MILLER v. EISENHOWER MEDICAL CENTER

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Court of Appeal, Fourth District, Division 2, California.

Donald A. MILLER, Plaintiff and Appellant, v. EISENHOWER MEDICAL CENTER, Defendant and Respondent.

Civ. 19619.

Decided: September 25, 1979

Volk, Newman, Marsh, Gralla & Karp, Bruce H. Newman and James H. Karp, Los Angeles, for plaintiff and appellant. Weissburg & Aronson, Inc., Albert C. Mour, Carl Weissburg, and Douglas B. Schwab, Los Angeles, for defendant and respondent.

OPINION

Plaintiff, a physician, appeals from a judgment denying his petition for a writ of mandate to compel defendant to grant him staff privileges at its hospital. Plaintiff's application for staff membership was denied on the basis of a medical staff bylaw provision that only physicians who can document “their ability to work with others with sufficient adequacy to assure the medical staff and the Board of Trustees that any patient treated by them in the hospital will be given a high quality of medical care . . .” will be appointed. The principal issue on this appeal is whether that membership qualification is valid.

In the court below, the matter was argued and submitted for decision on the pleadings and the record of the proceedings of the medical staff committee and the hospital's board of trustees. The pertinent facts disclosed by that record may be summarized as follows:

Plaintiff is a board certified family physician and a member of the American Academy of Family Physicians. Since 1970, he has been practicing in Indio, California. Defendant is a nonprofit hospital corporation that owns and operates a private hospital known as the Eisenhower Medical Center in Palm Desert, California. Plaintiff originally applied for staff privileges at the medical center in 1971, but withdrew that request and reapplied in 1972. His 1972 application was denied in 1973 and he reapplied in 1974. Following denial of his 1974 application, he sought a hearing pursuant to the medical staff bylaws but the request was denied as being untimely.

Plaintiff reapplied in 1975 submitting the names of 25 physicians whom the medical executive committee might contact for recommendations concerning plaintiff's suitability for membership.1 After soliciting comments from all of plaintiff's references, the medical executive committee informed plaintiff that his application for appointment to the staff was denied “on the basis of the recommendations received from references furnished by you.”2

In accordance with the medical staff bylaws, plaintiff made timely application for a hearing before a judicial review committee.3 Plaintiff was furnished with a verbatim copy of the comments made by his references, but his request to know the names of those persons who had made adverse comments was denied on the ground that confidentiality of the names was essential to the evaluation process. At the hearing, plaintiff appeared on his own behalf and the medical executive committee was represented by a member of the defendant's medical staff. The representative of the executive committee reported that plaintiff's references gave him “good support from the standpoint of your professional competence, your knowledge and your adequacy of training” but that the executive committee felt that plaintiff “came up wanting” in the responses to the inquiry whether he would be an asset to the medical center staff. Plaintiff was permitted to present four medical doctors as witnesses on his behalf. They all testified favorably respecting plaintiff's medical competence and were of the opinion that he would be an asset to the medical center staff. One said that plaintiff was sometimes “a little impetuous” about things he wanted done but that in the long run his ideas were constructive. The other doctor responded to a question concerning plaintiff's interpersonal relationships by saying he had heard “rumors” but had personally neither observed nor experienced any personality conflicts with plaintiff. One doctor described plaintiff as a “controversial” person in that he tended to be more forceful and outspoken than other physicians concerning the competence of doctors, that he was a more “flamboyant” and “forceful” personality than others. At this hearing, plaintiff was also questioned about matters of which he had not been given prior notice, including the circumstances surrounding his dismissal from an internship program and the number and nature of lawsuits in which he had been involved.

The judicial review committee upheld the executive committee's decision, stating that its conclusion was based upon its “determination that sufficient doubt exists concerning Dr. Miller's ability to work with others as stated in Article III, section 2 of the Medical Staff By-Laws.”4

Plaintiff appealed the judicial review committee decision to an appellate review committee of the medical center's board of trustees as provided by the medical staff's bylaws.5 Before the hearing, counsel for the board of trustees advised plaintiff that the basis upon which his application for staff membership had been denied was “his failure to comply with section 2a of the Medical Staff By-Laws and, in particular, the failure to document his good reputation and ability to work with others.” Plaintiff was also informed that the medical executive committee would call two witnesses to testify regarding is ability to work with others and would present evidence relating to the termination of his internship and concerning a controversial letter he had written to the Health Planning Association. Plaintiff was permitted to be represented by counsel and to present witnesses on his own behalf.

The two doctors called by the executive committee testified that plaintiff's reputation in the medical community for his ability to get along with others was poor. They both had prior business relationships with plaintiff; one was associated with plaintiff in the ownership of a hospital and the other had been associated with plaintiff in practice. Three of the four doctors who testified for plaintiff before the judicial review committee hearing testified on plaintiff's behalf at the appellate review hearing. Their testimony was substantially the same as that given at the earlier proceeding.

