Volpicelli v. Jared Sydney Torrance Memorial Hospital

109 Cal. App. 3d 242, 167 Cal. Rptr. 610, 1980 Cal. App. LEXIS 2158

Opinions

Opinion

JEFFERSON (Bernard), Acting P. J.

*

More than two years after defendants terminated plaintiff physician’s membership on the medical staff of defendant hospital, the superior court granted plaintiff’s request for a preliminary injunction, ordering that he be given notice and hearing of the termination pursuant to the hospital’s bylaws, and that he be temporarily reinstated to the medical staff pending the hearing. Defendants appeal from the order granting the preliminary injunction.

I

Plaintiff is an internist. In 1958, he became a member of the staff of defendant hospital and of two other hospitals in the Torrance community. Of the three hospitals, only defendant hospital is a “Burn Center,” having facilities for treatment of burns. Plaintiff’s membership on the staff of defendant hospital was continuous until 1976, when a dispute arose over his refusal to pay an increase in annual staff dues from $25 to $40. On October 12, 1976, the medical executive committee of the hospital “deleted” his membership on the staff for his failure to pay the dues, and notified him of the termination by letter dated November 10, 1976. On March 9, 1979, he filed in the superior court a complaint seeking an injunction and other relief.

Argument at the preliminary injunction hearing focused on two issues: (1) whether defendants afforded plaintiff notice and hearing, pursuant to the bylaws of defendant hospital, before terminating his membership; and (2) whether denial of reinstatement to the staff would result in irreparable injury to plaintiff. The trial court resolved each issue in favor of plaintiff, and made an order granting the preliminary ¹

II

In seeking reversal of the preliminary injunction order, defendants advance the following contentions: (1) that plaintiff did not show irreparable injury; (2) that the “completed act” which terminated plaintiff’s staff membership cannot be redressed by preliminary injunction; (3) that plaintiff’s ultimate right to relief is “extremely doubtful” because he was “properly deleted” from the staff; (4) that by virtue of the preliminary injunction, the hospital and its patients will suffer greater hardship than plaintiff; (5) that plaintiff failed to exhaust all administrative remedies afforded by the hospital, and (6) that plaintiff is barred by laches.

Ill

We first consider the standard of review on an appeal from an order granting a preliminary injunction—here mandatory rather than prohibitory in nature. The granting of a preliminary injunction, even though the evidence with respect to the right therefor may be conflicting, rests in the sound discretion of the trial court and may not be disturbed on appeal except for an abuse of discretion. (People v. Mobile Magic Sales, Inc. (1979) 96 Cal.App.3d 1 [157 Cal.Rptr. 749].) The substantial evidence rule applies (City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41, 54 [137 Cal.Rptr. 883]), and we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order. (MCA Records, Inc. v. Newton-John (1979) 90 Cal.App.3d 18, 21 [153 Cal.Rptr. 153].) We deem it appropriate to point out, however, that the dissenting opinion simply ignores this standard of appellate review and proceeds at great length to usurp the trial court’s function by weighing the evidence and determining the credibility of witnesses in order to find an alleged abuse of discretion.

IV

The nature of a physician’s right to practice medicine within a hospital is not merely a personal right; it is a property interest which directly relates to the pursuit of his livelihood. (Edwards v. Fresno Community Hosp. (1974) 38 Cal.App.3d 702, 705 [113 Cal.Rptr. 579].) Such interest is clearly a fundamental right (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823 [140 Cal.Rptr. 442, 567 P.2d 1162]). It is a generally accepted principle that a hospital’s refusal to permit a physician to conduct his practice in the hospital, as a practical matter, may well have the effect of denying him the right to capably practice his profession. (Edwards v. Fresno Community Hosp., supra, 38 Cal.App.3d 702, 705.)

