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District Court of Appeal, First District, Division 3, California.

Ben ROSNER, Petitioner and Appellant, v. EDEN TOWNSHIP HOSPITAL DISTRICT, a Public Corporation, Paul F. Rhodes, Thomas Pierce, William Stone, Lew M. Warden, jr., and Dan O. Druge, Respondents. *

Civ. 19928.

Decided: May 15, 1962

Robert R. Elledge, Modesto, Harry Gonick, Oakland, for appellant. J. W. Moroney, Hayward, for respondents.

Petitioner filed an application for appointment to the medical staff of the defendant Eden Township Hospital District, hereafter referred to as the hospital. The application was denied without a hearing by the hospital board, hereafter referred to as the board. The petitioner then brought an action in the Superior Court seeking to compel his admission to the medical staff of the hospital. In that action the parties entered into a stipulation, and the court made an order directing petitioner to file a new application with the hospital, and further directing the board to hold a public hearing on petitioner's application, to grant him the right to produce witnesses in support of his application, to cross-examine witnesses, and further required the hearing to be fully reported. The board appointed Mr. John McDonough, acting dean of the Stanford Law School, as its hearing officer, and determined to proceed and conduct the hearing according to the provisions of the California Administrative Procedure Act (Gov.Code, § 11,445 et seq.). The board fixed a time and place of hearing and gave notice to petitioner to the effect that the subject to be considered would be ‘the application of Ben Rosner, M.D. for medical staff privileges at Eden Hospital, and all matters relevant thereto.’ Hearings began January 12th and continued through March 24, 1960. A quorum of the board was present at all hearings—the same members being present at each hearing. A great mass of exhibits was received in evidence. The reporter's transcript before us is in eight volumes of 2345 pages. At the conclusion of the hearings the board made a general finding that petitioner was ‘temperamentally unsuited for hospital practice’, and denied his application for medical staff privileges. Later the board reopened the hearings for the purpose of ‘expanding the findings' and adopted further findings to the effect that petitioner was ‘not competent in his field by reason of temperamental unsuitability for hospital staff practice’. At the same time additional findings were made relating to professional ethics and character, but in view of our ruling on the question of competence, we deem it unnecessary to discuss those findings in this opinion. At its final hearing the board reaffirmed its previous determination denying petitioner's application for medical staff privileges.

The petitioner again sought a writ of mandate to compel his admission to the medical staff. At the hearing on the return to the writ the record of the proceedings before the board was received in evidence, and the matter submitted. The court considered the record, made findings, denied the peremptory writ, and this appeal followed. One of the findings of the trial court was ‘That Dr. Rosner is not competent in his field by reason of temperamental unsuitability for hospital staff practice.’

The defendant hospital is organized under the provisions of ‘The Local Hospital District Law’ (Health & Saf.Code, § 32,000 et seq.). The board is charged with the duty of conducting the hospital ‘according to the best interests of the public health’, and is given the power to ‘make and enforce * * * rules * * * necessary for the administration * * * of hospitals under their management * * *.’ (Health & Saf.Code, § 32,125). Section 32,128 of the Health & Safety Code requires the board of directors of the hospital to enact rules providing for a medical staff. The rules must provide ‘* * * that membership on the medical staff shall be restricted to physicians and surgeons competent in their respective fields * * *.’ Article III, Section 1 of the rules of the board provides that an applicant for membership on the medical staff ‘* * * shall submit evidence and proof of superior competence and general ability in his field * * *.’ Section 5(c) of Article III provides that the Credentials Committee of the medical staff shall ‘* * * by appropriate methods of examination, determine the applicant's characteristics of cooperation, apparent ability to get along with others, and general qualifications of personality which would insure in the opinion of the committee, that the applicant would be tempermentally [sic] and psychologically suited for cooperative staff hospital functions with other members of the Medical Staff and with other hospital personnel.’

