Facts: Robert Egan, a board-certified general and vascular surgeon who has practiced in Missouri for more than 40 years was a member of the medical staff at St. Anthony's Medical Center, a private, not-for-profit hospital in St. Louis County. In June 2005, the hospital notified Egan by letter that it was suspending him from practice there. Pursuant to St. Anthony's bylaws, Egan sought a hearing before members of the hospital's medical staff, at which sworn testimony and evidence were presented. This hearing committee recommended revoking Egan's privileges at St. Anthony's. Egan appealed the hearing committee's findings and recommendation to an appellate committee, which he alleges violated hospital bylaws by hearing additional testimony rather than making a decision solely on the record from the hearing committee. The appellate committee adopted the hearing committee's findings and recommended that Egan's privileges be revoked. The hospital's board of directors, in turn, revoked Egan's privileges and, as required by law, reported the revocation to the Missouri Board of Healing Arts and the National Practitioners Data bank. Egan subsequently filed suit in the circuit court, which dismissed his action for failure to state a claim, citing Cowan v. Gibson, 392 S.W.2d 307 (Mo. banc 1965). Egan appeals.
REVERSED AND REMANDED.
Court en banc holds: (1) As an aggrieved member of St. Anthony's medical staff, Egan may bring an action in equity for injunctive relief to compel the hospital to comply substantially with its own bylaws before it may revoke his clinical privileges. In so doing, the Court makes a limited departure from Cowan based on the clear statement of public policy in the relevant regulation adopted since that holding and consistent with the overwhelming weight of authority developed since the holding.
(a) At the time this Court held in Cowan that there may be no judicial review of the staffing decisions of private hospitals, there was a nationwide majority rule that the exclusion of a physician or surgeon from practicing in a private hospital rested in the discretion of the managing authorities, which this Court reasoned weighed heavily against any judicial review. In the following decades, however, 46 states and the District of Columbia have adopted some form of limited exception to the general rule that courts may not review private hospitals' staffing decisions. In fact, these jurisdictions now frequently find an exception where, as here, the allegation is that the hospital fails to conform to its own bylaws.
(b) In addition, a state regulation, promulgated in 1982, mandates that all Missouri hospitals adopt bylaws governing the professional activity of their medical staffs and that such bylaws "shall provide for hearing and appeal procedures for ... the ... suspension, revocation, or other modification of clinical privileges of a member of the medical staff." See 19 CSR 30-20.020(2)(C)5. As with all duly promulgated state administrative regulations, this regulation has the force and effect of a statute and, as such, it expresses the state's public policy, which here clearly protects both patients and doctors. The parties do not disagree that, under this regulation, hospitals have a legal duty to adopt bylaws but also a corresponding duty to abide by those bylaws. There is nothing in statute or regulation, however, that either authorizes or prohibits a private right of action like the one Egan brings here. The cases that support the general rule of no private right of action to enforce a statute or regulation involve actions for damages, but here, Egan seeks the less intrusive remedy of injunctive relief, seeking only to compel the hospital to follow its own bylaws in its disciplinary proceeding against him.
(2) This Court will not impose judicial review on the merits of a hospital's staffing decisions; instead, it will act only to ensure substantial compliance with a hospital's bylaws. Such bylaws are not and do not create an enforceable contract between doctors and hospitals that, when breached, give rise to actions for damages. Rather, a hospital's obligation to act in accordance with its bylaws is independent of any contractual obligation the hospital may have to the doctor. It is clear that the final authority to make staffing decisions is vested securely in the hospital's governing body with advice from the medical staff during the peer review system intended by the regulation, based on the underlying notion that medical professionals are best qualified to police themselves.
