_____________________________________________________________
_____________________________________________________________
Frank E. Simmerman, Jr., Esq.
Simmerman Law Office, PLLC
Clarksburg,
West Virginia
Attorney for Dr. Kessel
C. Michael Bee, Esq.
Susan B. Tucker, Esq.
Hill, Peterson, Carper, Bee
& Deitzler, PLLC
Charleston, West Virginia
Attorneys for Drs.
Vaglienti and Huber
Gordon H. Copland, Esq.
Steptoe & Johnson, PLLC
Clarksburg, West
Virginia
Attorney for Monongalia General Hospital
Thomas A. Heywood, Esq.
Bowles Rice McDavid Graff & Love,
PLLC
Attorney for Amicus Curiae,
West Virginia Hospital Association
CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
2. “The doing by one of that which he is already legally bound to do is not a valuable consideration for a promise made to him, since it gives to the promisor nothing more than that to which the latter is already entitled.” Syllabus Point 2, Thomas v. Mott, 74 W.Va. 493, 82 S.E. 325 (1914).
3. Generally, fair hearing and due process provisions in a hospital's medical staff bylaws are not implicated unless there are allegations against a physician bearing on professional competency and conduct.
4. Absent express language to the contrary, a hospital's medical staff bylaws do not constitute a contract between the hospital and its staff physicians. However, where it is alleged that a physician is guilty of professional incompetence or misconduct, the hospital is bound by the fair hearing provisions contained in the medical staff bylaws.
5. “The
Due Process Clause, Article III, Section 10 of the West Virginia Constitution,
requires procedural safeguards against State action which affects a liberty or
property interest.” Syllabus Point 1, Waite v. Civil Service Commission,
161 W.Va. 154, 241 S.E.2d 164 (1977).
6. “A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings.” Syllabus Point 3, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977).
7. “To have a property interest, an individual must demonstrate more than an abstract need or desire for it. He must instead have a legitimate claim of entitlement to it under state or federal law. Additionally, the protected property interest is present only when the individual has a reasonable expectation of entitlement deriving from the independent source.” Syllabus Point 6, State ex rel. Anstey v. Davis, 203 W.Va. 538, 509 S.E.2d 579 (1998).
8. “A regularly licensed physician and surgeon who has conformed to the law and to all reasonable rules and regulations of a public hospital has a right to become a member of the staff thereof and, in the event such right is denied, he shall be afforded an opportunity to be heard and to offer his defense to any charges upon which such denial is based.” Syllabus Point 1, State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 136 S.E.2d 783 (1964).
9. A physician or surgeon is entitled to practice in the public hospitals of the State so long as he or she stays within the law and conforms to all the reasonable rules and regulations of the hospitals. He or she cannot be deprived of that privilege by rules, regulations, or acts of the hospital's governing authorities that are unreasonable, arbitrary, capricious, or discriminatory.
10. “The governing authorities of a private hospital, in the exercise of their discretion, have the absolute right to exclude licensed physicians from its medical staff and such action is not subject to judicial review.” Syllabus Point 4, State ex rel. Sams v. Ohio Valley General Hospital Association, 149 W.Va. 229, 140 S.E.2d 457 (1965).
11. Quasi-public hospitals have the same duty as public hospitals to admit regularly licensed physicians to membership on their medical staffs and are subject to the same level of judicial review of rules, regulations, or acts which have the effect of depriving staff physicians from practicing in their facilities.
12. A
public or quasi-public hospital may not enter into exclusive contracts with
medical service providers that have the effect of completely excluding other
physicians who have staff privileges at the hospital from the use of the
hospital's medical facilities.