The executive committee introduced into evidence a letter from the medical director of the hospital in Illinois where plaintiff had served a portion of his internship in 1961 and 1962, explaining that plaintiff's internship was terminated before completion. During the proceeding before the judicial review committee when plaintiff was asked why he had a divided internship he stated that he could not recall the precise details. The executive committee also introduced a letter dated July 28, 1975, written by plaintiff to the executive director of the Comprehensive Health Planning Association objecting to the granting of an application by Desert Hospital in Palm Springs for additional beds. The letter sought reversal of the CHPA decision alleging that there was an agreement between Desert Hospital and defendant medical center to suppress any opposition to the application. The letter contained derogatory remarks concerning the establishment of the Eisenhower Medical Center.6

After the hearing, plaintiff was informed by letter from the executive director of defendant that “the Board of Trustees of Eisenhower Medical Center has determined that substantial evidence was produced at both your judicial review committee hearing and the hearing before the appellate review committee of this board to support the previous decision of the medical staff that you did not meet the requirements for membership on the medical staff of Eisenhower Medical Center. Therefore, the Board of Trustees has affirmed the actions of the medical staff and denied your application for such membership.”

The trial court rendered an intended decision in favor of the hospital in which it determined that all proceedings were conducted in a manner comporting with fair procedure; that the requirements for membership were rational and not arbitrary, capricious or contrary to public policy; and that the defense of laches was applicable. Its determination of laches was based on the fact that defendant's bylaws provide for medical staff appointments of one year's duration and for annual staff evaluations in order to insure that staff physicians currently meet the requirements of staff membership.7 Findings of fact and conclusions of law were signed and filed in accordance with the intended decision and a judgment denying the petition for writ of mandate was entered.

Although plaintiff raises several contentions, the dispositive issues are: (1) Whether the bylaw qualification for membership that an applicant must document “his ability to work with others” is valid and (2) whether the finding of laches is supported by the evidence. In the ensuing discussion, we conclude that the membership requirement relied upon to deny plaintiff's application is too vague and uncertain to be valid and further that the finding of laches is not supported by the evidence. Accordingly, we have concluded that the judgment should be reversed with directions to enter judgment for the issuance of a peremptory writ of mandate commanding defendant to grant plaintiff staff privileges at its hospital.

I

VALIDITY OF THE BYLAW

California courts have long barred use of standards for medical staff membership at public hospitals which are so vague and uncertain as to permit arbitrary, capricious or discriminatory denial of membership. As early as 1959, a Court of Appeal held that a rule similar to the bylaw applied to plaintiff in this case was “too vague and uncertain to be used as the basis for the exclusion of an applicant.” (Wyatt v. Tahoe Forest Hospital Dist., 174 Cal.App.2d 709, 715, 345 P.2d 93, 97.) The Tahoe Forest Hospital bylaw provided that membership shall be limited to physicians and surgeons “whose background, experience and training insures, in the judgment of the Board of Directors, that any patient admitted to or treated in the Tahoe Forest Hospital will be given the best possible care and professional skill.”8 (Id., at pp. 712-713, 345 P.2d at p. 95.) The court held that under the standard admission to staff membership can depend on the “whim and caprice of the directors.” (Id., at p. 715, 345 P.2d at p. 97.)

In 1962, our Supreme Court invalidated a hospital district's medical staff bylaw very much like that utilized by defendant in denying plaintiff's request for staff privileges. (Rosner v. Eden Township Hospital Dist., 58 Cal.2d 592, 25 Cal.Rptr. 551, 375 P.2d 431 (Rosner I ).)9 The court based its holding partly on the ground that Health and Safety Code section 32128 enumerated the exclusive standards to be used by district hospitals in evaluating requests for staff membership.10 Beyond that, however, the court rested its decision on the broader proposition that the hospital district should not be permitted to adopt standards for staff privileges which are “so vague and ambiguous as to provide a substantial danger of arbitrary discrimination in their application.” (Id., at p. 598, 25 Cal.Rptr. at p. 555, 375 P.2d at p. 435.) The court noted that denial of hospital staff privileges would effectually deny a qualified physician the right to fully practice his profession and that the fact that a doctor “has been ‘unable to get along with’ ” some hospital colleagues is an insufficient ground for excluding him from use of hospitals. (Id., at p. 598, 25 Cal.Rptr. at p. 554, 375 P.2d at p. 434.) “The goal of providing high standards of medical care requires that physicians be permitted to assert their views when they feel that treatment of patients is improper or that negligent hospital practices are being followed. Considerations of harmony in the hospital must give way where the welfare of patients is involved, and a physician by making his objections known, whether or not tactfully done, should not be required to risk his right to practice medicine.” (Id., at p. 598, 25 Cal.Rptr. at p. 555, 375 P.2d at p. 435.)

The reasoning of Rosner I and Wyatt that staff membership standards must not be so vague and uncertain as to provide a substantial danger of arbitrary or discriminatory application was followed in Martino v. Concord Community Hosp. Dist., 233 Cal.App.2d 51, 59-60, 43 Cal.Rptr. 255. The medical staff bylaws of the Concord Community Hospital District empowered the credentials committee to investigate the character, competence, ability and reputation of the applicant and to conduct a hearing at which the applicant shall be given such oral or written tests as the committee shall “in its discretion determine.” The reviewing court observed that “(i)n determining what tests to require of an applicant and, again, in determining whether an applicant has successfully passed whatever tests it may have required, the credentials committee has no standards to guide it except that it shall admit to staff membership physicians who will provide patients with ‘the best possible care and professional skill’ and whose hospital staff experience, qualifications, temperament and general suitability for staff practice are ‘compatible with a coordinated and competent hospital staff.’ ” (Id., at p. 59, 43 Cal.Rptr. at p. 259-260.)11 The court held the examination requirement to be invalid.

