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

Clemens HACKETHAL, M. D., Plaintiff and Appellant, v. Arthur S. WEISSBEIN, M. D., Defendant and Respondent.

Clemens HACKETHAL, M. D., Plaintiff and Appellant, v. Irving L. SPRATT, M. D., Defendant and Respondent.

Clemens HACKETHAL, M. D., Plaintiff and Appellant, v. J. Lamont MURDOCH, M. D., Defendant and Respondent.

Civ. Nos. 19123 to 19125.

Decided: July 06, 1978

Arthur J. Jaffee, Pomona, for plaintiff and appellant. Wilson, Borror & Dunn and Lucien Van Hulle, San Bernardino, for defendants and respondents Weissbein and Spratt. Moore, Graves & Madory and Richard E. Madory, Tustin, for defendant and respondent Murdoch.


Plaintiff, Clemens Hackethal, M. D., appeals from three judgments of dismissal entered after demurrers were sustained without leave to amend his complaints filed against defendants, Arthur Weissbein, M. D., Irving Spratt, M. D., and J. Lamont Murdoch, M. D. The complaints were identical except for the named defendants, and the cases have been consolidated for purposes of appeal.

Each complaint is cast in two causes of action, and the material allegations pertinent to this appeal may be summarized as follows:

Plaintiff is a physician and surgeon, licensed by the State of California and is a board qualified specialist in the field of internal medicine. Prior to these events, plaintiff was a member in good standing of the San Bernardino County Medical Society (hereinafter SBCMS), which membership was and is a substantial contractual property right and was, and is, an important requirement for the practice of medicine.

On or about November 26, 1975, plaintiff was charged by the public service committee of the SBCMS with a number of violations of the principles of ethics of the American Medical Association. Thereafter, hearings were held before the judicial commission of the SBCMS resulting in plaintiff's expulsion from membership in the SBCMS. Defendants appeared as witnesses and presented information derogatory of plaintiff and his methods of medical practice and supportive of the allegations against him.

The first cause of action of each complaint seeks damages on the ground that the testimony was given negligently in that defendants did not make reasonable efforts to obtain the true facts, and they did not reasonably believe that their testimony was warranted by facts known to them. The second cause of action alleges that the same declarations were motivated by malice.

The demurrers were sustained without leave to amend on the ground that the testimony before the judicial commission (council) of the SBCMS was absolutely privileged under Civil Code section 47, subdivision 2.1

Civil Code section 47 reads in pertinent part as follows:

“A privileged publication or broadcast is one made

“. . .ile

“2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law; . . .

“3. In a communication, without malice, to a person interested therein, . . .”

The privilege provided in subdivision 2 of section 47 is absolute. All that is required is that the statement be relevant to the litigation and that it be made to achieve the objects of the litigation. If the publication meets those tests, it is immaterial that the publisher may have acted with malice. (Spira v. Superior Court (1976) 62 Cal.App.3d 33, 35, 133 Cal.Rptr. 24.) The privilege provided in subdivision 3 is conditional in that it applies only if the publication is made in good faith and without malice. Since plaintiff's action rests entirely upon alleged injury resulting from testimony given by the defendants during disciplinary proceedings before the judicial commission of the SBCMS, the action is precluded if the testimonial privilege applies. However, since the second cause of action in each complaint alleges malice, the action is not precluded if the doctors are merely entitled to the conditional or qualified privilege as provided in subdivision 3 of section 47 or as provided in section 43.8.2 Therefore, the sole issue to be determined in this appeal is whether the absolute immunity provided in section 47, subdivision 2, is applicable to disciplinary proceedings before the judicial commission of the San Bernardino County Medical Society. The answer will depend on whether such proceedings are among the other official proceedings authorized by law mentioned in subdivision 2.