Citation: Opinion Author: Stephen N. Limbaugh, Jr., JudgeOpinion Vote: REVERSED AND REMANDED. All concur.Opinion:This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. In this case, the plaintiff-appellant, a surgeon whose privileges to practice at the defendant hospital were suspended, asks this Court to reexamine its holding in Cowan v. Gibson, 392 S.W.2d 307 (Mo. 1965), that there may be no judicial review of the staffing decisions of private hospitals. Following that precedent, the circuit court dismissed plaintiff's petition for failure to state a claim. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. art. V, sec. 10. Reversed and remanded.(FN1)
Article X, section 1E of the bylaws of the medical staff of St. Anthony's Medical Center provides that "[s]ummary suspension of privileges is a drastic action that is taken without the opportunity for a prior hearing [and that the] Medical Center must be able to justify summary action on the basis that life or health is imminently threatened." At Dr. Egan's request, and in accordance with the bylaws, a hearing was held before members of St. Anthony's medical staff at which sworn testimony and evidence were presented, including the testimony of Dr. Egan's own cognitive experts and other physicians. The hospital subsequently abandoned its claims that Dr. Egan suffered from "neurocognitive abnormality," and no findings were made as to his mental status. However, the hearing committee determined that Dr. Egan: (1) performed an unindicated colectomy; (2) failed to provide sufficient documentation as to the patient in the colectomy and another of his patients, and (3) "in [another] case . . . violated the law and/or principles of medical ethics." Based on these conclusions, the hearing committee recommended revocation of Dr. Egan's privileges to practice at St. Anthony's.
Dr. Egan then appealed the findings and recommendation to an appellate committee, which, as required under the bylaws, was comprised of three members of St. Anthony's board of directors and three physicians selected by Dr. Egan. The bylaws also required that the appellate committee's decision be based solely on the record from the evidentiary hearing. However, Dr. Egan alleges that the appellate committee heard new testimony regarding his professional competence from at least one of its members, Dr. Kirk Nelson, who testified that he, himself, was very critical of Dr. Egan, based on things he had heard at other hospitals and his own personal interactions with him. Specifically, Dr. Nelson testified that Dr. Egan's privileges had been suspended by other local hospitals and that Dr. Egan had received letters of reprimand from them. Dr. Nelson also stated that he had personally witnessed Dr. Egan give an excessive amount of epinephrine in an attempt to resuscitate an ICU patient. Further, he testified that, while working in the emergency department, Dr. Egan asked him whether he had performed a pelvic examination on a female patient who had not reported pain in that region, a question that Dr. Nelson felt was inappropriate. Dr. Nelson concluded by stating that it was his wish that Dr. Egan no longer practice at St. Anthony's. At that point, another physician on the committee objected to the testimony of Dr. Nelson for the reason that it was prejudicial and forbidden by the bylaws. However, the committee chairman, a member of the board of directors, overruled the objection, stating that plaintiff "has mental deficiencies," although, as noted, the hospital had abandoned that claim after the first hearing.
The appellate committee then adopted the findings of the hearing committee over the dissent of the objecting physician and recommended to St. Anthony's board of directors that Dr. Egan's privileges be revoked. The directors, in turn, adopted the recommendation of the committee, revoked Dr. Egan's privileges, and, as required by law, reported the revocation to the Missouri Board of Healing Arts and the National Practitioners Data Bank. Each of these proceedings – summary suspension, evidentiary hearing, appeal and final board action – was governed by the hospital's bylaws.
Subsequently, Dr. Egan filed the underlying seven-count petition seeking mandatory injunctive relief reinstating his privileges pending a new hearing with proper notice and appellate procedures. At oral argument, however, Dr. Egan stipulated that he now seeks only a new hearing in accord with hospital bylaws and not immediate reinstatement of his privileges.
Appellate review of the trial court's dismissal for failing to state a cause of action is "solely a test of the adequacy of the plaintiff's petition." Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001). Thus, it is assumed that all averments in the petition are true and all "reasonable inferences therefrom" are to be liberally granted. Id.
