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Virgin v. American College of Surgeons

MAY 29, 1963.




Appeal from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding. Judgment reversed and cause remanded with directions.


This is an appeal from a judgment in actions at law and in chancery brought by plaintiff, Dr. Herbert W. Virgin, Jr., against the American College of Surgeons, a corporation, and against individual defendants, Paul Hawley, Director and Michael L. Mason, Secretary, of said corporation. The action at law was for the issuance of a writ of mandamus commanding all defendants to reinstate plaintiff as a Fellow of the American College of Surgeons and to expunge from its records all matters relating to the expulsion of plaintiff.

The Court found the issues against the plaintiff and in favor of all defendants, denying plaintiff's petition for writ of mandamus and dismissing plaintiff's application for declaratory judgment.

Plaintiff at the time of the trial was 53 years of age. He is married, has three children, two boys and one girl, then 23, 21 and 18 years of age. He is a graduate of Northwestern University Medical School and is a member of the Dade County Medical Society, Florida Medical Association, the American Medical Association, the Southern Medical Association and a Fellow of the Southeastern Surgical Congress, the American Academy of Orthopedic Surgeons, the International College of Surgeons and the defendant College.

He has been an orthopedic surgeon for 24 years, has practiced orthopedic surgery in Florida since 1940, and in Miami since 1943. Prior thereto he practiced in Wisconsin and was licensed there and in Illinois. He is frequently called upon to testify in court because of the nature of his practice. Over the five years preceding trial of this case, his testimony has been about 55-60% for the defense. He was recognized by the President of the Greater Miami Chapter of the College as "probably the best technical orthopedic surgeon in Miami."

Dr. Virgin applied for Fellowship in the defendant College in 1940. After a thorough investigation into his professional qualifications and moral and ethical standing, he was admitted to the College as a Fellow in 1947.

Defendant, the American College of Surgeons, is incorporated as a corporation not-for-profit under laws of Illinois. Its principal place of business is in Chicago, Illinois, where it owns property of substantial value. Defendant, Paul Hawley, is the Director and defendant Michael L. Mason, is the Secretary of the American College of Surgeons.

The objects of the American College of Surgeons, as stated in its articles of incorporation, are:

"The purpose or purposes for which the corporation is organized is to establish and maintain an association of surgeons, not for pecuniary profit but for the benefit of humanity by advancing the science of surgery and the ethical and competent practice of its art; by establishing standards of hospital construction, administration and equipment, and all else that pertains to them; by engaging in scientific research to determine the cause, nature and cure of disease; by aiding in better instruction of doctors; by formulating standards of medicine; and methods for the improvement of all adverse conditions surrounding the ill and injured wherever found. To accomplish these benevolent and charitable aims, it shall be within the purposes of this corporation to use those means which from time to time may seem to it wise, including research, education, the establishment and maintenance of libraries, museums, and other agencies or institutions appropriate hereto, and the cooperation of any other such activities, agencies or institutions already established or which may hereafter be established."

The authority for governing the American College of Surgeons is vested solely in the Board of Regents of the College. Dr. I.S. Ravdin was the Chairman of the Board of Regents and Dr. Loyal Davis was Vice-Chairman. Dr. Paul Hawley, Director of the College, is the chief executive officer of the College and in general charge, under the bylaws, of all matters of administration of the College under the direction of the Board of Regents. He is head of the College's full time staff but not a member of the Board of Regents. Prior to becoming Director he was chief executive officer of the National Blue Shield and Blue Cross insurance corporations for two years. Prior to that he was Chief Medical Director for the Veterans' Administration for 26 months. He served for 30 years in the regular Army during which he had been involved in 8 or 10 courts martial in the capacities of witness, part of the court and defense counsel. He has been a physician for 45 years but is not a surgeon, the extent of his medical practice being "largely epidemiology and tropical medicines."

Dr. George Stephenson is an Assistant Director of the College and all "judiciary problems" come within his department. Dr. Robert Myers is also an Assistant Director for the College. Among other things, he conducts investigations on behalf of the College.

