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Duby v. American College of Surgeons

decided: October 11, 1972.


Swygert, Chief Judge, Pell and Hamley,*fn* Circuit Judges.

Author: Pell

PELL, Circuit Judge.

Plaintiff Hyman Duby, a Doctor of Medicine in his early sixties who specializes in surgery but does not have Board certification in surgery, here seeks review of the decision of the defendant American College of Surgeons to expel him. The district court, after a combined hearing on the defendant's motion for summary judgment and trial on the merits, granted summary judgment for the College. On this appeal, Dr. Duby is seeking alternatively to have the judgment reversed and the case remanded for a more thorough hearing into the merits or to secure the issuance of a permanent injunction against the College's efforts to expel him.

There is substantial accord between the parties as to the relevant facts. In 1940 Dr. Duby, a resident of Massachusetts, became a Fellow in the College. He remained a member in good standing until 1971 when, as a result of an inquiry into certain surgical and patient care procedures employed by him, the College reached a decision to expel him. At the time the investigation which led to this decision began, Dr. Duby was affiliated with four Massachusetts hospitals. He had never before been investigated or disciplined for his professional conduct.

The College, an Illinois not-for-profit corporation, is a voluntary professional organization of surgeons with approximately 30,000 members in the United States and Canada. The express purpose of the College is to "establish and maintain an association of surgeons . . . for the benefit of humanity by advancing the science of surgery and the ethical and competent practice of its art." Membership in either the College or its companion association, the American Board of Surgery, Inc., is frequently required by accredited hospitals. Expulsion from the College, therefore, carries with it substantial impairment of the expelled member's ability to pursue his profession.

Early in March 1969, as a result of questions by the medical staff of Jordan Hospital in Plymouth, Massachusetts, concerning Dr. Duby's treatment of patients, the hospital's Executive Committee temporarily suspended plaintiff's surgical privileges and initiated a review of some of his procedures. Following the determination that plaintiff's care of patients was inadequate, the hospital's Credentials and Executive Committees entered into a voluntary agreement with Dr. Duby by which his practice was limited to general surgery. That agreement contained the additional requirement that a Board-certified surgeon assist the plaintiff in all major operations and post-operative care.

On April 28, 1970, the medical staff of Jordan Hospital voted to allow the plaintiff to continue a restricted practice of surgery at the hospital but requested an investigation into his conduct by the College. In response to this request, the College sent a committee of three Fellows to the hospital to conduct the formal inquiry. On August 19, 1970, the committee met with the hospital's Credentials Committee, the president of its medical staff, the hospital administrator and the plaintiff. As a result of that meeting and the investigation which followed, the committee issued a report to the hospital in which it found that the hospital's curtailment of Dr. Duby's surgical practice was justified under the circumstances. In addition, with some reservation as to its authority to do so, the committee recommended that Dr. Duby be censured by the Regents of the College for having failed to live up to his agreement with the Credentials and Executive Committees. No recommendation of other disciplinary action by the College was made.

Subsequent to its receipt and review of the committee's report, the College decided to initiate on its own behalf a formal examination of Dr. Duby's professional conduct. Pursuant to the bylaws of the College, the matter was referred to the College's Central Judiciary Committee for "consideration of disciplinary action." Written notice of the impending disciplinary proceedings was sent to Dr. Duby on October 29, 1970. That notice informed the plaintiff that, inter alia, he was the subject of a disciplinary investigation into his handling of five surgical cases which were identified by the name of the patient, the hospital number and the surgical procedure performed.*fn1 The notice further informed Duby of the date and location of the hearing and invited him to be present "in person or by [his] representative" and to submit any evidence he deemed necessary to his defense.

Dr. Duby appeared in person at the hearing but without legal counsel. He voluntarily discussed with the members of the Central Judiciary Committee each of the cases enumerated in the notice and apparently had no objection to extending the inquiry into at least two other cases not specified in the notice. During the discussion, Dr. Duby admitted having engaged in surgical procedures that did not comport with accepted standard practices.*fn2 At no time during the hearing did he request legal counsel or ask for a continuance for the purpose of obtaining such counsel. Further, he did not object to the manner in which the hearing was being conducted. Indeed, it is clear that the Central Judiciary Committee permitted Dr. Duby to offer any explanation of his professional procedures that he desired. There is no indication that the Committee would have precluded his offering any other evidence pertaining to the matter if he had so chosen.

At the conclusion of the hearing, the Central Judiciary Committee voted to recommend to the Board of Regents of the College that Dr. Duby be offered the choice either of resigning his fellowship or facing formal expulsion by the College.

On December 28, 1970, plaintiff was informed of this recommendation by a letter which also notified him that he had the right to appear before the Board of Regents "in person or by [his] representative" on February 6, 1971, to state his objections to the recommendation of the Central Judiciary Committee. Plaintiff appeared before the Board, this time accompanied by legal counsel, but declined an invitation to make a statement or to introduce evidence in his defense. Again, neither plaintiff nor his counsel objected to the procedures used in conducting the investigation and hearings. Rather, it appears that plaintiff consciously chose, as a matter of strategy, to ignore any possible objection to the procedures and to appeal to the Board for a less severe sanction than expulsion from the College.

Rejecting plaintiff's plea for clemency, the Board voted to adopt the recommendation of the Central Judiciary Committee. Plaintiff was notified on February 12, 1971, that he could either resign his fellowship or face formal expulsion. This written notice detailed the grounds for the Board's decision by referring to the plaintiff's handling of the five cases named in the October 29th notice and, as an independent alternative ground, to his failure to arrange for adequate coverage for seriously ill patients during his absence.

Faced with that unhappy choice, Dr. Duby sought immediate injunctive relief from the district court. There, the district judge, applying Illinois law under diversity jurisdiction, denied plaintiff's motion and granted the defendant College's motion for summary judgment. The court held that it had no power to interfere with the expulsion of a member of a private, voluntary association where such expulsion complied with the procedures established by the association's bylaws and articles of incorporation.

Dr. Duby argues that the district court erred in construing Illinois law to limit judicial inquiry to the question of whether a particular expulsion was accomplished pursuant to the organization's bylaws and articles. It is appellant's position that "rudimentary due process" principles govern expulsion from private associations where, as here, expulsion ...

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