Maynard, Chief Justice:
We are called upon to answer a certified question from the Circuit Court of Monongalia County. In the exercise of our discretion, we reformulate the certified question as follows: (See footnote 1)
May
a public or quasi-public hospital enter into an exclusive contract with a
medical service provider that has the effect of completely excluding physicians
who have staff privileges at the hospital from the use of the hospital's medical
facilities. (See footnote 2)
For the
reasons that follow, we answer the question in the negative. (See footnote 3)
The plaintiffs below,
Dr. James W. Kessel, Dr. Richard M. Vaglienti, and Dr. Stanford J. Huber, are
anesthesiologists who have been granted staff privileges (See footnote 4) at defendant
Monongalia General Hospital (hereafter “Monongalia General” or “the hospital”),
a 207-bed acute facility which provides surgical services to patients. The
plaintiffs were employees and shareholders of Monongalia Anesthesia Associates,
Inc. (hereafter “MAA”) which originally entered into a contract with Monongalia
General in 1975 for the provision of anesthesia services. This contract extended
indefinitely, with a termination clause upon sufficient advance notice.
In 1987, Monongalia General
entered into an exclusive contract with another medical service provider to
provide cardiac anesthesia services. At that time, MAA remained the primary
provider of all other types of anesthesia services. In 1989, contract
negotiations between the hospital and MAA failed to produce an extension of the
contract, apparently due in part to the hospital's desire to add a contractual
provision that tied staff privileges of MAA anesthesiologists to the exclusive
contract. As a result, MAA continued to provide the primary non-cardiac
anesthesia services for the hospital for approximately the next decade without a
contract.
In 1999, Monongalia General
entered into an agreement with Dr. Mark Bennett and Bennett Anesthesia
Consultants, PLLC, defendants below, to exclusively provide all anesthesia
services for orthopedic patients at the hospital. Thereafter, the
hospital sought a provider for all, save cardiac and orthopedic, general
anesthesia services.
At that point, MAA asserted
that such actions constituted a reduction in privileges previously granted to
its physicians for reasons unrelated to clinical competency in violation of the
medical staff bylaws. A hearing was held before the Fair Hearing Panel as
provided in the bylaws. (See footnote 5) The Panel
recommended, inter alia, approval of contracting for anesthesiology
services, since the privileges of MAA doctors had not been compromised. MAA
appealed the recommendations to the Hospital Board of Directors which
essentially accepted the recommendations.
Thereafter, the hospital
entered into a contract with Professional Anesthesia Services, Inc., which
granted it the exclusive right to provide all other general anesthesia services
at the hospital, with the exception of cardiac and orthopedic surgery patients.
As a result, even though the plaintiffs maintain privileges at the hospital,
they no longer are permitted to provide operative and orthopedic anesthesia in
the hospital. (See footnote 6)
The plaintiffs subsequently
sued the Hospital, Dr. Bennett, Bennett Anesthesia Consultants, and Professional
Anesthesia Services alleging tortious interference with business relationships;
due process violation/failure to provide a fair hearing; restraint of trade;
breach of contract; and breach of covenants of good faith and fair dealing. The
hospital sought summary judgment on every count but the alleged antitrust
violation. The circuit court, finding the matter was controlled by a question
not yet addressed by this Court, certified the question, set forth above, as
dispositive of the hospital's motion for summary judgment.
In addressing this issue, “we
shall assume arguendo, that [Monongalia General] is a public agency for
our purposes here and analyze the case before us from that point of view.”
Orteza v. Monongalia County General Hosp., 173 W.Va. 461, 466, 318 S.E.2d
40, 45 (1984) (footnote omitted). The Fourteenth Amendment of the Federal
Constitution provides, in part, that the State may not “deprive any person of
life, liberty, or property, without due process of law[.]” “The Due Process
Clause, Article III, Section 10 of the West Virginia Constitution, requires
procedural safeguards against State action which affects a liberty or property
interest.” Syllabus Point 1, Waite v. Civil Service Commission, 161 W.Va.
154, 241 S.E.2d 164 (1977). “The threshold question in any claim of due process
deprivation is isolation of the property interest . . . that the plaintiff
alleges was at stake.” Orteza, 173 W.Va. at 466-67, 318 S.E.2d at 45.
This Court has held that “[a] 'property interest' includes not only the
traditional notions of real and personal property, but also extends to those
benefits to which an individual may be deemed to have a legitimate claim of
entitlement under existing rules or understandings.” Syllabus Point 3, Waite,
supra.