The initial contact in getting the College to investigate Dr. Virgin was made in late 1954 when Dr. Arthur Weiland discussed the Virgin "situation" with Dr. Stephenson at a State Credentials Committee meeting in Jacksonville, Florida.

The personal antagonism or feud between Weiland and Virgin for many years was known. Weiland and Virgin often testified on opposite sides of personal injury suits, Virgin for plaintiff and Weiland for defendant.

After the American Board of Orthopedic Surgery refused to institute disciplinary proceedings, Dr. Spurling wrote "General Hawley" on February 8, 1955 about the professional and ethical qualifications of Dr. Virgin. He enclosed his correspondence with the American Board of Orthopedic Surgery and a letter to Spurling from Dr. Weiland, stating that Weiland would be "most certainly more than willing to go ahead" with Spurling on the Virgin matter; he had many of his "attorney friends" gather copies of testimony in which he was marking pertinent passages; that the "best way to get this thing going" would be for Spurling, himself, to write the Director of the College and suggest that the Dade County Chapter of the College be asked for a report on Dr. Virgin's activities. Dr. Weiland said "I can assure you that if this is done, we will carry our end forward. In the event you do not feel that this is the right way, please let me know and we will go along on it together just as we planned when you (Spurling) were down here."

On March 18, 1955, Dr. Weiland replied to Myers' letter of February 11, 1955, that he did not feel it was necessary to prefer "definite charges" against Dr. Virgin but he did have numerous pertinent exhibits which were "prepared and ready along with Dr. Spurling's data" and they would be prepared to exhibit them "at any time you care to call the investigation."

When the Virgin investigation began in February, 1955, Section 4, Article IX of the College Bylaws provided that, in questions of fitness of a Fellow, the Director might ask that "an investigation be made by the Judiciary Committee or other Committee . . . in the Fellow's State, province or other area." Section 5, Article V of the Bylaws provided for the establishment of Judiciary Committees which were subject to the control of and reported to the Board of Regents. A Judiciary Committee for the Florida area was in existence during the Virgin investigation.

Myers did not begin his actual investigation until after June 4, 1955 when Section 4, Article IX was amended allowing the Director to request investigation by an "individual," in addition to allowing the Director to ask for investigation by a "Judiciary Committee or other Committee," and eliminating the requirement for investigation within the Fellow's own state. There was no provision in the College Bylaws for the "individual" investigator to report directly to the Board of Regents. Dr. Myers testified that he did not know if the Virgin investigation had anything to do with the amendment of Section 4, Article IX but he did not start his investigation until after it was amended.

On June 15 and 16, 1955, Meyers arranged with Weiland by telephone call and confirming letter that he would stop to see Spurling on June 5 and start in Miami on July 6, leaving his return date open, "as I plan to spend as much time as necessary to accomplish the investigation." On June 17, Weiland wrote Hawley, requesting that, "for the protection of us all," a representative of the Dade County Chapter be present as an observer at the conference with Myers on July 6.

After Weiland and Myers made the arrangement for the meeting in Weiland's office, Myers wrote Dr. Virgin on June 23, 1955, requesting an interview on July 7, or 8 to "develop information about certain aspects of your surgical practice."

On July 6, 1955, Myers participated in a meeting in Weiland's office which lasted from 9:30 a.m. or 9:45 a.m. to 3:00 p.m. or 3:30 p.m. All or nearly all of the doctors taking part in this conference were friends of Dr. Weiland when the meeting was to investigate Dr. Virgin. It did not occur to Myers that Virgin ought to be there to hear the accusations against him. Myers did not inquire as to whether the doctors present testified frequently for defendants.

Myers saw Virgin for the first time on July 8, 1955. During the interview on July 8, Myers interrogated Virgin, as to various matters of his practice over a ten-year period. Myers testified that the following cases were discussed: the Wesley Midget case, the Karl King case, Manheim v. Pierce, the Goff case, the Rose Collins case, and the Jerry Cantor case. He testified that they did not discuss Kenney v. Temple and he could not recall if they discussed the Maule Industries letter.

Myers told Virgin that there had not been any complaints filed and did not disclose the source of his information. Myers did not ask for any information after the July 8 interview. After Myers left, Virgin wrote names of patients mentioned ...

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