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DUNBAR v. HOSPITAL AUTHORITY OF GWINNETT COUNTY et al.
26411.
Equitable petition. Gwinnett Superior Court. Before Judge Pittard.
UNDERCOFLER, Justice.
1. (a) A Hospital Authority may restrict a staff member's privileges by reasonable and non-discriminatory rules and regulations.
(b) The rules and regulations adopted by the Hospital Authority and involved here are reasonable and non-discriminatory.
2. Qualifications for membership in the local medical society were not in issue in this case and the trial court erred in finding that Dr. Dunbar was not qualified for membership therein.
Dr. William G. Dunbar filed an application with the Hospital Authority of Gwinnett County for appointment to the medical staff. Temporary medical staff privileges, including the performance of minor surgery, were granted to him on July 8, 1969. These privileges are granted as a general courtesy to all qualified applicants. On August 5, 1969, at a meeting of the Gwinnett County Medical Staff, his application for appointment to the medical staff was considered. The credentials committee's report recommended that the application of Dr. Dunbar be deferred for a period of 70 days in order that further evaluation could be made. This recommendation was accepted by the staff. The temporary privileges which had been granted Dr. Dunbar pending action on his application were discussed also. The staff directed the chief of staff and the hospital director to terminate the temporary privileges previously granted Dr. Dunbar but allowed him to attend any patients hospitalized prior to that date. The applications of four other doctors for staff privileges were approved at this meeting.
On September 11, 1969, the credentials committee made its report to the regular meeting of the medical staff showing: "1. That Dr. Dunbar's application contained significant misstatements and omissions as follows: (a) Responsive to the question 'Has your license to practice medicine in any jurisdiction ever been suspended or revoked? If so, give full details.' Dr. Dunbar states as follows: 'Yes-Violation Narcotic Act 1956--Reissued 1964.' Said response is false and incomplete in the following respects: In the case of United States of America vs. Dr. W. G. Dunbar, Criminal Indictment No. 22,732, United States District Court, Northern District of Georgia, Atlanta Division, Dr. Dunbar was, on the 23rd day of March, 1961, convicted upon his plea of guilty to the offense of conspiring to violate the Narcotic Laws of the United States--in violation of Sections 4205 (a), 7237 and 4705--Title 26, U.S.C.A., as charged in counts one, four and five of the indictment, whereupon Dr. Dunbar was committed to the custody of the Attorney General of the United States for imprisonment for a period of five years on count one, five years on count four and five years on count five of the indictment, all sentences to run concurrently. In his application Dr. Dunbar states that the date of his violation was 1956 and he did not give any details whatsoever concerning these violations when the application clearly calls for full details. Furthermore, he did not give the date that his license to practice medicine was suspended or revoked. (b) Dr. Dunbar completely ignored and omitted information called for on the application under the heading 'Membership on other hospital staffs (past and present).' This is a significant omission which impedes a proper investigation and evaluation of the applicant's history and character. (c) Responsive to the question 'Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed? If so, explain in full detail.' Dr. Dunbar stated as follows: 'No.' Said response was false in that Dr. Dunbar's associate privileges at Griffin-Spalding County Hospital, Griffin, Georgia were terminated August 11, 1960. With regard to the above, the Credentials Committee notes that in his application for appointment to the Medical Staff Dr. Dunbar's signature is immediately preceded by the following language, to wit: 'I fully understand that any significant misstatements or omissions from this application constitute cause for summary dismissal from the staff.'
"(2) The Committee finds that following a grant of temporary privileges to Dr. Dunbar by the Director of the hospitals, and while Dr. Dunbar was under the supervision of Dr. George Tootle, President of the Medical Staff, Dr. Dunbar did on two occasions violate the instructions and restrictions given to him by Dr. Tootle pending action on his application, such violations being as follows: Dr. Dunbar was specifically instructed by Dr. Tootle that during the period in which his application was being considered and during the exercise of temporary privileges, he, Dr. Dunbar, would not perform any major surgery. Dr. Dunbar ignored and violated the instructions and restrictions accompanying the grant of temporary privileges by scheduling major surgery on a patient at Joan Glancy Hospital and then proceeded to call Dr. Tootle and ask permission to perform such surgery, thereby placing the Chief of Staff in an embarrassing and difficult position without any need or necessity therefor. On another occasion following the one above mentioned and after again being advised not to schedule major surgery, Dr. Dunhar again scheduled major surgery at Button Gwinnett Hospital and again called Dr. Tootle requesting permission to perform such surgery, at which time Dr. Tootle forbade Dr. Dunbar to perform the operation.