However,
To
have a property interest, an individual must demonstrate more than an abstract
need or desire for it. He must instead have a legitimate claim of entitlement to
it under state or federal law. Additionally, the protected property interest is
present only when the individual has a reasonable expectation of
entitlement deriving from the independent source.
Syllabus Point 6,
State ex rel. Anstey v. Davis, 203 W.Va. 538, 509 S.E.2d 579 (1998). We
also have recognized that “a 'property' interest protected by due process must
derive from a private contract or state law.[.] Major v. DeFrench, 169
W.Va. 241, 251, 286 S.E.2d 688, 695 (1982) (citations omitted). However, a
property interest “must be more than a unilateral expectation of continued
employment.” Id. (See footnote 10)
Having
determined herein that the medical staff bylaws do not constitute a contract
between a hospital and its staff physicians, it follows that the plaintiffs'
alleged property right cannot derive from a private contract. Also, we are not
aware of any state or federal law that grants to hospital staff physicians a
property right in their staff privileges. Instead, the plaintiffs appear to
reason that because they have practiced at the hospital for a number of years,
they have a right to continue to do so. This, however, amounts to no more than a
unilateral expectation of continued employment which we have rejected as a
sufficient basis for a property interest. Finally, this Court has previously
stated that “a physician does not have a constitutional or any vested right to
membership on a hospital staff.” State ex rel. Sams v. Ohio Valley General
Hospital Association, 149 W.Va. 229, 238, 140 S.E.2d 457, 463 ((1965).
Accordingly, we conclude that the plaintiffs' assertion of a property right
protected by due process must fail. (See footnote 11) See also
Capili v. Shott, 487 F.Supp. 710, 713 (S.D.W.Va. 1978), affirmed by
620 F.2d 438 (4th Cir. 1980) (concluding as a matter of law that
“[a] physician . . . has no constitutional right to staff privileges at a public
hospital . . . merely because he is licensed to practice medicine.” (Citations
omitted)).
This, however, is not the end of our analysis. Rather, we believe that this Court's precedent concerning physicians' staff privileges is controlling. Traditionally, we have distinguished between private and public hospitals in determining the scope of our review of hospital decisions affecting staff privileges. See also Rao v. Auburn General Hospital, 10 Wash.App. 361, 365, 517 P.2d 240, 243 (1973) (providing that “[g]enerally, courts have drawn a distinction between private and public hospitals in considering the extent to which courts may review the exclusion of a physician from staff privileges.”). In State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 136 S.E.2d 783 (1964), a physician asked this Court to compel the Board of Trustees of Camden-Clark Memorial Hospital, a public hospital, either to grant the physician's application for staff membership in and use of the facilities of Camden-Clark or give him notice and a hearing on his application. In discussing the matter, this Court noted that
The
authorities are almost unanimous in holding that private hospitals, in the
exercise of their discretion, have the right to exclude licensed physicians from
the use of their facilities. Public hospitals, however, are not entitled to that
immunity. A regularly licensed physician and surgeon has a right to practice in
the public hospitals of the state so long as he stays within the law and
conforms to all reasonable rules and regulations of the
institutions.
Bronaugh, 148 W.Va. at 572, 136 S.E.2d at 786
(citations omitted). The Court held in Syllabus Point 1 of
Bronaugh,
A
regularly licensed physician and surgeon who has conformed to the law and to all
reasonable rules and regulations of a public hospital has a right to become a
member of the staff thereof and, in the event such right is denied, he shall be
afforded an opportunity to be heard and to offer his defense to any charges upon
which such denial is based.
Therefore, the Court granted the physician's
petition for a writ of mandamus to compel Camden-Clark to grant him a hearing on
his application for staff privileges. The holding in Bronaugh is
consistent with the general rule set forth in 40A Am.Jur.2d, Hospitals and
Asylums § 19 (1999), and we now hold that “[a] physician . . . is entitled
to practice in the public hospitals of [the] state so long as he or she stays
within the law and conforms to all the reasonable rules and regulations of the
hospitals. He or she cannot be deprived of that privilege by rules, regulations,
or acts of the hospital's governing authorities that are unreasonable,
arbitrary, capricious, or discriminatory.” (Footnotes omitted)).
