 Hawaii 475, 478, 797 P.2d 564, 568 (1972), cert, denied, 409 U.S. 1048 (1972); Straube v. Auburn Gen. Hosp., 19 Wash. App. 124, 573 P.2d 834 (1978).
83 See Miller v. Eisenhower Medical Center, 27 Cal. 3d 614, 614 P.2d 258, 166 Cal. Rptr. 826 (1980); Hospital Law Manual, supra note 1, at 33.
84 The term schools of medicine means, and has reference to, the system, means, or method employed, or the schools of thought accepted, by the practitioner. Ex parte Halsted, 182 S.W.2d 479, 487 (Tex. Crim. 1944). Thus, the term school of practice is used to distinguish between different systems of training, diagnosis, and treatment of practitioners of the healing arts, such as allopathy, osteopathy, chiropractic, and podiatry. See Stribling v. Jolley, 241 Mo. App. 1123, 253 S.W.2d 519 (1952) (citing 78 C.J.S. School 590 (1952)); Ferguson v. Gonyaw, 64 Mich. App. 685, 694, 236 N.W.2d 543, 549 (1975) (osteopathic and allotropic schools of medicine distinguished as to standards of care).
85 See, e.g., Stribling v. Jolley, 241 Mo. App. 1123, 353 S.W.2d 519 (1952); Greisman v. Newcomb Hosp., 40 N.J. 389, 192 A.2d 817 (1963). But see Hayman v. City of Galveston, 273 U.S. 414 (1927); State ex rel. Carpenter v. Cox, 453 S.W.2d 69 (Tenn. App. 1969); Duson v. Dodge, 318 S.W.2d 89 (Tex. Civ. App. 1958). See also Hospital Law Manual, supra note 1, at 34.
86 See, e.g., Shaw v. Hosp. Auth. of Cobb County, 614 F.2d 946 (5 th Cir. 1980), cert. denied, 449 U.S. 955 (1980); Touchton v. River Dist. Community Hosp., 76 Mich. App. 251, 256 N.W.2d 455 (1977); But see Davidson v. Youngstown Hosp. Ass'n, 19 Ohio App. 2d 246, 250 N.E.2d 892 (1969). See also JCAH Accreditation Manual Standard I, at 93, 97, which states that podiatrists may be granted clinical privileges but not staff membership and may initiate the admission of patients only with the concurrence of a physician on the medical staff. See generally Hospital Law Manual, supra note 1, at 34.
87 See, e.g., Aasum v. Good Samaritan Hosp., 395 F. Supp. 363 (D. Or. 1975), aff'd, 542 F.2d 792 (9th Cir. 1976); Boos v. Donnell, 421 P.2d 644 (Okla. 1966). See also Hospital Law Manual, supra note 1, at 34.
88 See Samuel v. Curry County & Curry Gen. Hosp. Bd., No. C80-6-83 (Curry County Or. Cir. Ct. Oct. 31, 1980) (the court required the hospital to adopt reasonable rules and regulations allowing chiropractors and naturopaths admission to practice consistent with their training, experience and other qualifications). The case is currently on appeal to the Oregon Court of Appeals.
89 E.g., California (Cal. Health & Safety Code 1316 as amended by ch. 1214 (1977), prohibiting discrimination between practitioners on basis of type of degree); Ohio (Ohio Rev. Code 3701.342 added by H.B. 413 (laws 1978), prohibiting discrimination based solely on type of degree); New Mexico (N.M. Stat. Ann. 61-10-14 (1978), providing for equal privileges for osteopathic and medical physicians); Missouri (Mo. Rev. Stat. 205.300 (1969), prohibiting discrimination between practitioners of different schools of medicine, and applied to osteopaths in Stribling v. Jolley, 241 Mo. App. 1123, 253 S.W.2d 519); and Kansas (Kan. Stat. Ann. 65-2801 et seq., (1980), prohibiting discrimination between different schools of healing and granting all licensed practitioners equal privileges). See Hospital Law Manual, supra note 1, at 34 and at 92-119 for a more complete listing of state statutes. Cf. Taylor v. Horn, 189 So. 2d 198 (Fla. App. 1966) (declining to follow anti-discrimination language in other state statutes authorizing public hospitals to uphold denial of privileges to osteopathic physician).