"(3) The Committee finds that Dr. Dunbar has made statements with regard to his professional skill and abilities to or in the presence of members of the Nursing Staff which are questionable or in at least one instance unbelievable. His exact statements or the substance thereof being as follows: (a) Dr. Dunbar instructed a nurse not to send any serious injuries to Atlanta hospitals for treatment but instead to call Dr. Dunbar because, 'He could do anything and could do gunshot wounds blindfolded.' (b) On another occasion Dr. Dunbar stated to a nurse that he had just returned from an out-of-town trip in which he had flown in a helicopter to remove a liver from a patient, leaving the nurse with the definite impression that the patient had lived. Such a statement is unbelievable.
"(4) The Committee finds that Dr. W. G. Dunbar has, in addition to the misstatements contained in his application, made one misrepresentation with regard to his professional services in the hospital, to wit: Dr. Dunbar advised Dr. Tootle that he wished to do more emergency room coverage than he was scheduled to do; whereupon Dr. Tootle advised Dr. Dunbar that he, Dr. Dunbar, might cover the emergency room for Dr. Tootle or other physicians provided that he would first call Dr. Tootle or such other physician on each occasion and advise the physician that he, Dr. Dunbar, was available and would cover the physician's schedule for the emergency room on that particular occasion. Subsequently, Dr. Dunbar advised an employee of the Hospital Authority to put him (Dr. Dunbar) down to call all of Dr. Tootle's emergency room coverage.
"(5) The Committee finds that the hospitals could not operate efficiently and properly with Dr. Dunbar on the Medical Staff for the following reasons: Dr. Dunbar's attitude and communications toward and with members of the Nursing Staff create friction, and emotional reactions, and are a disruptive influence making it difficult for some members of the Nursing Staff to properly perform their duties. It is apparent that the strain caused by Dr. Dunbar's presence would interfere with the orderly and efficient operation of the hospitals and create trouble and friction between employees and members of the Medical Staff at all professional levels. These conclusions are based upon statements attributed to Dr. Dunbar, which he is reported to have made continuously, that he is going to change everything in the hospitals, that everything would be different, and making general derogatory statements with respect to other professional people.
"(6) The Committee finds that Dr. Dunbar deliberately and wilfully refused to comply with a reasonable and routine request from Mrs. Charlotte Fuller, Director of Nurses and Supervisor of Surgery at Joan Glancy Hospital, Duluth, Georgia, that he please post the time when he would do surgery and responded that he had no intention of posting his time of surgery.
"(7) The Committee finds that Dr. Dunbar was convicted for conspiring and violating the Narcotic Laws of the United States as set forth hereinabove. This conviction was in the Atlanta Division and the charges were based upon criminal acts occurring in Atlanta and Hampton, Georgia, both of which are in close proximity to the hospitals in which Dr. Dunbar seeks staff privileges. The charges against Dr. Dunbar involved others who were charged along with him in violating the Narcotic Laws. One of the associates was a convicted felon and it is felt that Dr. Dunbar is improperly and unwisely seeking to establish himself in the geographic area of his past criminal conduct and association with criminal elements."
The Gwinnett County Medical Staff rejected the application of Dr. Dunbar for staff privileges. A hearing was scheduled before the Hospital Authority, the Joint Conference Committee and the Credentials Committee of the Medical Staff prior to the final action being taken thereon by the Hospital Authority in order to afford Dr. Dunbar due process. After hearing evidence, the hospital denied Dr. Dunbar hospital privileges.
Dr. Dunbar filed a complaint in the Superior Court of Gwinnett County seeking to compel the Hospital Authority of Gwinnett County to grant him the right to practice medicine and surgery in the hospitals under its control, authority and operation. He also named as defendants the individual members and director of the Authority and sought to enjoin them from interfering with or refusing to grant to him medical staff privileges. He alleged that he was a duly licensed doctor qualified to engage in the practice of medicine and surgery; that he had been granted temporary staff privileges which had been withdrawn; that his administrative remedies had been exhausted; that the defendants, after a hearing, refused to grant him staff privileges although he meets the requirements of the bylaws of the medical staff which, he alleges, are the sole and controlling criterion for admission to the medical staff of the hospitals; and that he has been wrongfully denied medical staff privileges and seeks to compel the defendants to grant him staff privileges and to enjoin and restrain them from interfering with or refusing to grant him medical staff privileges. The only hospitals in the county are controlled by the Authority. The defendants' answer denied the material averments of the complaint and set forth the affirmative defenses that the complainant (1) failed to comply with the requirements of the bylaws of the Hospital Authority requiring full disclosure of any unfavorable history with regard to licensure and hospital privileges, (2) that the denial was based upon evidence and information adduced upon an administrative hearing, (3) that it was determined after an administrative hearing that the appointment of the complainant to the medical staff would not be in the best interest of the hospitals governed by the defendants or their patients, and (4) that the appointment of the complainant would be inconsistent with the objects and purposes of the Authority.