In contrast to
Bronaugh, the case of State ex rel. Sams v. Ohio Valley General
Hospital Association, 149 W.Va. 229, 140 S.E.2d 457 (1965), concerned the
issue whether a private hospital has authority to exclude, in its
discretion, members of the medical profession from membership on its staff. The
petitioner, Dr. Sams, a physician and surgeon licensed to practice medicine,
applied for appointment to the medical staff of the respondent, Ohio Valley
General Hospital Association, but was summarily denied. Dr. Sams then sought a
writ of mandamus from this Court compelling Ohio Valley General to appoint him
to its medical staff or, in the alternative, to afford him a hearing on his
application. This Court first determined that “the controlling question here is
whether the respondent hospital is a private or a public hospital[,]” 149 W.Va.
at 232, 140 S.E.2d at 459, and found Ohio Valley General to be a private
hospital. The Court then looked to its language in State ex rel. Bronaugh,
supra, concerning the right of private hospitals to exclude licensed
physicians from the use of their facilities. Concluding that Dr. Sams failed to
establish a clear legal right to the requested relief, the Court
explained:
It
is well settled by the great weight of authority and, in fact, is readily
admitted by the petitioner, that a physician does not have a constitutional or
any vested right to membership on a hospital staff. When the hospital involved
is determined to be a public institution, a physician applicant to the medical
staff is entitled to membership thereon or to a hearing of the reasons for the
refusal of his application. If upon hearing it is found that the governing
authorities have acted arbitrarily, capriciously or unreasonably, mandamus may
lie. This right does not exist, however, in relation to a private hospital,
which may, in its discretion, exclude any physician from its staff without being
required to give any reason therefor.
149 W.Va. at 238, 140 S.E.2d at
463. Accordingly, the Court held in Syllabus Point 4 of Sams that “[t]he
governing authorities of a private hospital, in the exercise of their
discretion, have the absolute right to exclude licensed physicians from its
medical staff and such action is not subject to judicial review.” See also
40A Am.Jur.2d, Hospitals and Asylums § 20 (1999) (stating that
“[p]rivate hospitals have the right to exclude licensed physicians from the use
of their facilities, and such exclusion rests within the sound discretion of the
hospital's managing authorities.” (footnotes omitted)); Peterson v. Tucson
General Hosp., Inc., 114 Ariz. 66, 69, 559 P.2d 186, 189 (Ariz.Ct.App. 1976)
(recognizing “[t]he general rule . . . that the exclusion of a physician from
staff privileges in a private hospital is a matter which ordinarily rests within
the discretion of the managing authorities thereof, not subject to judicial
review.” (Citations omitted)).
Finally, in Mahmoodian v.
United Hosp. Center, Inc., 185 W.Va. 59, 404 S.E.2d 750 (1991), we carved
out a narrow exception to our holding in Sams for instances where there
are allegations against a staff physician of professional incompetence or
misconduct. In Mahmoodian, a physician challenged the revocation of his
medical staff privileges at a private hospital after he was found to have
committed improper conduct. The issue was “whether a decision of a private
hospital adversely affecting a medical staff member's previously granted
privileges at that hospital is subject to judicial review.” 185 W.Va. at 64, 404
S.E.2d at 755 (footnote omitted). We distinguished our holding in Sams on
the basis that it “involved . . . the denial of an initial appointment to
a private hospital's medical staff,” id, and explained that,
the
scope of judicial review of health care peer review decisions adversely
affecting the privileges of a medical staff member is essentially the
same for private and public hospitals.” (See footnote 12) While such
decisions of public hospitals must be reached after affording “due process,” and
such decisions of private hospitals must be reached after affording “fair
procedures,” recent federal legislation will encourage essentially all
hospitals to use the same procedures.
