Appeal from the United States District Court for the Western District of Wisconsin. No. 70-C-124 JAMES E. DOYLE, Judge.
Hastings, Senior Circuit Judge, Cummings, Circuit Judge, and Noland, District Judge.*fn*
The complaint herein was brought under the Civil Rights Act (42 U.S.C. §§ 1983 and 1985) by a neurological surgeon seeking reinstatement to the staff of Madison General Hospital in Madison, Wisconsin.
After being certified by the American Board of Neurological Surgeons in 1948, plaintiff limited his practice to the field of neurological surgery. He was a member of the medical staff of St. Mary's Hospital and Methodist Hospital in Madison but attended and treated most of his surgical and clinical patients at Madison General, where he served as Chief of Staff for three years.
According to the complaint, in 1967 the defendant hospital appointed a Bed Utilization Committee of the medical staff to investigate the cause of a shortage of beds in the hospital. During that year, plaintiff's patients utilized more hospital beds than those of any other doctor. After various internal investigations, the Executive and Credentials Committee of the medical staff at the defendant hospital made the following recommendation to the hospital's Board of Directors on January 6, 1969:
"The Executive and Credentials Committee recommended that Dr. Henry M. Suckle be asked to resign voluntarily from the medical staff of Madison General Hospital, and that any reapplication not be considered until after three years. The Committee suggests that one of these years be spent in post-graduate neurosurgical training in an accredited program.
"If this recommendation is not accepted by Dr. Suckle, the Committee recommends to the Board of Directors at their January 22, 1969 meeting that Dr. Suckle not be reappointed to the medical staff at Madison General Hospital."
At its January 22, 1969, meeting, defendant's Board of Directors decided not to renew plaintiff's appointment, precipitating this lawsuit.
The gravamen of the complaint is that the hospital employed improper procedures in dropping plaintiff from its staff, thus depriving him of due process of law in violation of the Fourteenth Amendment. The hospital's acts were stated to be committed under the color of state law, and this was later conceded by defendant (362 F. Supp. at 1199).
After a trial on the merits, the district court issued an exhaustive opinion concluding with an order dismissing the action on its merits. 362 F. Supp. 1196. The district court observed that on January 7, 1969, defendant's chief of staff proffered plaintiff an opportunity to appear before the entire active medical staff. Without explanation, plaintiff declined to do so. The court concluded that he was barred from judicial relief because he declined the hearing before the active medical staff without inquiring whether its proceedings were to be based on a specific detailed set of charges related to particular cases or requesting that they be so based. The court concluded that although proceedings up to January 7 did not comply with due process requirements, the plaintiff probably would have received constitutionally adequate treatment by the staff if this inquiry had been answered affirmatively. 362 F. Supp. at 1222. For somewhat different reasons, we affirm.
Under defendant's bylaws, to protect the public interest, appointments to its staff were to be made by the Board of Directors of the hospital for a period of only one year. Although the district court found that a member of the medical staff could realistically expect to continue as a member for an indefinite period of time in the absence of cause for nonrenewal, and that procedural protections were guaranteed by hospital bylaws (362 F. Supp. at 1199), the opinion below and plaintiff's briefs point to nothing in state law suggesting that his expectancy was a claim of entitlement amounting to a property interest for due process purposes under Perry v. Sindermann, 408 U.S. 593, 599, 33 L. Ed. 2d 570, 92 S. Ct. 2694. Procedural protections or the lack thereof do not determine whether a property right exists. Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15, 42 LW 4513, 4523; Adams v. Walker, 492 F.2d 1003, 1006 (7th Cir. 1974); Jeffries v. Turkey Run Cons. School District, 492 F.2d 1, 3 (7th Cir. 1974). Rather, plaintiff must show a substantive restriction on the hospital's discretion, namely, that reappointment may be denied only for certain reasons under state law. Procedural protections may be persuasive, for they suggest that there are factual issues which matter. But if it is proper under state law for the hospital to deny reappointment regardless of what is shown at a hearing, then no property right exists.
Similarly, under Shirck v. Thomas, 486 F.2d 691 (7th Cir. 1973) and Adams v. Walker, supra at 1007 et seq., the defendant's statements that the plaintiff did not do his job well do not deprive him of a liberty interest which would activate the due process clause. We are unwilling to make an exception to the rule of those cases merely because plaintiff is a surgeon.
Therefore, affirmance might well be warranted on the ground that plaintiff had no interest to which due process protection attached. But we do not rest our decision on this ground because it does not appear that the issue was seriously contested below. Although it seems clear that no liberty rights were taken, plaintiff might ...