In the case before us, plaintiff had been a member of the staff of defendant hospital continuously for 18 years when defendants terminated his membership. Assuming that the termination was without notice and hearing, it is patently clear that plaintiff has been deprived of a valuable right without due process of law and that such deprivation of due process would, as the trial court noted, be irreparable. Defendants argue that the fact that plaintiff retained staff membership in two other hospitals precluded any harm to him from being irreparable. But this argument is illusory since plaintiff, as a physician, had a fundamental right to fully and capably practice his profession. Exclusion from one hospital out of three, with the one hospital being a burn center, certainly can bear substantially upon plaintiff’s ability to fully practice his profession. As the trial court noted, defendant hospital had a unique burn center not available at the other hospitals.²

An explicit finding of irreparable harm is not required to sustain a preliminary injunction. (Conover v. Hall (1974) 11 Cal.3d 842, 850 [114 Cal.Rptr. 642, 523 P.2d 682].) We conclude that there was sufficient showing of irreparable harm for issuance of the preliminary mandatory injunction herein.

Recent California decisions establish that before a public or private hospital may deny a doctor the right to practice his profession at that hospital, either by termination of existing staff privileges or by the denial of an initial application for such privileges, the hospital must provide a fair procedure which affords the doctor an opportunity to answer the “charges” upon which the exclusion rests. (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 468 [131 Cal.Rptr. 90, 551 P.2d 410].)

In the instant case, the bylaws of defendant hospital set forth provisions for notice and hearing as to suspension, termination, or nonreappointment of a staff member. The bylaws provide, in pertinent part, that if a member has been recommended for termination by the medical executive committee, the member may request a hearing before a judicial review committee within 15 days after he has received notice of the recommendation. Further provisions set forth the procedure for a hearing by the judicial review committee, presided over by a hearing officer appointed by the governing board, to consider and act upon the recommendation of the medical staff executive committee.³

On October 7, 1976, the medical staff sent plaintiff a letter stating that on October 12, 1976, the executive committee would consider his nonpayment of dues under provisions of the bylaws setting forth that termination of appointment or change of status might be recommended by the committee because of his nonpayment of dues.⁴

On October 12, 1976 (as shown by minutes of a meeting set forth in a declaration by defendant hospital’s staff coordinator), the medical executive committee, rather than making a recommendation, “deleted [plaintiff] from the Medical Staff of Torrance Memorial Hospital for failure to pay dues.” Thus, plaintiff was deleted—that is, terminated— by the executive committee. This action by the executive committee thereby prevented plaintiff from utilizing the notice and hearing procedure provided in the bylaws which would have permitted plaintiff to obtain a review of the executive committee’s action by the governing board of the defendant hospital.

It is to be noted that defendants do not specifically claim that plaintiff was afforded the administrative notice and hearing procedure provided in the bylaws. Rather, they assert that plaintiff’s termination was a “completed act” which could not legally be undone by way of preliminary injunction three years after the act. Defendants claim that the injunction was invalid because, in reality, it decided the merits of the action rather than preserving the status quo. In so doing, argue defendants, the mandatory preliminary injunction created a greater hardship to the hospital and its patients than to plaintiff.

In support of their “completed act” theory, defendants rely on Allen v. Hotel & Restaurant etc. Alliance (1950) 97 Cal.App.2d 343, 347-348 [217 P.2d 699], and McManus v. KPAL Broadcasting Corp. (1960) 182 Cal.App.2d 558, 563 [6 Cal.Rptr. 441]. These two cases announce the general rule that an injunction lies to prevent threatened injuries and has no application to completed wrongs for the redress of which a plaintiff is relegated to an action at law.

But the general rule or the rule of injunctive relief set forth in Allen and McManus is not without exceptions. A recognized exception to such rule is that an injunction may be granted with respect to “completed acts” if the wrongful acts involved are continued or repeated. (Fretz v. Burke (1967) 247 Cal.App.2d 741, 744 [55 Cal.Rptr. 879]; Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 372 [122 Cal.Rptr. 732].)

In the case at bench, one question presented is whether plaintiff could be fully redressed in an action at law for loss of, or serious damage to, his livelihood capacity by exclusion from use of the defendant hospital facilities. In addition, there was evidence presented that, after the medical executive committee had wrongfully deleted or terminated him from staff membership on October 12, 1976, defendants engaged in further acts directed toward continuing his exclusion from use of the defendant hospital. Thus, on November 10, 1976, a representative of the hospital sent plaintiff a letter stating that the executive committee had dropped him from the staff for his failure to pay dues. Upon receiving that November 10 letter, plaintiff requested a copy of the bylaws; but defendants refused the request. Absent a copy of the bylaws, plaintiff believed the erroneous statement in the medical staff letter sent to him on October 7, 1976, that, under the bylaws, he could not apply for reappointment to the staff for two years from the termination.