185 W.Va. at 62 n. 2,
404 S.E.2d at 753 n. 2 (citation omitted and footnote added). Finally, we held
in Syllabus Point 1 of Mahmoodian:
The
decision of a private hospital to revoke, suspend, restrict or to refuse to
renew the staff appointment or clinical privileges of a medical staff member is
subject to limited judicial review to ensure that there was substantial
compliance with the hospital's medical staff bylaws governing such a decision,
as well as to ensure that the medical staff bylaws afford basic notice and fair
hearing procedures, including an impartial
tribunal.
As noted above,
the issue presently before us does not involve allegations of incompetence or
misconduct and the invocation of the peer review process, thus we find that
Mahmoodian is not relevant. (See footnote 13) Accordingly, we
will apply the law set forth in Bronaugh and Sams and our
traditional distinction between public and private hospitals. We initially must
determine the status of Monongalia General. If Monongalia General is a public or
quasi- public (See footnote 14) hospital, staff
physicians have a general right to practice in its facilities (See footnote 15) pursuant to
Bronaugh. (See footnote 16) Conversely,
if it is a private hospital, there is no such right as provided in Sams.
Previously, in Orteza, supra, this Court discussed at length the status of Monongalia General, listing all of its public and private characteristics. (See footnote 17) After weighing these characteristics, we concluded,
Certainly,
the appellant Hospital Company lies somewhere in the twilight zone between a
government instrumentality and a private charity. The record does not establish
any nexus between the state and the Hospital Company's personnel decisions, and
the trend in state action decisions would seem to be away from finding state
action in cases involving personnel at quasi-public institutions. Nevertheless,
we shall assume arguendo, that the hospital is a public agency for our
purposes here and analyze the case before us from that point of
view.
Orteza, 173 W.Va. at 466, 318 S.E.2d at 45 (footnote
omitted). (See footnote 18)
Based on Orteza, we
conclude that Monongalia General, if not public, is certainly a
quasi-public hospital. Further, as a quasi-public hospital, we believe
that Monongalia General should be treated as a public hospital for the purpose
of answering the certified question. “The trend of the decisions is to recognize
that hospitals other than being completely private or public may also be
classified as quasi-public. The quasi-public status subjects a hospital to the
same responsibilities as a public hospital.” Rao, 10 Wash.App. at 364,
517 P.2d at 242. Several courts have found that the quasi-public status of
hospitals justifies greater judicial review and warrants treating the hospitals
much the same as public hospitals. Storrs v. Lutheran Hospitals, Etc.,
609 P.2d 24, 28 (Alaska 1980) (holding that a privately owned hospital was
subject to constitutional due process standards as a “quasi public” hospital
because it was the only hospital serving the community and because it was
significantly funded by government sources); Brandt v. St. Vincent Infirmary,
287 Ark. 431, 701 S.W.2d 103 (Ark. 1985) (stating instances when a private
hospital is considered public and subject to judicial review); Silver v.
Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564 (Haw. 1972) (holding
that state and federal funding during hospital's construction subjects it to
judicial review of denial of staff privileges). Accordingly, we hold that quasi-
public hospitals have the same duty as public hospitals to admit regularly
licensed physicians to membership on their medical staffs and are subject to the
same level of judicial review of rules, regulations, or acts which have the
effect of depriving staff physicians from practicing in their facilities.
Thus
far, we have determined that staff physicians of public or quasi-public hospital
may not be deprived of their privilege to practice in the hospital facilities by
an act of the hospital that is unreasonable, arbitrary, capricious, or
discriminatory. The dispositive issue, therefore, is whether it is reasonable
for a hospital to execute an exclusive contract which has the effect of
completely depriving other staff physicians from practicing in the hospital.
Deciding this issue involves several important considerations.
First, as this Court recognized in Bronaugh, the privilege of practicing in a hospital is a valuable one.
A
physician or surgeon who is not permitted to practice his [or her] profession in
a hospital is, as a practical matter, denied the right to fully practice his
profession. Much of what a physician or surgeon must do in this day of advanced
medical technology can be done only in a hospital. Only there are found the
facilities necessary for proper diagnosis or treatment. Although one's right to
practice medicine is not absolute and unqualified, it is a valuable franchise
afforded to one properly trained which should be reasonably
protected.