Since 1974, the rationale of Rosner I, Rosner II (Rosner v. Peninsula Hospital Dist., 224 Cal.App.2d 115, 25 Cal.Rptr. 551, 375 P.2d 431), Wyatt and Martino pertaining to standards for medical staff membership in public hospitals has been extended to private hospitals. In that year the court in Ascherman v. San Francisco Medical Society, 39 Cal.App.3d 623, 643, 114 Cal.Rptr. 681, 693 (Ascherman I ), declared that “even a private hospital may not . . . arbitrarily exclude a qualified physician from the use of its facilities.” In the same year our Supreme Court, citing Ascherman I with approval, recognized “the common law principle that whenever a private association is legally required to refrain from arbitrary action, the association's action must be both substantively rational and procedurally fair.” (Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal.3d 541, 550, 116 Cal.Rptr. 245, 251-52, 526 P.2d 253, 259-260 (Pinsker II ).) The court went on to apply this principle of substantive and procedural fairness to a dentist's application for membership in orthodontist societies. In the following year, an appellate court applied the principle of Pinsker II to a private hospital's medical staff bylaw which required an applicant to submit three letters of recommendation from members of that hospital's medical staff before his application would be entertained. The court held that the bylaw requirement was unreasonable because it had “the inherent grave danger that members of the active staff may seek to exclude certain applicants because they are of a certain race, religion, ancestry, because they have testified against them in malpractice suits, or simply because they do not like them . . . .” (Ascherman v. St. Francis Memorial Hosp., 45 Cal.App.3d 507, 513, 119 Cal.Rptr. 507, 511 (Ascherman II ).)

Thus, the teachings of Rosner I and Wyatt that a hospital's medical staff membership requirements may not be so vague and ambiguous as to present the danger of arbitrary or discriminatory exclusion extend to private hospitals. (See Ezekial v. Winkley, 20 Cal.3d 267, 274, 142 Cal.Rptr. 418, 572 P.2d 32.) Applying those principles to the case at bench, the bylaw12 requirement for membership invoked to deny plaintiff staff privileges ability to work with others is too vague and ambiguous for uniform, nonarbitrary and nondiscriminatory application. The bylaw fails to provide sufficient objective criteria for evaluators to know how to apply it and it can be used as an instrument to exclude a physician from practice simply because some doctors may dislike him or disapprove his outspokenness, admission practices specifically disapproved in Rosner I and Ascherman II. In the case at bench, plaintiff's unpopularity with certain doctors appears to stem from his “flamboyant” and “forceful” personality, his readiness to speak his mind and because he was sometimes “a little impetuous” about things he wanted done. There is no evidence, however, that his relationship with other doctors had any adverse effect on the standard of care rendered to plaintiff's patients. We are here concerned with the qualification of a doctor for staff membership in a hospital, not for membership in a private country club. Medical staff membership in a hospital implicates a doctor's right to fully practice his profession and not the enjoyment of his social life. Consequently, although our role in adjudicating the validity of standards for admission to staff membership in a private hospital is a limited one, when a prescribed standard is so vague, uncertain and lacking in objective criteria as to render it subject to arbitrary, capricious and discriminatory application, it is our duty to declare the standard invalid. We hold that the bylaw in question fails to meet the standard of substantive rationality required by California law.

Defendant argues that the Rosner I decision was based only on Health and Safety Code section 32128 as it then read and is no longer viable since the section's amendment. Defendant maintains that the trial court correctly based its decision on an Oregon Supreme Court case (Huffaker v. Bailey, 273 Or. 273, 540 P.2d 1398) which found a bylaw identical to the one in question to be substantively rational. As we noted above, however, Rosner I was based only in part on an explication of former section 32128; the decision was also grounded on the rationale that the bylaw was too vague and ambiguous and lacked substantive rationality. And, as we have explained above, our Supreme Court's approving references to the Rosner I reasoning in recent cases, confirms our conclusion that the Rosner I holding on substantive rationality applies to private hospitals. (See Ezekial v. Winkley, supra, 20 Cal.3d 267, 274, 142 Cal.Rptr. 418, 572 P.2d 32; Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d 541, 544, 116 Cal.Rptr. 245, 526 P.2d 253 (Pinsker II ).)13

The dissent urges that the goal of providing good hospital care requires that a private hospital's governing board be given the greatest possible latitude in evaluating prospective medical staff members, in line with the policies of Oregon and Hawaii as expressed in Huffaker v. Bailey, supra, 540 P.2d 1398, and Silver v. Castle Memorial Hospital, supra, 497 P.2d 564. Under this view, arbitrary or discriminatory actions in selecting staff physicians would be remedied on a case-by-case basis through judicial review of a hospital board's exercise of its discretion. California's public policy, however, as reflected in numerous cases decided since Rosner I, requires judicial invalidation of standards of selection which would allow for arbitrary or discriminatory application in any instance. Our Supreme Court has concluded that the “public” nature of even the private hospital setting and the effect of a hospital governing board's staffing decisions on a physician's ability to practice his chosen profession, require that standards of staff selection be substantively rational and susceptible to even-handed application to all candidates.

