Paul A. Stern v. Tarrant County Hospital District v. George J. Luibel

755 F.2d 430, 1985 U.S. App. LEXIS 29972

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 7, 1985
• Docket: 83-1638
• Status: Published

Opinions

ALVIN B. RUBIN, Circuit Judge:

A Texas statute forbids state agencies to differentiate among physicians solely on the basis of their academic medical degrees.¹ Five licensed physicians, each of whom has had at least two years of postdoctoral training in a program accredited by the American Osteopathic Association, challenge the constitutionality of a requirement imposed by a state-agency hospital that, to practice in the hospital, a physician must have completed two years of post-doctoral training in a program accredited by the Accreditation Committee on Graduate Medical Education, which accredits only programs in institutions aligned with allo-pathic medicine. The district court, 565 F.Supp. 1440, held that the hospital rule unconstitutionally denied osteopathic physicians equal protection of the laws, in violation of the fourteenth amendment. We affirm the judgment on the basis that a state agency’s discriminatory action when state law commands equality is a patent denial of equal protection to those denied equality.

I.

John Peter Smith Hospital is operated by the Tarrant County Hospital District, a Texas state agency. Before 1974, the hospital bylaws permitted a physician to be a member of its staff only if he was a member of the Tarrant County Medical Society, an association which admitted only allo-paths. In 1974, this was changed to require graduation with a degree of Doctor of Medicine (M.D.) from a school accredited by the Council on Medical Education of the American Medical Association. The Council accredits only allopathic schools and only allopathic schools award the M.D. degree; osteopathic schools award the degree Doctor of Osteopathy (D.O.). The requirements for admission to the hospital staff were again changed in 1979. The requirement of an M.D. degree was deleted, and instead, staff members were required to be licensed by the state and to have two years of post-doctoral training in a program accredited by the Accreditation Committee.

The predecessor to the Accreditation Committee² was created in 1970, and none of the graduate training programs that existed before that time were accredited by it. To avoid disqualifying physicians who received training before 1970, the bylaws of the hospital were rewritten in 1980 and 1981 to require post-doctoral training in a program accredited by the Committee only for initial appointment to the staff. Physicians already on the staff were thus automatically exempted from the requirement.

The parties stipulated that the sole reason the plaintiffs were denied staff privileges was because they had trained in osteopathic-institution programs. There are presently four osteopathic physicians on the staff of the hospital. Each of them, however, received post-doctoral training while in military service at hospitals approved by the predecessor to the Accreditation Committee.

In 1981, the Texas state legislature enacted the Medical Practice Act and declared its intention “to prohibit differentiation solely on the basis of the academic medical degree held by” a licensed physician in determining medical staff appointments.³ The Act recognizes that all physicians are examined by the same board, pass the same examination, and meet the same standards, “irrespective of academic medical degree.”⁴ In order to be licensed under the Act, a physician must have graduated from an approved medical school, but both schools accredited by the Accreditation Committee and those accredited by the American Osteopathic Association are approved.

In findings not challenged on appeal, the district court found that presently there is no substantial difference between accredited medical schools conferring the M.D. degree and those that confer the D.O. degree except that students attending osteopathic schools are required to take several courses on manipulative therapy. The court described as non-substantial the philosophical differences between allopathy and osteopathy.

Until recently, osteopathic physicians were unable to obtain training in programs approved by the Accreditation Committee on Graduate Medical Education. Today, as we understand the record, they are able to do so in various governmental programs and certain other specialized programs.

II.

The parties raise a number of issues, including whether it is reasonable for a hospital to treat allopathic and osteopathic physicians differently. Because of the later changes in medical education, the hospital invites us to follow, and the osteopathic physicians urge us to disregard, the Supreme Court’s 1927 decision in Hayman v. City of Galveston.⁵ The Court there held that a hospital’s decision to exclude osteopaths was neither arbitrary nor unreasonable because it was based on the necessity of choosing between various methods of treatment. In the same opposing fashion, the parties also urge us to affirm or to reconsider and reject the statements in our opinion in Berman v. Florida Medical Center, Inc.,6 an action dismissed because it involved a private hospital, but in which we said that a public hospital may deny staff privileges to a physician simply because he is an osteopathic physician.⁷

We find it unnecessary to reach so far. Equal protection of the law requires not only that statutes be equal on their face but also that they be executed so as not to deny equality.⁸ “A law that is administered so as to unjustly discriminate between persons similarly situated may deny equal protection.”⁹ There is even more striking administrative discrimination when a state law that ordains equal treatment is applied so as to deny that equality the statute requires. The fact that the discriminatory action is taken by a state agency other than the legislature does not permit it to escape the fourteenth amendment for “state action, of the kind that falls within the prescription of the Equal Protection Clause of the Fourteenth Amendment, may be brought about through the state’s administrative and regulatory agencies just as through the legislature.” ¹⁰