Bronaugh, 148 W.Va. at 575, 136 S.E.2d at 787. In the
instant case, it is undisputed that the plaintiffs are totally prohibited from
using Monongalia General's surgical suites. Dr. Kessel states in his brief that
since the denial of his use of Monongalia General's facilities, he has supported
his family by itinerant employment, providing anesthesia services from
Clarksburg to Logan and beyond.
A second consideration is the discretion of hospital authorities to govern their institutions as they see fit. According to W.Va. Code § 7-3-15 (1986), the board of trustees vested with the administration and management of a county hospital “shall provide for the employment of and shall fix the compensation for and remove at pleasure all professional, technical and other employees, skilled or unskilled, as it may deem necessary for the operation and maintenance of the hospital[.]” This Court explained in Wallington v. Zinn, 146 W.Va. 147, 118 S.E.2d 526 (1961) that the power granted in W.Va. Code § 7-3-15 relates to,
the
overall duty and responsibility of the board in the efficient operation or
management of the hospital, for the purpose for which created, the best service
for the greatest number of people in the community. In the exercise of that
discretion by the board, without arbitrariness, caprice or discrimination, the
Courts can not interfere.
Zinn, 146 W.Va. at 153, 118 S.E.2d at
529-30 (citation omitted). The governing authority of Monongalia General is its
board of directors. Under our Code of State Rules, the governing authority of a
hospital is legally and morally responsible for the management and control of
the entire hospital including appointment of medical staff. 64 C.S.R. §§ 12-7.1
and 7.2.1 (July 1, 1994).
A third and final
consideration is the interest of patients in choosing their own physicians. For
example, in the present case, several patients allegedly were denied the choice
of the plaintiffs as their anesthesiologists due to Monongalia General's
exclusive contract with other medical service providers. Ideally, a patient
should be able to choose a physician with whom he or she has an ongoing
doctor-patient relationship; one with whom he or she is comfortable; and one in
whom he or she has confidence. Without a doubt such patient control is more
conducive to his or her overall mental, emotional, and physical health than
being forced to rely on the hospital's choice of physician to render crucial
medical services. (See footnote 19) Admittedly, the
desire to choose one's own anesthesiologist may not be great. Normally, a
surgical patient chooses his or her surgeon, not his or her anesthesiologist,
the identity of whom the average patient most likely is completely
unaware. (See footnote 20) Nevertheless, a
patient should retain the right to choose his or her anesthesiologist even if he
or she does not exercise that right. Also, this Court's answer to the certified
question will apply to situations where the issue of patient choice may be of
more significance.
After
carefully weighing the above considerations, we hold that a public or
quasi-public hospital may not enter into exclusive contracts with medical
service providers that have the effect of completely excluding other physicians
who have staff privileges at the hospital from the use of the hospital's medical
facilities. (See footnote 21) Our decision
essentially is based on the determination that the total exclusion of
physicians from their hospital practices, and the concomitant complete
deprivation of patient choice, simply cannot be justified by the alleged
ends to be achieved. In other words, this Court is convinced that a hospital can
adopt less extreme measures to solve management problems such as scheduling
conflicts and repeated delays in surgery complained of by Monongalia General.
We
believe that one such measure of addressing a hospital's management problems,
while still providing for the interests of physicians and patients, is the use
of what we choose to call “a preferential contract.” Such an agreement grants to
a single medical services provider the primary right to practice in a specific
department, but, unlike an exclusive contract, provides exceptions in instances
where another staff physician is specifically requested by a patient. For
example, under a preferential contract, Dr. Kessel, although not the primary
provider of services in Monongalia General's anesthesiology department, would be
allowed access to hospital facilities to treat patients when he is requested. A
preferential contract has the advantage of not completely excluding staff
physicians from practicing in the hospital. Also, the use of such contracts
retains the discretion of hospital authorities to contract with primary service
providers to prevent scheduling and staffing problems. Finally, it preserves
patient choice of physicians.