In the decades following Cowan, however, forty-six states and the District of Columbia have adopted a limited exception of one kind or another to the general rule of non-review of the staffing decisions of private hospitals.(FN3) In fact, A.L.R. now recognizes that cases "frequently assert[] that there is an exception to this general rule [of no judicial review] where the hospital fails to conform to its own bylaws or regulations." 28 A.L.R. 107, 152 (1995). Dr. Egan urges us to adopt this very exception, without which Missouri case law forms a minority with only Iowa, Oklahoma and South Carolina. See Natale v. Sisters of Mercy, 52 N.W.2d 701, 710 (Iowa 1952); Metcalf v. Coleman, 71 P.3d 53, 56 (Okla. Civ. App. 2003); Wood v. Hilton Head Hosp., Inc., 356 S.E.2d 841, 842 (S.C. 1987).
What also has happened since Cowan, and what now requires a limited departure from it (more so than the shift in the weight of authority), is the implementation of a state regulation, 19 CSR 30-20.021(2)(C)1-5, promulgated in 1982 by the State Board of Health, which mandates that all Missouri hospitals adopt bylaws governing the professional activity of the medical staff. The relevant subsections are 1, 2, and 5, which provide:
The medical staff shall be organized, shall develop and, with the approval of the governing body, shall adopt bylaws, rules and policies governing their professional activities in the hospital . . . . The bylaws of the medical staff shall include the procedure to be used in processing applications for medical staff membership and the criteria for granting initial or continuing medical staff appointments and for granting initial, renewed or revised clinical privileges. * * * A formal mechanism shall be established for recommending to the governing body delineation of privileges, curtailment, suspension or revocation of privileges and appointments and reappointments to the medical staff . . . . Bylaws of the medical staff shall provide for hearing and appeal procedures for the denial of reappointment and for the denial, revocation, curtailment, suspension, revocation, or other modification of clinical privileges of a member of the medical staff.
(emphasis added).
As with all rules and regulations duly promulgated by state administrative agencies, this regulation has the force and effect of a statute. State ex rel. Martin-Erb v. Mo. Comm'n of Human Rights, 77 S.W.3d 600, 607 (Mo. banc 2002). And as such, it is an expression of the public policy of this state. Brawner v. Brawner, 327 S.W.2d 808, 812 (Mo. banc 1959). Furthermore, it is implicit under this regulation that hospitals not only have a legal duty to adopt bylaws, but also a corresponding duty to abide by those bylaws. On these points, the parties do not disagree.
The question, then, is whether, and to what extent, a member of a hospital medical staff who is directly and adversely affected by a hospital's failure to abide by its own bylaws may sue to enforce compliance with those bylaws. There is no enforcement mechanism in the regulation itself, but section 197.070, RSMo 2000, grants the Department of Health and Senior Services the right to "deny, suspend or revoke a license in any case in which it finds that there has been a substantial failure to comply with the requirements established under this law [the regulatory scheme for hospitals]." There is nothing in the statute or the regulation, however, either authorizing or prohibiting a private right of action like that brought here by Dr. Egan. To be sure, the general rule is that there is no private right of action to enforce a statute or regulation, see, e.g., Dierkes v. Blue Shield of Mo., 991 S.W.2d 662, 668 (Mo. banc 1999), but the cases in support of the rule involve actions for damages. Here, in contrast, Dr. Egan sued for injunctive relief, a less intrusive remedy, seeking only to compel the hospital to follow its own bylaws in the disciplinary proceeding against him. And although the hospital (and amicus) protests that as a matter of public policy, government regulations for hospital staffing decisions exist to protect patients, not doctors, the public policy behind the regulation here clearly protects both. As one court noted in interpreting a similar provision, "The statute . . . attempts to balance the chilling effect of litigation on peer review with concerns for protecting physicians improperly subjected to disciplinary action. . . ." Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1322 (11th Cir. 1994). Given the clear expression of public policy from the regulation, and consistent with the overwhelming weight of authority, this Court holds that Dr. Egan, as an aggrieved member of the medical staff, may bring an action in equity for injunctive relief to compel the hospital to substantially comply with its own bylaws before his privileges may be revoked. See Robles, 785 F. Supp. at 1001; Bell, 633 S.E.2d at 580; Miller, 87 P.3d at 943; Feyz, 719 N.W.2d at 10; Wong, 565 So. 2d at 552.