Petitioner contends that the findings of the trial court and the judgment based thereon are not supported by the evidence. This, of course, involves an attack upon the findings of the board, since the trial court determined from its examination of the record that there was substantial evidence before the board to justify its denial of petitioner's application. The possession by petitioner of a valid license to practice medicine in this State does not ipso facto entitle him to membership on the staff of the defendant hospital. To be eligible for membership on the staff he must also meet the added requirements of Health & Safety Code, section 32,128, namely, be competent in his field, worthy in character and in professional ethics. No vested right of petitioner's is involved. Our review of the record, therefore, is limited by the substantial evidence rule. We must affirm if we find substantial evidence in the record to support the judgment of the trial court. (Code Civ.Proc. § 1094.5(c); McDonough v. Goodcell, 13 Cal.2d 741, 91 P.2d 1035, 123 A.L.R. 1205; Housman v. Board of Medical Examiners, 84 Cal.App.2d 308, 190 P.2d 653, 192 P.2d 45; McDonough v. Garrison, 68 Cal.App.2d 318, 156 P.2d 983; Glick v. Scudder, 69 Cal.App.2d 717, 160 P.2d 90; Foster v. McConnell, 162 Cal.App.2d 701, 329 P.2d 32; County of Contra Costa v. Social Welfare Board, 199 A.C.A. 499, 18 Cal.Rptr. 573; Corcoran v. S. F. etc. Retirement System, 114 Cal.App.2d 738, 251 P.2d 59; 3 Witkin, Calif.Proc., 2484.)

We have examined the record and find clear evidence that petitioner had numerous and vigorous disputes with doctors and nurses at many hospitals where he had staff privileges; that at one hospital the entire nursing staff threatened to resign as a result of disputes involving petitioner; that petitioner had psychiatric care or psychiatric ‘evaluation’ on at least three separate occasions, one involving a stay of several weeks at the Menninger Clinic; that a psychiatrist whose letter is in evidence stated that ‘His tendency to be overly self-assertive might interfere with satisfactory relations to the rest of the Staff. * * * Personally, I like Dr. Rosner and I coudl recommend him for the Visiting Staff without reservation if he were less litigious and contentious.’ It is true that in his oral testimony petitioner sought to explain each of his disputes at various hospitals and to demonstrate that he was right and others wrong, but the board was required to evaluate all of this evidence, including petitioner's version of his disputes with others, and to exercise its best judgment, in good faith and in the public interest, on the whole record. The board could reasonably conclude from the evidence before it that the pattern of dispute and discord which seems to follow petitioner would be brought in to the hospital if petitioner should be admitted to the medical staff, and that this would not be in the public interest. It was the determination of the board that petitioner was not competent in his field, in that he was temperamentally unsuited for hospital staff practice for the reason that he could not get along and work with his associates in the medical field within the meaning of the board's rule as expressed in Article III, Section 5(c). We find in the record substantial evidence to support the findings and judgment of the trial court.

Petitioner also argues that the standards for admission to the medical staff of the hospital, as fixed by the board, particularly the requirements set forth in Article III, Section 5(c), are so vague, ambiguous and uncertain as to be invalid as a matter of law.

Article III, Section 5(c) of the rules of the board is in effect an elaboration of the statutory requirement dictated by section 32,128 of the Health & Safety Code, that physicians and surgeons, in order to qualify for the staff of the hospital, must be ‘competent in their respective fields.’

The statutory requirement that physicians and surgeons be ‘competent in their respective fields' embraces within its meaning not merely technical competence, the result of education, training, observation and experience, but includes also qualities of personality, temperament and emotional stability necessary for the effective use of the technical skills possessed by an applicant for admission to the medical staff of the hospital. It presupposes the ability to work cooperatively with others. The efficient operation of a hospital requires all of its employees and staff to act harmoniously in the spirit of cooperation. In the field of surgery—and petitioner here is a surgeon—the necessity for cooperative team effort is of critical importance. The large number of patients, doctors and nurses in one establishment, and the delicate condition of the sick and injured, requires that a hospital be operated with a maximum of cooperation and efficiency and a minimum of friction and discord. For these reasons a physician who lacks the ability to work effectively and in harmony with others is not competent to engage in hospital staff practice within the meaning of the term ‘competent’ as that term is used in section 32,128 of the Health & Safety Code.