On November 3, 1977, plaintiff submitted an application for appointment to the staff, accompanied by letter stating that he would agree to appear before the credential committee to answer any questions bearing on his competency, but that he would not sign an exculpatory waiver attached to the application form, because, in his opinion, it would violate public policy. (See Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d 465, 480, holding that an exculpatory clause of such nature is invalid.) After an exchange of correspondence, plaintiff requested that his application for appointment (with refusal to sign the exculpatory claim) be accepted or denied, and that, if it were denied, he be given a hearing as provided by the bylaws. Defendants refused that request. In January 1978, plaintiff requested temporary privileges at the defendant hospital in order to admit for care two patients who specifically requested hospitalization therein. The request was denied, in part on the ground that he did not have a completed application on file (even though he had the aforementioned application on file, completed in all respects save execution of the exculpatory clause).

Thus, the record discloses, without equivocation, that, following plaintiff’s termination from his staff position, defendants continued a course of conduct toward plaintiff which can only be described as undue harassment to prevent his returning to the staff of the defendant hospital. Evidence of this course of conduct brings the instant case within the recognized exception to the rule that injunctive relief is not available to give redress to completed acts—the exception making injunctive relief available where the wrongful acts are repeated.

Nor is there merit to defendants’ contention that the preliminary injunction was invalid for assertedly deciding the case on the merits and not preserving the status quo. The granting of a preliminary injunction—whether it be prohibitory or mandatory in nature—does not amount to an adjudication of the ultimate rights in controversy. (West Coast Constr. Co. v. Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693, 702 [95 Cal.Rptr. 169]; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 [67 Cal.Rptr. 761, 439 P.2d 889].) Here, the preliminary injunction was necessarily of limited scope; it merely ordered that plaintiff be given a hearing on his termination from membership upon 15 days notice, and that he be reinstated to the staff pending the hearing (a short time at best), a status he had for 18 years before being terminated without notice and hearing as required by the bylaws of the defendant hospital. If defendants provide the notice and hearing in compliance with the mandatory preliminary injunction, and if, as they assert, plaintiff’s right to relief at the hearing is extremely doubtful, plaintiff will only have been reinstated to staff membership for an extremely short period of time.

With respect to relative hardship, defendants claim that, if the hospital is required to admit plaintiff to the staff immediately without first having opportunity to review plaintiff’s current medical skills, the hospital’s patients will be potentially endangered; the hospital will be forced to violate regulations pertaining to licensure and regulations pertaining to the medicare program; and, without being able to “credential” plaintiff, the hospital could be subjected to potential malpractice liability; whereas (according to defendants), hardship to plaintiff is “nonexistent.”

When the doctrine of relative hardship or balancing conveniences⁵ is invoked as a defense to injunctive relief, proof of irreparable injury to defendant is a necessary element of the defense. (Fairrington v. Dyke Water Co. (1958) 50 Cal.2d 198, 200 [323 P.2d 1001].)

Defendants’ arguments that an array of purported hardships would be visited upon them by the limited reinstatement of plaintiff to staff membership are untenable and completely lacking in merit. Reinstatement of plaintiff under the limited preliminary injunction ordered in this case provides plaintiff with access to defendant hospital’s facilities that is no greater than the access granted in the defendant hospital’s bylaws to uncredentialed physicians for temporary use of the facilities. Defendants’ fears that plaintiff may lack competency can hardly be considered as put forth in good faith since plaintiff’s credentials were satisfactorily reviewed periodically in the many years that he was a staff member before he was terminated; and during those years, and at the time of the trial court’s granting of the preliminary injunction, he was a member in good standing of the staff of two other hospitals in the community which apparently had comparable facilities and standards of care. Thus, when any potential hardship to defendant hospital and its patients is balanced against the hardship to plaintiff in being denied his fundamental right to practice his livelihood fully and capably, the trial court could easily and properly balance the conveniences and comparative hardships in plaintiff’s favor.