That is not to say, however, that the bylaws create, or are themselves, an enforceable contract between doctors and hospitals, the breach of which gives rise to an action for damages. As the court of appeals correctly held in Zipper, 978 S.W.2d at 417, a hospital's duty to adopt and conform its actions to medical staff bylaws as required by the regulation is a preexisting duty, and a preexisting duty cannot furnish consideration for a contract. A hospital's obligation to act in accordance with its bylaws, in other words, is independent of any contractual obligation the hospital may have to the doctor.
Finally, and despite this Court's holding, it must be emphasized that the purpose of the regulation is to implement a system of medical staff peer review, rather than judicial oversight, and it is clear that final authority to make staffing decisions is securely vested in the hospital's governing body with advice from the medical staff. This is so because the notion underlying the internal governance structure required by the regulatory scheme is that medical professionals are best qualified to police themselves. 19 CSR 30-20.021(2)(C)12 ("The medical staff as a body or through committee shall review and evaluate the quality of clinical practice of the medical staff in the hospital in accordance with the medical staff's peer review function and performance improvement plan and activities."). This Court, then, will not impose judicial review on the merits of a hospital's staffing decisions, but will act only to ensure substantial compliance with the hospital's bylaws. In this case, a cause of action in equity will lie for that purpose, but the matter of substantial compliance is a factual dispute that can only be determined on remand.
The judgment is reversed, and the case is remanded.
All concur.
Footnotes:
FN1. The Missouri Hospital Association filed a brief as amicus curiae.
FN2. The opinion went on to hold that the doctor could nevertheless state a cause of action against other physicians on the hospital's medical staff who conspired to withdraw his privileges for their own financial gain. Id. at 309. This conspiracy, however, involved more "than the hospital's mere denial of the doctor's application for reinstatement to staff and hospital privileges." Id. The deliberate acts of the other physicians were required for the purpose of interfering with the excluded surgeon's business and livelihood, "all of which is outside the operation and government of the hospital." Id. Here, Dr. Egan can state no cause of action under Cowan and its progeny because his expulsion from the medical staff was a decision resting solely in the discretion of St. Anthony's board of directors.