II

THE DEFENSE OF LACHES

The equitable defense of laches is codified in Civil Code section 3527: “The law helps the vigilant, before those who sleep on their rights.” It is well established by case law that, in order for a defendant to assert laches on plaintiff's part, he must show not only that plaintiff has delayed in filing suit, but either that the delay had been prejudicial to defendant or that plaintiff has acquiesced in defendant's action. The prejudice to defendant cannot be presumed from plaintiff's delay; it must be shown. Conti v. Board of Civil Service Commissioners, 1 Cal.3d 351, 362, 82 Cal.Rptr. 337, 461 P.2d 617; Duskin v. San Francisco Redevelopment Agency, 31 Cal.App.3d 769, 774, 107 Cal.Rptr. 667; 5 Witkin, Cal. Procedure (1971) pp. 3896-3898.) Since the question of laches is primarily one for the trial court, a finding of laches will not be overturned if there is substantial evidence for its support. (Teixeira v. Verissimo, 239 Cal.App.2d 147, 158, 48 Cal.Rptr. 496; Rouse v. Underwood, 242 Cal.App.2d 316, 323, 51 Cal.Rptr. 437.)

We note that plaintiff delayed for a period of 1 year and 17 days before filing the present suit. However, defendant introduced no evidence at the instant trial that plaintiff's delay caused actual prejudice to defendant medical center; indeed, the cause was submitted solely on the administrative record. The medical staff's bylaws do call for only one year appointments to the staff and for an annual review and reappointment process involving a report by the head of each medical department for the purpose of making sure that staff members continuously meet the qualifications for staff membership.14 However, there is no showing that members are required to provide any new information or additional documents concerning their qualifications each year, that the medical center has undergone significant administrative changes or altered its appointment process since plaintiff's latest application, that the medical staff membership has been filled to capacity so that there is no room for plaintiff or just how rigorous the reappointment process actually is. In short, defendant failed to make any showing that it was prejudiced by plaintiff's delay.

Conversely, the record reveals that during the six years that plaintiff sought admittance to defendant's medical staff he was required to file only one or two applications. Defendant can hardly complain now of the “staleness” of plaintiff's application since it apparently acted consistently on information furnished by plaintiff some years in the past. Nor can we find any evidence that plaintiff's delay indicated his acquiescence in the medical center's decision to deny him staff privileges. We conclude that the trial court's finding of laches is not supported by the evidence.

III

DISPOSITION

The record shows that the only basis on which plaintiff's application for staff membership was denied was the finding of doubt concerning plaintiff's ability to work with others as prescribed in the staff bylaws. There was no administrative or judicial finding that plaintiff lacked any other qualification for staff membership. Since we conclude that the bylaw invoked to exclude plaintiff from access to staff privileges is without substantive rationality and that plaintiff's action was not barred by laches, the judgment is reversed with directions to issue a peremptory writ of mandate compelling defendant to grant plaintiff staff membership at its hospital.

I dissent. In a misguided effort to rescue one litigant from the consequences of his own irresponsible irascibility the majority preclude every hospital in the State of California from considering in medical staff admission decisions a factor vital to the competent operation of a hospital and the delivery of high quality medical services the ability of the physician-applicant to work cooperatively with others.

As has been cogently noted, “. . . it is difficult to understand how a hospital is to adhere to modern concepts of hospital administration if it cannot consider the ability of its staff members to cooperate . . ..” (Hospital Staff Privileges: The Need for Legislation, 17 Stanford L.Rev. 900, 916.) “When considering the interest of the patient, it is not enough that his doctor possess the necessary skills of his profession. The absence of a compatible team working together could impair the doctor's performance and consequently undermine the effectiveness of the treatment given the patient.” (Silver v. Castle Memorial Hospital (1972) 53 Haw. 475, 497 P.2d 564, 568.) “It has been pointed out that ‘considerations of team spirit and cooperativeness can be as important as technical skill in recommendations for staff appointments; or, put another way, professional competence in hospital practice should, according to modern hospital theory, include qualities needed for cooperative staff work.’ ” (Id., at p. 568, fn. 4, quoting from Hospital Staff Privileges: The Need for Legislation, supra, 17 Stanford L.Rev. at p. 905.)

I do not quarrel with the majority's statement of the rule of law that standards for admission to staff privileges may not be “so vague and ambiguous as to provide a substantial danger of arbitrary discrimination in their application.” (Rosner v. Eden Township Hospital Dist., 58 Cal.2d 592, 598, 25 Cal.Rptr. 551, 555, 375 P.2d 431, 435; accord: Ascherman v. Saint Francis Memorial Hosp., 45 Cal.App.3d 507, 513, 114 Cal.Rptr. 681; Martino v. Concord Community Hosp. Dist., 233 Cal.App.2d 51, 58-60, 43 Cal.Rptr. 255; Wyatt v. Tahoe Forest Hospital Dist., 174 Cal.App.2d 709, 715, 345 P.2d 93.) However, the conclusion of the majority that the standard here at issue is invalid under the stated rule is not required by the decisions nor does it serve sound public policy or promote the delivery of good medical services.

Admittedly, the substantive content of the standard “ability to work with others, with sufficient adequacy to assure . . . a high quality of medical care” cannot be quantified with precision, but “ ‘in the area of personal fitness for medical staff privileges precise standards are difficult if not impossible to articulate. * * * The subjectives of selection simply cannot be minutely codified. The governing board of a hospital must therefore be given great latitude in prescribing the necessary qualifications for potential applicants. . . .’ ” (Huffaker v. Bailey (1975), 273 Or. 273, 540 P.2d 1398, 1400, quoting from Sosa v. Board of Managers of Val Verde Memorial Hospital (5th Cir. 1971) 437 F.2d 173, 176-177.)