We think nothing said here is contrary to Wyatt v. Tahoe Forest Hospital Dist., 174 Cal.App.2d 709, 345 P.2d 93. In that case, the board denied a physician staff membership, largely on hearsay evidence, and without a hearing. The court required the board to grant petitioner a hearing in accordance with well recognized principles of law.

A public or a private hospital is not required to admit to its staff every physician who applies. It may select members of its visiting staff with regard not only to their medical skill and competence, but also with regard to their adaptability to the rules and regulations of the institution. (Van Campen v. Olean General Hospital, 210 App.Div. 204, 205 N.Y.S. 554.) A hospital may safeguard its own interests, as well as the public interest, in exercising discretion in good faith in the make-up of its medical staff. (Dayan v. Wood River Township Hospital, 18 Ill.App.2d 263, 152 N.E.2d 205.) In Glass v. Doctors Hospital, 213 Md. 44, 131 A.2d 254, the court upheld the dismissal of a doctor from the medical staff of a hospital where it found the doctor could not work in harmony with others, and whose presence on the medical staff caused friction and discord in the operation of the hospital. We recognize, of course, that a mere subjective test of the likes or dislikes of the examining board, or of part or even all the staff members, cannot be used to bar an applicant from admission to the staff. Here, however, there is strong evidence of petitioner's general inability to cooperate with others in the medical field, in a number of hospitals.

We have not overlooked petitioner's contention that all parties stipulated he was competent in his field. The record does not support this contention. It is true that petitioner's technical training and education were not questioned or doubted, and the hearing officer stated on several occasions that the question of ‘competence’ was ‘out of the case’. Other portions of the record demonstrate, however, that such comments had reference only to petitioner's competence in the technical sense, and did not embrace the broader meaning of that term as suggested in Article III, Section 5(c) of the rules of the board. Throughout the record it is evident that at all times the board continued its inquiry into the question of competence in its broader sense, including that of personality and temperament, in a conscientious effort to determine petitioner's suitability for staff practice.

The petitioner also contends he was denied procedural due process of law in that no accusation was filed against him; he was limited in his cross-examination of witnesses, and that the hearing officer was not chosen in the manner required by law. None of these contentions has any merit. The board conducted its hearings by order and direction of the superior court. It was proper for the board to use the California Administrative Procedure Act (Gov.Code, § 11,445 et seq.) as a guide in its proceedings, but compliance with the order of the court was all that was necessary.

Finally, petitioner urges he was denied due process of law because one witness refused to answer one question on cross-examination. The record shows this witness was uncertain as to his possible liability for defamation in the event he answered petitioner's question, and it was for this reason an answer was refused. The petitioner could have moved to strike the testimony of this witness but did not do so, and cannot now complain. We observe, also, that petitioner's cross-examination of other witnesses was extensive, comprising approximately 500 pages of the stenographic record, and that it probed in detail the testimony of at least 8 witnesses. There is, therefore, no substance whatsoever in petitioner's claim he was denied the right to cross-examine witnesses.

Our review of the record demonstrates that petitioner has been accorded the basic requirements of procedural due process of law, namely, notice and an opportunity to be heard, and there is no support in the record for his assertion that he has been denied his constitutional rights under the Fourteenth Amendment to the Constitution of the United States. (Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692; Ohio Bell Tel. Co. v. Public Utilities Comm'n., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093.)

The judgment is affirmed.

SALSMAN, Justice.

DRAPER, P. J., and DEVINE, J., concur.