It is now well established that the absolute privilege is applicable not only to judicial proceedings but also to quasi-judicial and quasi-legislative proceedings. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865, 100 Cal.Rptr. 656.) The primary factors to be considered in determining the nature of the proceedings were explicated in Ascherman, as follows: “(1) whether the administrative body is vested with discretion based upon investigation and consideration of evidentiary facts, (2) whether it is entitled to hold hearings and decide the issue by the application of rules of law to the ascertained facts and, more importantly (3) whether its power affects the personal property rights of private persons . . ..” (Id., at p. 866, 100 Cal.Rptr. at p. 659.) Where the proceeding is required by law to be conducted pursuant to a fair procedure, including notice and hearing, and the agency holding the hearing performs an important public duty and decides issues of significant public concern, the courts have held that absolute immunity applies. (Id., at p. 866, 100 Cal.Rptr. 656.)

In Ascherman, the plaintiff, a physician and surgeon, applied for staff privileges at a hospital owned and operated by a hospital district. By statute a hospital district is empowered to make rules and regulations restricting membership on the medical staff to physicians and surgeons found to be competent and of good character. The court emphasized that it is common knowledge that a surgeon or physician who is not permitted to practice in a hospital is, as a practical matter, denied his right to fully practice his profession. (See also, Wyatt v. Tahoe Forest Hospital Dist. (1959) 174 Cal.App.2d 709, 345 N.Y.S.2d 93.) Therefore, the court held, the hearings on the physician's staff privileges were quasi-judicial in character and any statements made therein or preliminary thereto were absolutely privileged.

In Goodley v. Sullivant (1973) 32 Cal.App.3d 619, 108 Cal.Rptr. 451, the court held that the absolute privilege afforded by Civil Code section 47, subdivision 2, applied to statements by two doctors charging another doctor with professional misconduct made in meetings of a private hospital's executive and grievance committees in connection with the suspension of the accused doctor from the hospital staff.

Plaintiff seeks to distinguish the cases related to hospital staff privileges on the ground that those proceedings are specifically authorized by statute,3 whereas, the SBCMS is a voluntary organization, being a local chapter of the California Medical Association (hereinafter CMA), which in turn has no disciplinary authority over physicians or their licensure. Plaintiff also argues that membership in the CMA is not required as a part of licensure in California, nor is such membership a prerequisite to hospital staff privileges. We have no evidence, nor is there any allegation in the complaint, to the effect that membership in the CMA is never considered in granting staff privileges. We limit our consideration to the law and the pleadings. Examination of the relevant statutes reveal the accuracy of plaintiff's statements relative to licensing and disciplinary proceedings. (See Bus. & Prof. Code, s 2190, et seq. for licensing provisions and s 2123, et seq. for disciplinary provisions.)

Nevertheless, the complaint alleges that membership in SBCMS is a substantial right and is an “important requirement for the practice of medicine.” Moreover, it is common knowledge, well established in case law, that membership in professional societies such as defendant conveys substantial benefits to the member in the practice of the profession. The California Supreme Court, in a line of cases culminating in Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253 (Pinsker II), has held that in proceedings involving the expulsion of members from a “public service” organization, procedural fairness is an indispensable prerequisite. The court's initial Pinsker opinion (Pinsker v. Pacific Coast Soc. of Orthodontists (1969) 1 Cal.3d 160, 166, 81 Cal.Rptr. 623, 460 P.2d 495 (Pinsker I)) held that in light of the special position occupied by defendant organization in the professional field of orthodontics “an applicant for membership has a judicially enforceable right to have his application considered in a manner comporting with the fundamentals of due process, including the showing of cause for rejection.” In Pinsker II the court concluded that such proceedings must be conducted pursuant to a fair procedure, which requires at the very least that the member or prospective member be given notice of the charges against him and a fair opportunity to defend himself. (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at pp. 555-556, 116 Cal.Rptr. 245, 526 P.2d 253; see also Ezekial v. Winkley (1977) 20 Cal.3d 267, 142 Cal.Rptr. 418, 572 P.2d 32.)