The evil in overly vague standards is the possibility of discriminatory or nonuniform application. (See Rosner v. Eden Township Hospital Dist., supra, 58 Cal.2d at p. 598, 25 Cal.Rptr. 551, 375 P.2d 431; Martino v. Concord Community Hosp. Dist., supra, 233 Cal.App.2d at pp. 59-60, 43 Cal.Rptr. 255; Wyatt v. Tahoe Forest Hospital Dist., supra, 174 Cal.App.2d at p. 715, 345 P.2d 93.) In my view, the standard, “ability to work with others, with sufficient adequacy to assure . . . a high quality of medical care,” is not so vague and indefinite as to require its invalidation.

Courts are required to apply laws uniformly and in nondiscriminatory fashion too, and judges appear to have no great difficulty in doing so even when dealing with such standards as “reasonable,” “good cause,” and “abuse of discretion.” Courts are called upon every day to apply standards the substantive content of which is no more definite that the standard here in question. The jurisprudential technique for insuring reasonably uniform and nondiscriminatory application of most legal standards is review for abuse of discretion. The same technique would serve well in the problem at hand. As the Supreme Court of Oregon stated in Huffaker v. Bailey, supra, 540 P.2d at pp. 1399-1400: “Rather than curtailing the discretion at the outset for failure to define that which would be difficult to define in any event, the court should more appropriately look to the exercise of the discretion to see if it has been abused.”

The trial court determined that respondent's decision not to grant appellant's application for staff membership was supported by substantial evidence and was not arbitrary or discriminatory and did not constitute an abuse of discretion. The trial court's determination was clearly correct. Viewing the evidence most favorably to the judgment and the administrative determination, a duty entirely neglected by the majority, an abundance of evidence is apparent from which respondent could quite properly conclude that appellant's admission to staff would, without any redeeming justification, be disruptive and endanger the quality of medical service to patients.

Dr. Russell Dunlop, a physician specializing in general surgery practicing in Indio and a member of the staff of respondent as well as the staffs of Indio Community Hospital and Valley Memorial Hospital, testified that appellant's reputation in the community for getting along with other members of the medical profession was bad; that “Dr. Miller creates dissension.” That virtually the entire staff at Indio Community Hospital was unhappy about appellant being on the staff there; that at least 10 named physicians on the staff at Indio Community Hospital had expressed to him their feeling that appellant should not be on that staff and 4 other physicians on that staff had expressed their unhappiness with appellant's staff membership, all within the preceding year. Dr. Dunlop stated that one of the reasons for appellant's reputation was the manner in which he conducted the emergency room at Indio Community Hospital when he was in charge of it. In Dr. Dunlop's opinion appellant admitted too may people to the emergency room and overtreated such people in an attempt to get the hospital “out of the red into the black.” Moreover, it was Dr. Dunlop's opinion that appellant had damaged the reputation of Indio Community Hospital by his conduct while in charge of its emergency room. In this regard Dr. Dunlop testified that when Indio Community Hospital was sold to a group of physicians, the purchasers required the sellers as a condition of the sale to pay off the appellant's emergency room contract; they would not enter into the transaction if appellant remained in charge of the emergency room.

Dr. Harold Tarleton who had been practicing in Coachella Valley testified that appellant did not get along with most members of the medical community. Dr. Tarleton also stated that the ability to get along with others in the hospital milieu, including committee work and staff work, is important to the overall quality of patient care and that appellant's inability to get along or work with others would impair respondent's ability to render effective patient care and would impair the quality of care furnished.

Appellant's inability to work well with others was verified to a large degree even by his own witnesses. For example, Dr. Pinnell stated that appellant had brought a number of different physicians to Coachella Valley to work with him and that many of them had become dissatisfied, apparently because they could not get along with appellant.

In addition, it cannot be overlooked that when appellant was asked whether he realized he had been involuntarily terminated from his internship at Cook County Hospital he gave evasive and less than candid answers. At the Appellate Review hearing a letter was introduced from the medical director of Cook County Hospital which showed that appellant served seven months of a rotating internship at Cook County Hospital from July 1961 until February 1962; that he received “D” (poor) for “physical examination, attitude toward patients, cooperation with other hospital personnel, and personality and appearance”; and that he was “asked to leave on February 1, 1962, before the completion of his Internship, because he did not assume his responsibilities to the hospital and his patients.” It is unlikely appellant “didn't remember” the details of the termination of his residency.

The cases relied upon by the majority do not compel invalidation of the standard. In Wyatt v. Tahoe Forest Hospital Dist., supra, membership to the medical staff was limited to licensed physicians and surgeons “whose background, experience and training insures, in the judgment of the Board of Directors, that any patient admitted . . . or treated . . . will be given the best possible care and professional skill.” (Id., at pp. 712-713, 345 P.2d at p. 95.) After holding that the applicable statute did not authorize the promulgation of such a standard the court “also . . . noted” that the rule was too vague and uncertain. (174 Cal.App.2d at p. 715, 345 P.2d 93.) The court's rhetorical questions are revealing: “What is the best possible care and professional skill? Would it limit the practice of medicine in the Tahoe District Hospital to physicians and surgeons who are recognized authorities in their respective fields? By what standards do the directors Who are all lay individuals determine what is the best possible care and professional skill? The standard set up is such that admission to the staff can depend on the whim and caprice of the directors.” (Id., emphasis added.)