FN3. Clemons v. Fairview Med. Ctr. Inc., 449 So. 2d 788 (Ala. 1984); Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1222 (Alaska 1992); Bock v. John C. Lincoln Hosp., 702 P.2d 253 (Ariz. Ct. App. 1985); Baptist Health v. Murphy, 226 S.W.3d 800 (Ark. 2006); Miller v. Eisenhower Med. Ctr., 614 P.2d 258 (Cal. 1980); Hawkins v. Kinsie, 540 P.2d 345 (Colo. Ct. App. 1975); Gianetti v. Norwalk Hosp., 557 A.2d 1249 (Conn. 1989); Dworkin v. St. Francis Hosp., Inc., 517 A.2d 302, 306 (Del. Super. Ct. 1986); Lake Hosp. & Clinic, Inc. v. Silversmith, 551 So. 2d 538 (Fla. Dist. Ct. App. 1989); Satilla Health Servs., Inc. v. Bell, 633 S.E.2d 575, 580 (Ga. Ct. App. 2006); Robles v. Humana Hosp. of Cartersville, 785 F. Supp. 989, 1001 (N.D. Ga. 1992); Silver v. Castle Mem'l Hosp., 497 P.2d 564 (Haw. 1972); Miller v. St. Alphonsus Reg'l Med. Ctr., Inc., 87 P.3d 934, 943-44 (Idaho 1994); Adkins v. Sarah Bush Lincoln Health Ctr., 544 N.E.2d 733 (Ill. 1989); Pepple v. Parkview Mem'l Hosp., Inc., 536 N.E.2d 274, 276 (Ind. 1989); Dutta v. St. Francis Reg'l Med. Ctr., Inc., 867 P.2d 1057 (Kan. 1994); McElhinney v. William Booth Mem'l Hosp., 544 S.W.2d 216, 218 (Ky. 1976); Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730, 756 (La. 1994); Bartley v. E. Maine Med. Ctr., 617 A.2d 1020 (Me. 1992); Sadler v. Dimensions Healthcare Corp., 836 A.2d 655 (Md. 2003); St. Louis v. Bay State Med. Ctr., Inc., 568 N.E.2d 1181, 1187-88 (Mass. App. Ct. 1991); Feyz v. Mercy Mem'l Hosp., 719 N.W.2d 1 (Mich. 2006); Campbell v. St. Mary's Hosp., 252 N.W.2d 581 (Minn. 1977); Wong v. Garden Park Cmty. Hosp., Inc., 565 So. 2d 550 (Miss. 1990); N. Valley Hosp., Inc. v. Kauffman, 544 P.2d 1219, 1224 (Mont. 1976); Babcock v. Saint Francis Med. Ctr., 543 N.W.2d 749 (Neb. Ct. App. 1996); Clark v. Columbia/HCA Info. Servs., Inc., 25 P.3d 215 (Nev. 2001); Bricker v. Sceva Speare Mem'l Hosp., 281 A.2d 589 (N.H. 1971); Greisman v. Newcomb Hosp., 192 A.2d 817 (N.J. 1963); Clough v. Adventist Health Sys., Inc., 780 P.2d 627 (N.M. 1989); Mason v. Cent. Suffolk Hosp., 819 N.E.2d 1029, 1031 (N.Y. 2004); Lohrmann v. Iredell Mem'l Hosp., Inc., 620 S.E.2d 258, 262 (N.C. Ct. App. 2005), Van Valkenburg v. Paracelsus Healthcare Corp., 606 N.W.2d 908, 917-18 (N.D. 2000); Bouquett v. St. Elizabeth Corp., 538 N.E.2d 113 (Ohio 1989); Straube v. Emanuel Lutheran Charity Bd., 600 P.2d 381, 386 (Or. 1979); Lyons v. St. Vincent Health Ctr., 731 A.2d 206, 211 (Pa. Commw. Ct. 1999); Hagan v. Osteopathic Gen. Hosp., 232 A.2d 596, 600 (R.I. 1967); Mahan v. Avera St. Luke's, 621 N.W.2d 150 (S.D. 2001); Lewisburg Cmty. Hosp. v. Alfredson, 805 S.W.2d 756, 759 (Tenn. 1991); E. Tex. Med. Ctr. Cancer Inst. v. Anderson, 991 S.W.2d 55 (Tex. App. 1998); Brinton v. IHC Hosps., Inc., 973 P.2d 956 (Utah 1998); Woodard v. Porter Hosp., Inc., 217 A.2d 37 (Vt. 1966); Med. Ctr. Hosps. v. Terzis, 367 S.E.2d 728, 730 (Va. 1988); Rao v. Auburn Gen. Hosp., 573 P.2d 834 (Wash. Ct. App. 1978); Mahmoodian v. United Hosp. Ctr., Inc., 404 S.E.2d 750, 755 (W. Va. 1991); Seitzinger v. Cmty. Health Network, 676 N.W.2d 426 (Wis. 2004); Garrison v. Bd. of Trs. of Mem'l Hosp. of Laramie County, 795 P.2d 190, 193 (Wyo. 1990); Balkissoon v. Capitol Hill Hosp., 558 A.2d 304, 307 (D.C. 1989).
Separate Opinion:NoneThis slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
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