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October 9, 1970

Isidore SHULMAN, Plaintiff,

Pratt, District Judge.

The opinion of the court was delivered by: PRATT

This matter was tried before the Court without a jury on September 3, 1970. Plaintiff, a licensed physician in active practice in Washington, D.C., and the metropolitan area, seeks a declaratory judgment that his dismissal from the courtesy staff at the Washington Hospital Center without a formal hearing violated his constitutional due process rights, constituted a breach of contract, maliciously interfered with his professional and business relations, and violated his statutory civil rights.

 Defendant Washington Hospital Center is a non-stock, non-profit corporation, originally organized by private individuals in 1949. Although the current physical plant was constructed by the United States Government, it was transferred to defendant for full value in 1952 under a five-party contract, pursuant to an Act of Congress which specifically empowered the Administrator of GSA to make the sale to "private agencies," Act of Congress, September 4, 1947, 71 Stat. 610. The hospital receives no public funds other than partial reimbursement for the treatment of indigents, and its corporate affairs are managed by a Board of Trustees, none of whom are employees of any government.

 Plaintiff's status as a member of the courtesy staff was terminated on the recommendation of the Medical Advisory Committee on December 12, 1962 that his privileges not be renewed for various reasons, including his alleged failure to cooperate with the medical staff in carrying out the hospital's teaching function. After approval of the Medical Advisory Committee's recommendation by the full Medical Board on January 7, 1963, plaintiff first heard that his privileges had not been renewed on January 10, 1963. Plaintiff had not been formally notified of any complaints against him, nor had he been offered an opportunity for refutation. His later request for a statement of charges and a chance to confront complainants was refused. On June 12, 1963, Dr. Shulman filed his first suit in this court, claiming, among others, a violation of his right to due process. Judge Holtzoff granted defendants' motion for summary judgment on the ground that the Center was a private hospital, and thus had the right in its discretion to exclude any physician from practicing therein, free from judicial scrutiny, assuming the action taken conformed procedurally to the corporation's constitution, by-laws, rules and regulations. See Shulman v. Washington Hospital Center et al., D.C., 222 F. Supp. 59 (1963).

 Dr. Shulman, in the same action, was granted leave to file an amended complaint. On August 5, 1964, Judge Jones, in an unreported decision, again granted defendants' motion for summary judgment, holding that the earlier decision was res judicata as to the due process claim. On appeal, the case was remanded for dismissal without prejudice, pending exhaustion of administrative remedies within the hospital. See 121 U.S. App. D.C. 64, 348 F.2d 70 (1965). Following that mandate, defendants have taken all steps required under the hospital by-laws and regulations for both revocation and nonrenewal, although plaintiff was at no time given the names of the complainants or a full, evidentiary hearing assisted by counsel. Plaintiff argues that annual reappointments to the staff are automatic and, therefore, the hospital should have followed the revocation procedures. The Court of Appeals did not reach that question, but observed that:

"The by-laws yield no clear answer. But if, for example, annual reappointment occurs as a matter of course, refusal to reappoint might be a 'revocation' within the meaning of § 4B." 348 F.2d at 72 (D.C. Cir. 1965)

 Based on a complete examination of the applicable hospital procedures, the pleadings in this case, and after trial at which evidence was introduced, the Court finds that the action of the defendants in failing to renew plaintiff's appointment was taken in accordance with the Hospital Center's procedural requirements set forth in its constitution, by-laws, rules and regulations. The Court further finds that, contrary to plaintiff's argument, the revocation procedure is inapplicable here, that reappointment is not automatic, but requires recommendation each year by the Medical Staff, and that Dr. Shulman's 1962 appointment had expired at the end of the calendar year. There was, therefore, no outstanding and existing appointment requiring revocation. Even if revocation were the proper procedure, however, the hospital complied with those rules also.

 Although the Court is of the opinion that the earlier decisions of Judge Holtzoff and Judge Jones are res judicata as to plaintiff's due process claim, the record contains ample independent grounds for concluding that the Washington Hospital Center is a "private" as distinct from a "public" institution, for the purposes of determining what sort of judicial review is applicable to its actions in managing its staff. It is clear that this hospital does not have the close governmental ties, either financial or managerial, which would justify its being classified as public. All of the cases cited by plaintiff to support its argument that defendants should be subject to constitutional standards of due process which require notice, hearing, stated reasons for dismissal, and the right of confrontation, involve hospitals which received substantial government aid for operation or construction, see Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied 376 U.S. 938, 84 S. Ct. 793, 11 L. Ed. 2d 659 (1964); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964); Citta v. Delaware Valley Hospital, 313 F. Supp. 301 (E.D. Pa. 1970), and/or which were the only hospitals in the area, and thus acquired a quasi-public character, see Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968); Burkhart v. Community Medical Center, 432 S.W. 2d 433 (Ky. Ct. App. 1968); Foster v. Mobile County Hospital Board, 398 F.2d 227 (5th Cir. 1968). The Court holds that defendant Washington Hospital Center, as a private institution, has the right to remove members of its staff, free from judicial review, so long as its own regulations are followed as was done in this case.

 As for Dr. Shulman's other claims, the Court finds that no contract existed between the hospital and plaintiff which would entitle him to relief. Members of the courtesy staff are allowed to treat their private patients at the hospital when space is available, and they have access to other facilities of the Center which are incident to modern medical care, but there is not a formal or informal agreement which is binding between any physician on the courtesy staff and the hospital. Staff members are not compensated by the hospital, and they may resign at will, or may maintain membership without ever treating any patients there whatsoever.

 Likewise, the Court finds that none of the individual defendants, all of whom acted in some administrative capacity, maliciously interfered with plaintiff's professional relationships. They were acting in the scope of their positions in failing to renew plaintiff's appointment. While not necessary to the decision in this case, their actions appear from the record to have had substantial justification. Not only was no malice on the part of any individual ever shown, Dr. Shulman did not prove any damage, either monetary or to his professional reputation. He continues to retain staff privileges at several hospitals in the area, and it is unquestioned that he finds adequate facilities to treat his patients. The Court takes judicial notice of the fact that none of the more than twenty hospital complexes in the area is able to grant privileges to all the physicians who desire them.

 Last, for the same reasons discussed above in relation to the due process claim, none of the actions of the hospital or the individual defendants were taken "under color of law" in such a way as to violate plaintiff's civil rights under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Compare Meredith v. Allen County War Memorial Hospital Commission, supra ; Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); and Citta v. Delaware Valley Hospital, supra.

 Findings of fact, conclusions of law, and an order consistent with the above have been entered.


 This case came on for trial on September 3, 1970, and upon consideration of the pleadings, the evidence and testimony adduced at the hearing and the Trial Memoranda of Law of the parties in support of their respective positions, the Court makes the following Findings of Fact and Conclusions of Law.

 Findings of Fact

 1. This is an action for declaratory and injunctive relief as well as for compensatory and punitive damages.

 2. Plaintiff, Isidore Shulman, is a resident of the State of Maryland, and a duly licensed physician in active practice in Washington, D.C., and the metropolitan area, specializing in internal medicine and cardiology.

 3. Defendant, Washington Hospital Center, is a non-stock, non-profit corporation, organized by private individuals on August 15, 1949, under the authority of Title 29, Section 601 of the District of Columbia Code.

 4. Defendant, Thomas W. Mattingly, is a resident of the State of Maryland and was Chairman of the Department of Medicine and Director of Medical Education as well as a Senior Attending Physician on the Medical Staff of the ...

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