In Martino v. Concord Community Hosp. Dist., supra, the bylaws of the medical staff authorized the credentials committee “ ‘to conduct a hearing at which the applicant shall be examined orally and in writing, be given such tests, oral and written, as the Credentials Committee shall in its discretion determine.’ ” (233 Cal.App.2d at p. 54, 43 Cal.Rptr. 255 at p. 259.) The court concluded: “(T)he examination requirement set forth in the medical staff bylaws . . . authorizes the credentials committee to require that an applicant take tests covering far more than his competence in his own particular field of medicine. It is . . . apparent that the examination requirement is couched in such vague and ambiguous language as to furnish the committee with no adequate standards for applying said requirement.” (233 Cal.App.2d at p. 60, 43 Cal.Rptr. 255 at p. 260.)

Cursory analysis of Rosner v. Eden Township Hospital Dist., supra, does lend some support to the majority's position. However, more detailed analysis discloses that it is not controlling. There the governing instruments provided “that an applicant for membership shall submit proof of worthiness of character, excellence of reputation as to professional ethics, and general suitability for hospital practice, and that the credentials committee in investigating the applicant shall determine his ‘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 temperamentally and psychologically suited for cooperative staff hospital functions with other members of the Medical Staff and with other hospital personnel.’ ” (58 Cal.2d at p. 596, 25 Cal.Rptr. at p. 553, 375 P.2d at p. 433.)

The court first restrictively interpreted the applicable statutory provisions and held that a public hospital district was not statutorily authorized to adopt such a standard for staff admission. Then the court, as a “(m) oreover,” stated the rule that standards that are so vague and ambiguous as to provide a substantial danger of arbitrary discrimination in their application are invalid. However, the court's application of the rule was to that part of the standard referring to temperamental unsuitability for hospital practice (58 Cal.2d at p. 598, 25 Cal.Rptr. 551, 375 P.2d 431); in the paragraph setting forth and discussing the void-for-vagueness rule, the part of the standard relating to the applicant's ability to get along with others was not mentioned. What the court stated with respect to that part of the standard was: “The fact that a doctor, Due to criticisms made by him relating to treatment of patients or hospital practices, has been ‘unable to get along with’ some doctors or hospital personnel is not a sufficient ground to exclude him from the use of hospitals. Obviously physicians will not always agree as to the proper treatment for a patient or as to the proper practices in a hospital.” (58 Cal.2d at p. 598, 25 Cal.Rptr. at pp. 554-555, 375 P.2d at pp. 434-435, emphasis added.)

A judicial decision cannot be properly interpreted without reference to its facts. With respect to that part of the standard dealing with inability to get along with others, what the court said and what it meant in the Rosner decision was that where the inability to get along with others is shown to have resulted from criticisms of treatment and procedures that the applicant felt were substandard, even negligent, the applicant cannot be denied admission to staff on that account. The facts in Rosner were that the applicant had criticized certain treatment, procedures and personnel to the end of obtaining better treatment for patients. As the court observed: “Insofar as the merits of the controversies occurring at those hospitals can be determined from the record before us, Dr. Rosner appears in a more favorable light than the other medical personal involved.” (58 Cal.2d at p. 595, 25 Cal.Rptr. at p. 553, 375 P.2d at p. 433.) Dr. Rosner stated his opinion that certain events constituted malpractice and had apparently testified for plaintiffs in malpractice cases. Underlying the entire decision was the court's revealing statement: “The goal of providing high standards of medical care requires that physicians be permitted to assert their views when they feel that treatment of patients is improper or that negligent hospital practices are being followed. Considerations of harmony in the hospital must give way where the welfare of patients is involved, and a physician by making his objections known, whether or not tactfully done, should not be required to risk his right to practice medicine.” (58 Cal.2d at p. 598, 25 Cal.Rptr. at p. 555, 375 P.2d at p. 435.)

In the case at bench the evidence firmly supports the conclusion that appellant's inability to work with others was not substantially related to any attempt on his part to improve the quality of medical services being furnished to patients. It is true that the executive committee introduced into evidence a letter written by appellant to the executive director of the Comprehensive Health Planning Association objecting to the granting of an application for additional beds by Desert Hospital in which he made derogatory statements about respondent, Desert Hospital and a number of other persons. A fragment of this letter (approximately one-half page of a five and a half page letter) is set forth in footnote 6 of the majority opinion. The fragment of the letter selected by the majority depicts appellant in a favorable light. In fact, however, in the letter appellant stated as facts that Desert Hospital had falsified the statistical data presented to CHPA, that Desert Hospital and respondent had colluded and entered into a secret agreement to eliminate all opposition to Desert Hospital's proposal for additional beds, that such agreement was carried out through misrepresentations “by attorneys and other community politicians” and constituted the “deliberate suppression of material contrary to Desert Hospital's proposed plan for additional hospital beds . . . because those individuals so representing the opposition were ‘bought off’ . . . .”