In its brief to this Court,
Monongalia General posits several arguments in favor of the use of exclusive
contracts. We have already addressed some of these arguments in our discussion
above, and the remaining ones do not persuade us. This Court is satisfied that
our decision herein does not impede the ability of hospitals to effectively
manage their institutions, and since it applies only to the execution of
exclusive contracts, it does not preclude the authority of a hospital to close
one of its departments as a reasonable business decision. Also, while we
acknowledge that the weight of authority appears to support the right of
hospitals to execute exclusive contracts, we do not agree with this authority.
See Gonzalez, 880 S.W.2d at 441 (asserting that “[e]xclusive contracts
have generally been upheld as a reasonable exercise of a hospital's board of
trustees' power to provide for the proper management of the hospital.” (Citation
omitted)). We believe, rather, that the rule crafted in this opinion is
consistent with our own previous holdings on the right of physicians to practice
in the public hospitals of this State. Further, we reject the hospital's
contention that there is a difference between being granted staff privileges at
a hospital and actually being able to practice in a hospital's facilities.
Monongalia General's medical staff bylaws define “privileges” as “the permission
granted to a practitioner to render specific diagnostic, therapeutic, medical,
dental or surgical services.” “Medical Staff” is defined as “the formal
organization of all licensed physicians, oral surgeons and dentists who are
privileged to attend patients in the hospital.” Finally 64 C.S.R. § 12-3.13,
defines “Medical Staff” as “[t]he group of physicians . . . who practice in the
hospital[.]” Each of these definitions contemplates that physicians who have
staff privileges enjoy the right actually to treat patients in the hospital.
For the foregoing reasons, we answer the certified question as follows:
May
a public or quasi-public hospital enter into an exclusive contract with a
medical service provider that has the effect of completely excluding physicians
who have staff privileges at the hospital from the use of the hospital's medical
facilities.
Answer:
No.
Certified
Question Answered.
An
individual's right to conduct a business or pursue an occupation is a property
right. The type of injury alleged in an action for tortious interference is
damage to one's business or occupation. Therefore, the two-year statute of
limitations governing actions for damage to property, set forth under W.Va.
Code, 55-2-12 [1959], applies to an action for tortious interference with
business relationship.
We find that Garrison is inapposite to the instant
case inasmuch as Garrison involved an allegation of substandard medical care
which affected a physician's ability to obtain employment at other hospitals.
In Orteza, this Court
noted:
The
appellant hospital is housed in facilities that are owned by the Monongalia
County Building Commission, a public body, and leased to the private hospital
corporation. The hospital must make periodic financial reports to the county,
which can then review them to insure proper management of the hospital.
Moreover, the Monongalia County Building Commission exercises real and
substantial power over the selection of members of the appellant's Board of
Trustees. According to the Hospital's by-laws, the Board of Trustees submits
three names to the Building Commission, which then has thirty days to select one
of the nominees, if it finds one to be acceptable. The Building Commission is a
public body, an agency of the County Commission created specifically by the
latter to accommodate the construction and administration of Monongalia General
Hospital.
Furthermore
the hospital has been and remains dependent on public resources for its
operation. Public funds financed nearly all of the construction of the
appellant's physical plant and the county established the Building Commission
specifically to secure funding from the Farmer's Home Administration. The
Building Commission issued bonds to help finance construction, and the hospital
derives more than one third of its revenue from governmental sources. At the
time this case was tried the hospital also participated in the West Virginia
Public Employees Retirement Plan, which through joint state and employee
contributions, provides pension benefits to state employees. . .
.
Having
said all of that, however, it should also be noted that Monongalia General
Hospital has several important private characteristics. The hospital was
incorporated by private individuals . . . as a conscious decision to move the
facility away from the political arena and to make it a more attractive
recipient of revenue bond funding. Thus, the hospital's private status can be
seen as a necessary factor in its continued existence. Secondly, the Hospital
Company receives no funding from the County Commission nor does it receive other
direct payments from the state. Finally, the Hospital Company is classified by
the Internal Revenue Service as a private, not-for-profit
corporation.
Orteza, 173 W.Va. at 464-65, 318 S.E.2d at 43-44.