Finally, we review defendants’ contentions that issuance of the preliminary injunction (1) was barred by laches; and (2) was barred by plaintiff’s failure to exhaust administrative remedies. It is the position of defendants that, in the period after plaintiff was terminated from staff membership on the defendant hospital, he did not diligently seek relief through either administrative or judicial process.

The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice resulting from the delay. (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359 [82 Cal.Rptr. 337, 461 P.2d 617].)⁶ The defense of laches may be invoked only where refusal to do so would permit an unwarranted injustice to be done to the defendant. (McCullough v. Jones (1970) 11 Cal.App.3d 270, 276 [89 Cal.Rptr. 646].) In assessing the availability of this defense, each case must depend on its own facts. (Hopson v. Nat. Union etc. Cooks, Stewards (1953) 116 Cal.App.2d 320, 326 [253 P.2d 733].) Whether laches occurred in a particular case presents a question primarily for the trial court. An appellate court will not interfere with the trial court’s discretion unless it is obvious that manifest injustice has been done, or unless the trial court’s conclusions do not find reasonably adequate support in the evidence. (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 433 [96 Cal.Rptr. 902].)

The doctrine of exhaustion of administrative remedies has not hardened into inflexible dogma. (Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 [112 Cal.Rptr. 761].) It is excused where its pursuit would be futile, idle or useless (Jacobs v. State Bd. of Optometry (1978) 81 Cal.App.3d 1022, 1030 [147 Cal.Rptr. 225]), or would result in irreparable harm (Ogo Associates v. City of Torrance, supra, p. 834; Cal. Administrative Agency Practice (Cont.Ed.Bar 1970) § 4.69, p. 250.)

The record before us demonstrates that plaintiff made diligent efforts to retain his staff membership with the defendant hospital in the period after he was wrongfully terminated therefrom. These efforts were frustrated by defendants’ conduct, resulting finally in plaintiff’s filing of the herein action. We find no evidence to support the defense of laches. Issuance of the preliminary injunction was thus not barred by laches or plaintiff’s failure to exhaust administrative remedies. We conclude that the trial court did not abuse its discretion in granting the injunction.

The order granting the preliminary injunction is affirmed.

Newman (J. M.), J.,* concurred.

Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

1 Written findings were not made and were not required to be made before entry of the preliminary injunction. (People v. Mobile Magic Sales, Inc. (1979) 96 Cal.App.3d 1, 12, fn. 4 [157 Cal.Rptr. 749].) Thus, our search is not for findings but rather for substantial evidence to support the exercise of the trial court’s discretion. (Ibid.)

2 Defendants claim that plaintiff first raised the issue of the burn center by reply memorandum a few days prior to the preliminary injunction hearing and did not present evidence that he, as an internist, would treat burn patients. Oral argument at the hearing was directed to whether he would treat burns, in effect conceding that defendant hospital was a burn center. In their brief in this court, defendants do not dispute the fact that defendant hospital was a burn center. The trial court apparently inferred that an internist might treat a burn patient. On appeal, we view the facts most favorable to plaintiff and indulge in all inferences in support of the trial court’s order.

3 It appears undisputed that, under the bylaws, the executive committee recommends, and the governing board acts on the recommendation.

4 The letter also stated, erroneously, that the bylaws provided that, upon termination, no new application for membership could be entertained for two years.

5 The doctrine has been referred to in various terms, such as “relative hardship,” “balancing conveniences,” “balance of hardship.” (See 7 Witkin, Summary of Cal. Law (8th ed. 1974) Equity, § 109, p. 5328.)

6 It has been said that to bar the right to an injunction, the acquiescence must be such as proves plaintiff’s assent to defendants’ acts, and to the injuries that have flowed or can reasonably be anticipated to flow from those acts. (38 Cal.Jur.3d, Injunction, § 33, pp. 511-512.)

Assigned by the Chairperson of the Judicial Council.