The trial court did not find that appellant was denied staff admission because of the fact he wrote that letter, and although the majority imply that that might have been a reason appellant's application for staff privileges was rejected, they refer to no evidence supporting that implication. Moreover, on being questioned about the letter appellant admitted that, other than hearsay, he had no awareness of the results of the Stanford University research project or, indeed, whether any such project was ever conducted. He could not recall whether he knew who was “bought off.” When asked whether he believed his statement that respondent hospital was supported by millionaires strictly as a tax gimmick, appellant stated: “Oh, I may have made a mistake at the time and I'll admit a lot of it was hearsay . . . .” In addition appellant admitted he did not have any facts with respect to the alleged tax gimmick involved and stated: “(M)aybe I was a little presumptuous.”

Were there a factual finding supported by evidence that appellant was denied staff membership on the basis of his writing the letter, the case might fall within the purview of the Rosner decision, but I am aware of no such finding or evidence. Moreover, it would hardly be unreasonable or irrational to conclude from the evidence that appellant's writing this letter, having the potential of seriously affecting the delivery of health care services in the desert area, without investigating the facts constituted the height of irresponsibility.

Appellant's other contentions are without merit. I would affirm the judgment.

FOOTNOTES

1.  It is unclear whether plaintiff actually submitted one or two application forms during his six-year attempt to gain membership on defendant's staff. The record contains only one application form, but there is a letter from plaintiff to defendant requesting that an old application form be used in a subsequent reapplication which indicates that plaintiff prepared two separate forms during these years.

2.  There were no adverse comments concerning plaintiff's professional capabilities or his competence as a physician; in fact, the comments on those qualifications were generally quite favorable to plaintiff. In response to the question whether plaintiff would be an asset to the defendant medical center staff, 15 responded in the affirmative; 2 responses were “possibly” and “could be”; 1 declined to express an opinion for lack of sufficient information of plaintiff; 2 had no responses to the question; 2 responded “no”; 1 responded: “Very controversial person. Has been disruptive in other situations”; and 1 responded: “I have no knowledge of Dr. Miller's plans regarding Eisenhower Medical Center. I do have knowledge of several physicians whose feelings are that they would think not.”

3.  Article VIII of the medical staff's bylaws reads in pertinent part:“Section 2. Request for Hearing“a. Notice of Decision. In all cases in which the body or committee which, under these bylaws has the authority to, and pursuant to this authority, has taken any of the actions constituting grounds for hearing as hereinafter set forth in subsection b. of Section 2 (Grounds for Hearing) of this Article, the applicant or Medical Staff member, as the case may be, shall promptly be given notice. Such applicant or member shall have ten days following the date of the receipt of such notice within which to request a hearing by the judicial review committee hereinafter referred to. Said request shall be by notice to the Executive Director. In the event the applicant or member does not request a hearing within the time and in the manner hereinabove set forth, he shall be deemed to have accepted the action involved and it shall thereupon become effective immediately.”

4.  Article III, section 2, reads in pertinent part:“Section 2. Qualifications for Membership“a. Only physicians and dentists licensed to practice in the State of California, who can document their background, experience, training and demonstrated competence, their adherence to the ethics of their profession, their good reputation, and their ability to work with others, with sufficient adequacy to assure the Medical Staff and the Board of Trustees that any patient treated by them in the hospital will be given a high quality of medical care, shall be qualified for membership on the Medical Staff. No physician or dentist shall be entitled to membership on the Medical Staff or to the exercise of particular clinical privileges in the hospital merely by virtue of the fact that he is duly licensed to practice medicine or dentistry in this or in any other state, or that he is a member of any professional organization, or that he had in the past, or presently has, such privileges at another hospital. No physician or dentist shall be entitled to apply for Associate membership on the Medical Staff who has reached age 70.”

5.  Article VIII, section 2, subdivision (i), provides:“Section 2. Request for Hearing.“. . .“i. The Appeal. The decision of the judicial review committee shall be considered final, subject only to the right of appeal as provided in Section 4 (Appeal to Board of Trustees) of this Article.”Article VIII, section 4 governs the time, grounds and nature of appellate review by the board of trustees. It allows for presentation of new evidence and witnesses, in addition to review of the record below.

6.  The letter read in part:“Problems in our Valley started five years ago with the additional (sic) of Eisenhower Medical Center. As you will recall, in order to attempt to justify the need for those additional beds in our community, the millionaires who supported that project strictly as a tax gimmick, subscribed to Stanford University to perform a research project to establish the need for beds here. To their dismay, and as most of us already knew, the report stated frankly that there was no need for additional beds in our community, and advised those individuals to look to other geographic areas if they truly wanted to supply needed community medical services. Nevertheless, Medical Center was constructed, due to political and regional influence, and the quality and organization of medical care in our community was badly disrupted. . . . There is no rhyme or reason to adding a single hospital bed in the Coachella Valley, and only because of the deliberate distortion, secret agreements and misrepresentation on which your original decisions were based, have those selfish powers proceeded thus far.”