Plaintiff's attempt to distinguish the present proceeding from cases involving exclusion or expulsion from membership on a hospital staff was anticipated and rejected by the court in Pinsker II. After relying on Wyatt v. Tahoe Forest Hospital Dist., supra, 174 Cal.App.2d 709, 345 N.Y.S.2d 93 and Martino v. Concord Community Hosp. Dist. (1965) 233 Cal.App.2d 51, 43 Cal.Rptr. 255, to establish that the requirement of procedural fairness adheres in exclusion as well as expulsion cases, the court stated: “Although the Wyatt and Martino cases involve rejections of membership for a hospital staff rather than for a professional association, in view of the fiduciary responsibilities imposed on the defendant associations because of their ‘public service’ functions, the prior cases are not distinguishable from the present matter. In each instance, the courts uphold judicial review because denial of membership would effectively impair the applicant's right ‘to fully practice his profession.’ ” (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at pp. 553-554, 116 Cal.Rptr. at p. 254, 526 p.2d at p. 262, emphasis added.)

In view of these authorities, we conclude that under the pleadings the hearing conducted with respect to plaintiff's expulsion from SBCMS qualifies as a quasi-judicial proceeding by the standard applied in Ascherman v. Natanson, supra, 23 Cal.App.3d 861, 865, 100 Cal.Rptr. 656. The hearing was a proceeding not merely authorized but mandated by law. The hearing was required to be conducted pursuant to a fair procedure, and the power of the judicial commission affected a substantial contractual right which is important to the practice of medicine. The absolute privilege of subdivision 2 of Civil Code section 47 applies.

Plaintiff next contends that by enacting Civil Code sections 43.7 and 43.8 the Legislature intended to exclude the hearings described therein from the absolute privilege provided by Civil Code section 47, on the ground that particular statutes control over general statutes, and, therefore, the conditional privilege of those sections must control over the absolute privilege of section 47, subdivision 2.

As to section 43.8, the very language of the section belies plaintiff's contention.4

As to section 43.7, the same argument was made and rejected by the Court of Appeal in Goodley v. Sullivant, supra, 32 Cal.App.3d 619, at page 624, 108 Cal.Rptr. 451, at page 454, as follows: “The difficulty with (the) argument, however, is that section 43.7 has nothing to do with defamations. Section 43.7 provides a conditional privilege ‘for any act or proceeding undertaken or performed’ by the members of a medical committee. (Italics added.) ‘Hospital staffs and medical and other professional organizations (as defined in (section 43.7)) commonly have committees to review the practices of its members and to recommend disciplinary action. Section 43.7 will prevent civil suits for damages by expelled or disciplined members against any such committee member. . . .:’ (36 State Bar J. (1961) at p. 667.) It seems clear, therefore, that section 43.7 is concerned with the actions taken by a medical committee (i. e., refusing, suspending, or revoking hospital privileges to any doctor) and is not concerned with possible defamatory publications made by such a committee. Since we hold that section 43.7 is not applicable to defamations, it follows then that section 43.7 is not inconsistent with section 47, subdivision 2, and (the) argument, therefore, must fail.” We agree with the court's analysis in Goodley v. Sullivant.

The defendants' testimony was vested with the absolute privilege under Civil Code section 47.

The judgments are affirmed.


1.  All references are to the Civil Code unless indicated otherwise.

2.  Section 43.8 provides as follows:“In addition to the privilege afforded by Section 47, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of such person to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or division, committee or panel of such licensing board, peer review committee, or underwriting committee described in Section 43.7 when such communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing arts and does not represent as true any matter not reasonably believed to be true. The immunities afforded by this section and by Section 43.7 shall not affect the availability of any absolute privilege which may be afforded by Section 47.”

3.  Business and Professions Code section 2392.5 provides that a hospital having five or more physicians must establish rules that specifically include provisions that the hospital must be organized into a medical staff with appropriate by-laws, that the medical staff must be self-governing, and that the medical staff must be limited to doctors who are competent, worthy in character, and worthy in professional ethics.

4.  See footnote 2.

MORRIS, Associate Justice.

GARDNER, P. J., and McDANIEL, J., concur.