The Texas Medical Practice act expressly mandates that Texas institutions accord equal treatment “to all who desire to practice medicine, irrespective of academic medical degree.”¹¹ Thus, the Texas legislature has determined that, for purposes of determining medical staff appointments, osteopathic and allopathic physicians are “similarly situated.” Because the Tarrant County Hospital District’s bylaws discriminate between persons similarly situated, those osteopathic physicians who are now excluded from admission to the hospital staff solely because their training was in a program approved by the American Osteopathic Association rather than by the Accreditation Committee have been denied the equality afforded them by Texas law.

Federal constitutional protection may turn on state-created rights. Thus, whether a state employee who has been discharged without notice and hearing has been denied property without due process depends on whether he had state-created rights that created a cognizable property interest in his continued employment.¹² Similarly, when the state creates a school system, it creates an entitlement in students, giving them a right to attend unless that right is terminated with due process of law.¹³

Because the state itself has required its agencies to treat allopathy and osteopathy alike, it is not necessary for us to consider whether the state might, if it chose to do so, find a rational basis for distinguishing between allopathic and osteopathic physicians generally. The Texas Medical Practice Act mandates that Texas institutions must accord equal treatment to professionals educated in either philosophy.

The hospital contends that, because the Act was adopted in 1981, it is not applicable in this case which concerns a standard adopted in 1979. This disregards both the nature of this action, a suit to affect future, instead of past, actions, and the rule stated by the Supreme Court in Bradley v. School Board of the City of Richmond:¹⁴ “[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.”¹⁵

The hospital makes the sophistic argument that its admission requirement does not turn on the physician’s academic medical degree, but on the nature of the institution at which he received his post-doctoral training. Those physicians who were excluded by the requirement, however, were prevented from receiving training in a program acceptable to the Accreditation Committee by the fact that they had D.O. degrees, and they were able to receive equivalent training only in an osteopathic-institution program. The nature of their academic medical degree, therefore, is the differentiating factor.

For these reasons, the judgment is affirmed insofar as it applies to osteopathic physicians who received their post-doctoral training before they could be admitted to a program accredited by the Accreditation Committee. Because the question was not presented below and not urged to us on appeal, we express no opinion on the constitutionality of the hospital rule as applied to osteopaths who now have, or who have had in the past, the opportunity, equally with allopaths, to attend a training program accredited by the Accreditation Committee, but choose not to exercise that option.

The district court judgment is, therefore, AFFIRMED.

1 . Texas Medical Practice Act, Tex.Rev.Civ.Stat. Ann. art. 4495b (Vernon Supp.1984).

2 . The accrediting group was originally the Lia-son Committee on Graduate Medical Education. This was changed in 1981 to the Accreditation Committee.

3 . Tex.Rev.Civ.Stat.Ann. art. 4495b, Subchapter A, § 1.02(9) (Vernon Supp.1984).

4 . Id.

5 . 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927).

6 . 600 F.2d 466 (5th Cir.1979).

7 . But see Dooley v. Barberton Citizen’s Hospital, 11 Ohio St.3d 216, 465 N.E.2d 58 (1984) (hospital may not adopt standards for staff membership that are not reasonably related to accepted measures of skill, education and competence).

8 . Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

9 . Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir.1984); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349 (9th Cir.1982); Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir. 1981).

10 . Robinson v. State of Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771 (1964); see Columbus Board of Education v. Penick, 443 U.S. 449, 457 fn. 5, 99 S.Ct. 2941, 2946 fn. 5, 61 L.Ed.2d 666 (1979).

11 . Tex.Rev.Civ.Stat.Ann. art. 4495b, Subchapter A, § 1.02(9) (Vernon Supp.1984).

12 . Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709-10, 33 L.Ed.2d 548 (1972). See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430-31, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982); Jones v. Orleans Parish School Board, 679 F.2d 32, 36 (5th Cir.1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983).

13 . Goss v. Lopez, 419 U.S. 565, 573-74, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975); Debra P. v. Turlington, 644 F.2d 397, 403-04 (5th Cir.1981).

14 . 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).

15 . Id. at 711, 94 S.Ct. at 2016, 40 L.Ed.2d 476 (1979). The Fifth Circuit, of course, follows the Supreme Court’s enunciation. See Petrou Fisheries, Inc. v. I.C.C., 727 F.2d 542, 545 (5th Cir. 1984); Sandefur v. Cherry, 718 F.2d 682, 684 (5th Cir. 1983).