90 See Sams v. Ohio Valley Gen. Hosp. Ass'n, 413 F.2d 826 (4th Cir. 1969) (striking down a geographic limitation as arbitrary and hence-not reasonably related to the hospital's service area).
91 JCAH Accreditation Manual, supra note 5, Standard I at 94.
92 Guerrero v. Burlington County Mem. Hosp., 70 N.J. 344, 360 A.2d 334 (1976) (hospital board's denial of staff appointment neither arbitrary nor capricious where reasonably calculated to further legitimate end of maintaining quality hospital care); Davis v. Morristown Mem. Hosp., 106 N.J. Super. 33, 254 A.2d 125 (1969) (hiring freeze was a reasonable means to achieve the legitimate end of remedying a bed-shortage problem). Cf. Walsky v. Pascack Valley Hosp., 145 N.J. Super. 393, 367 A.2d 1204 (1976) (striking down a hiring freeze which included an exception for doctors who would limit their practice to defendant hospital, concluding that the restriction is not related to problems of bed occupancy, but rather is designed to discourage new applications for staff privileges. Id. at 407, 367 A.2d at 1215).
93 Dunbar v. Hospital Auth. of Gwinnett County, 227 Ga. 534, 182 S.E.2d 89 (1971).
94 Pollock v. Methodist Hosp., 392 F. Supp. 393 (E.D. La. 1975) (holding a hospital requirement that doctors carry malpractice insurance as a condition of employment was not per se unreasonable and that a hospital must be afforded wide discretion in setting the proper amount of coverage).
95 See, e.g., JCAH Accreditation Manual, supra note 5, Standard I at 94.
96 Foster v. Mobile County Hosp. Bd., 398 F.2d 227 (5th Cir. 1968); Hamilton County Hosp. v. Andrews, 227 Ind. 217, 84 N.E.2d 469 (1949); Armstrong v. Board of Directors of Fayette City Gen. Hosp., 553 S.W.2d 77 (Tenn. App. 1976).
97 Ascherman v. St. Francis Mem. Hosp., 45 Cal. App. 3d 507, 119 Cal. Rptr. 507 (1975) (rejection of application solely because of failure to procure medical staff endorsements held impermissible without a concurrent right to challenge such summary action by an appropriate consideration and hearing as to actual qualifications). Accord, Foster v. Mobile County Hosp. Bd., 398 F.2d 227 (5th Cir. 1968)'.
98 See Board of Trustees of Mem. Hosp. v. Pratt, 262 P.2d 682 (Wyo. 1953) (failure to observe medical record rules); Peterson v. Tuscon Gen. Hosp., Inc., 114 Ariz. 66, 559 P.2d 186 (Ariz. App. 1976); Yeargin v. Hamilton Mem. Hosp., 229 Ga. 870, 195 S.E.2d 8 (1972) (refusal to serve on emergency room backup team in contravention of hospital rule); Koelling v. Board of Trustees of Mary Frances Skiff Mem. Hosp., 146 N.W.2d 284 (Iowa 1966) (intentional entry into medical records of deceptive and misleading information).
99 See, e.g., Cal. Bus. & Prof. Code 805 (West Supp. 1980).
100 See generally Restatement (Second) of Torts, 310-311 (1977).
101 See, eg., Mass. Gen. Laws Ann. ch. 112, 5 (as amended 1977); N.Y. Educ. Law 6527 (1979).
102 See, e.g., Judge v. Rockford Mem. Hosp., 17 Ill. App. 2d 365, 150 N.E.2d 202 (1958); Mayfield v. Gleichart, 437 S.W.2d 638 (Tex. Civ. App. 1969). The doctrine of conditional privilege may also be embodied. in state administrative regulations. See, e.g., 243 CMR 1.02(10) (1979).
103 The Appendix sets forth the authors Model Shield Law.