7.  The medical staff bylaws read in pertinent part:Article III, section 1 provides:“Section 1. Nature of Medical Staff Membership“Membership on the Medical Staff of EMC is a privilege which shall be extended only to professionally competent physicians and dentists who continuously meet the qualifications, standards and requirements set forth in these bylaws.”Article III, section 3, subdivision (b), provides:“Section 3. Conditions and Duration of Appointment“. . .“b. Initial appointments shall be for a period extending to the end of the current Medical Staff year of the hospital. Reappointments shall be for a period of not more than one Medical Staff year. For the purposes of these bylaws, the Medical Staff year coincides with the calendar year.”Article V, section 2 provides:“Section 2. Reappointment Process“a. At least thirty (30) days prior to the final scheduled Board of Trustees' meeting in the Medical Staff year, the departmental chairman shall review all pertinent information available on each practitioner for the purpose of determining his recommendations for reappointments to the Medical Staff and for the granting of clinical privileges for the ensuing period, and shall transmit his recommendations, in writing, to the Executive Committee. Where nonreappointment or a change in clinical privileges is recommended, the reason for such recommendation shall be stated and documented.“b. Each recommendation concerning the reappointment of a Medical Staff member and the clinical privileges to be granted upon reappointment shall be based upon such member's professional competence and clinical judgment in the treatment of patients, his ethics and conduct, his attendance at Medical Staff meetings and participation in Staff affairs, his compliance with the hospital bylaws and the Medical Staff bylaws, rules and regulations, his cooperation with hospital personnel, his use of the hospital's facilities for his patients, his relations with other practitioners and his general attitude toward patients, the hospital and the public. If a Medical Staff member is a surgeon and he has reached age 62, annual physical examination shall be required. If other than a surgeon, at age 65 an annual physical examination shall be required. A copy of the report shall be sent to the chairman of the physician's department for reporting to the Executive Committee any impairment which would affect his medical practice.”

8.  The rule found irrational in Wyatt v. Tahoe Forest Hospital Dist., supra, 174 Cal.App.2d 709, 345 P.2d 93, read in pertinent part:“ ‘Membership to the medical staff shall be limited to those physicians and surgeons licensed to practice in the State of California, whose background, experience and training insures, in the judgment of the Board of Directors, that any patient admitted to or treated in the Tahoe Forest Hospital will be given the best possible care and professional skill. Possession of a license to practice as a physician and surgeon in the State of California shall constitute only a condition precedent to application, and shall not be itself determinative of the general competence, qualifications, reputation, or character of the applicant, or his general suitability for staff practice.’ ” (Id., at pp. 712-713, 345 P.2d at p. 95.)

9.  The bylaw struck down in Rosner I read in pertinent part:“(T)he credentials committee in investigating the applicant shall determine his ‘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 temperamentally and psychologically suited for cooperative staff hospital functions with other members of the Medical Staff and with other hospital personnel.’ ” (Id., at p. 596, 25 Cal.Rptr. at p. 553, 375 P.2d at p. 433.)

10.  Health and Safety Code section 32128 then stipulated that “membership on the medical staff shall be restricted to physicians and surgeons competent in their respective fields, worthy in character and in professional ethics . . . .” This provision was deleted in 1970.

11.  The pertinent provision of the Concord Community Hospital District bylaw read:“The Credentials Committee shall conduct an investigation of the character, competence, ability, and reputation of the applicant in the profession, and shall examine his background, experience, and training to insure that the best possible care and professional skill be provided patients; and shall further examine the applicant's prior hospital staff experience, qualifications, temperament, and general suitability for staff practice to insure that the same is compatible with a coordinated and competent hospital staff. In this connection it shall be within the power and authority of this committee to conduct a hearing at which the applicant shall be examined orally and in writing, be given such tests, oral and written, as the Credentials Committee shall in its discretion determine.” (Martino v. Concord Community Hosp. Dist., supra, 233 Cal.App.2d 51, 58, 43 Cal.Rptr. 255, 259.)

12.  See footnote 4, Ante.

13.  The Oregon Supreme Court in Huffaker v. Bailey, supra, 540 P.2d 1398, 1399-1401, concluded that the “sounder” or “better” view is that a standard such as the one in question in the case at bench is not impermissibly vague “and that the applicant's ability to work with others is a legitimate consideration reasonably related to the quality of patient care.” It cited a number of cases in support of these conclusions: Sosa v. Board of Managers of Val Verde Memorial Hospital, 5 Cir., 437 F.2d 173, 176; Shulman v. Washington Hospital Center, D.C., 222 F.Supp. 59, 63-64; Bricker v. Sceva Speare Memorial Hospital (1971), 111 N.H. 276, 281 A.2d 589, 593; Hagan v. Osteopathic General Hospital of R.I. (1967), 102 R.I. 717, 232 A.2d 596, 601; Sussman v. Overlook Hospital Ass'n (1967), 95 N.J.Super. 418, 231 A.2d 389, 393; Edson v. Griffin Hospital (1958) 21 Conn.Sup. 55, 144 A.2d 341, 345; Silver v. Castle Memorial Hospital (1972) 53 Haw. 475, 497 P.2d 564, 568; North Broward Hospital District v. Mizell (Fla.1962) 148 So.2d 1, 4-5.) We note that Sosa involved a county hospital and is directly contrary to Rosner I ; Edson and Shulman are inapposite since they are based on the theory, no longer given credence in this state, that private hospitals may dismiss or refuse to appoint physicians at will without giving reasons. Silver deals with the issue of procedural due process rights of a physician seeking reappointment to the staff of a “quasi public” hospital and the Hawaii court's introductory remarks concerning judicial review of staffing decisions in private hospitals are dicta. Finally, it is our conclusion that the view expressed by the Rosner-Wyatt line of cases in California is in fact the “sounder” view on this issue.

14.  See footnote 4, Ante.

TAMURA, Acting Presiding Justice.

MORRIS, J., concurs.

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