The bylaws of the Hospital Authority of Gwinnett County provide in Article VIII, Section 1 (a): "The Hospital Authority shall organize the physicians granted practice privileges in the hospital into a medical staff under medical staff bylaws approved by the Hospital Authority. The Hospital Authority shall consider recommendations of the medical staff and appoint to the medical staff, in numbers not exceeding the hospital's needs, physicians who meet the qualifications for membership as set forth in the bylaws of the medical staff. Each member of the medical staff shall have appropriate authority and responsibility for the care of his patients, subject to such limitations as are contained in these bylaws and in the bylaws, rules and regulations for the medical staff and subject, further, to any limitations attached to his appointment. (b) All applications for appointment to the medical staff shall be in writing and addressed to the administrator of the hospital. They shall contain full information concerning the applicant's education, licensure, practice, previous hospital experience, and any unfavorable history with regard to licensure and hospital privileges." These bylaws also provide that proposed bylaws, rules and regulations may be recommended by the medical staff, but only those adopted by the Hospital Authority shall become effective.
The bylaws of the Gwinnett County Medical Staff which were adopted by the governing authority of the hospital provide in Article III, Section 4, Subsection 1: "Application for membership on the medical staff shall be presented in writing, and shall state the qualifications and references of the applicant and shall also signify his agreement to abide by the bylaws, rules and regulations of the medical staff . . ." Subsection 3 thereof provides: "The credentials committee shall investigate the character, qualifications and standing of the applicant and shall submit a report of findings to the medical staff as soon as possible, and in all cases within three months, recommending that the application be accepted, deferred or rejected . . ."
Article III, Section 6, Subsection 2 of the bylaws of the Gwinnett County Medical Staff provides: "The administrator of the hospital, after conference with the President of the Staff, shall have authority to grant temporary privileges to a physician who is not a member of the medical staff. The President of the Staff shall give an authoritative opinion as to the competence and ethical standing of the physician who desires such temporary privileges and in the exercise of such privileges he shall be under direct supervision of the President of the Staff."
At the hearing in the superior court the parties agreed and stipulated that they would waive a jury trial, that the court would rule on all issues of law and fact based upon the evidence introduced at such hearing, and that the hearing would be a final one. After hearing the evidence, the trial court found that Dr. Dunbar was not qualified for membership in the Gwinnett County Medical Society, denied the relief sought by him and dismissed the petition. The appeal is from this judgment.
The appellant contends that he is qualified as a medical doctor and as a surgeon and is legally licensed to practice in the State of Georgia. He contends that the basis of the denial of staff membership and the withdrawal of the temporary privileges was his personal conduct and a conclusion that the grant of staff privileges to him would disrupt the operation of the hospitals. He further contends that he has a right to engage in the practice of medicine; that there is no basis for the denial of staff privileges to him; and that he is being deprived of a valuable property right.
1. In Yeargin v. Hamilton Memorial Hospital, 225 Ga. 661 (171 SE2d 136) cert. denied 397 U. S. 693, this court held that a physician did not have absolute authority to practice medicine in the hospitals of this State but that a Hospital Authority could restrict a staff member's privileges by reasonable and non-discriminatory rules and regulations.
In 40 AmJur2d 857, 10 it is stated: "With respect to the right of an individual physician to practice in hospitals, a distinction must be made depending on whether hospital privileges are sought in a public hospital or in a private hospital. Insofar as public hospitals are concerned, even though a physician or surgeon who is duly licensed under general laws has no constitutional or statutory right, or right per se, but merely a privilege to practice his profession in a public hospital, he is entitled to practice in the public hospitals of the state so long as he stays within the law and conforms to all reasonable rules and regulations of the institutions adopted for the government thereof, and he cannot be deprived of that privilege by rules, regulations or acts of the hospital's governing authorities that are unreasonable, arbitrary, capricious or discriminatory." See 24 ALR2d 850 for cases involving the application of these rules.
The Hospital Authority of Gwinnett County was authorized to find that Dr. Dunbar had not complied with its rules and regulations and was authorized to refuse him medical staff privileges. The trial court was authorized to find that the rules and regulations of the Hospital Authority which were applied to the application of Dr. Dunbar were reasonable and non-discriminatory and that the evidence introduced at the hearing before it was sufficient to deny the relief sought.
2. Qualifications for membership in the local medical society were not in issue in this case and the trial court erred in finding that Dr. Dunbar was not qualified for membership therein. Direction is given that this portion of the judgment be stricken.
Judgment affirmed with direction. All the Justices concur, except Hawes, J., who dissents.
Webb, Fowler & Tanner, W. Howard Fowler, for appellees.
G. Hughel Harrison, James W. Garner, for appellant.
ARGUED MARCH 8, 1971 -- DECIDED APRIL 8, 1971 -- REHEARING DENIED MAY 6, 1971.
Friday May 22 15:45 EDT


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