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Fahey v. Holy Family Hospital

SEPTEMBER 16, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.


Rehearing denied October 14, 1975.

This is an interlocutory appeal, the outgrowth of a controversy between a surgeon and a private hospital concerning application of a rule which would require him to consult a qualified member of the hospital's obstetrics and gynecology department before he performs any major gynecological surgery in the hospital. The surgeon filed a complaint by which he sought to restrain enforcement of the rule. After the hospital filed its answer, the surgeon made a motion for temporary injunctive relief which the trial court denied. The issue before us is whether the trial court erred in denying the motion for a temporary injunction. *fn1


Martin M. Fahey is a physician and surgeon who was licensed to practice medicine in Minnesota in 1944 and in Illinois in 1948. He received his undergraduate education at the University of West Virginia and studied medicine there for two years before transferring to Rush Medical School of the University of Chicago from which he was graduated in December 1941. He served an internship of one year in Chicago; and then, from January 1, 1943, until October 1, 1949, with a two-year absence for military service, he was a Fellow in surgery at the Mayo Foundation in Rochester, Minnesota. During his military service, he was in the Medical Corps of the United States Army and performed general surgery in army hospitals to which he was assigned. His training at Mayo was in general surgery, neurological procedures and operative gynecology. In 1949, he became a member of the medical staff of St. Francis Hospital in Evanston, Illinois. Two years later, he earned the recognition of a specialist in general surgery, having received the certificate of a surgeon from the American Board of Surgery.

On March 10, 1961, Dr. Fahey was appointed to the medical staff of Holy Family Hospital with privileges in the Department of General Surgery. The hospital is in Des Plaines, Illinois. It is a not-for-profit corporation organized under State law and operated by the Sisters of the Holy Family of Nazareth, an order of Catholic Church nuns. Under its bylaws, the hospital is controlled by a Governing Board; and for administrative purposes, its medical services are divided into departments, one being the Department of Obstetrics and Gynecology. *fn2 The hospital's physicians and dentists are organized into a medical and dental staff and are granted practice privileges by the Board. Under its bylaws, and those of the staff it approves, the Governing Board has final responsibility on all matters affecting staff privileges in the hospital. Every staff member is entitled to appropriate authority and responsibility for the care of his or her patients, subject to limitations contained in staff and Board bylaws, those contained in a staff rule or regulation, or to those expressed in restrictions attached to an appointment. The bylaws of the medical and dental staff provide that "[i]n any case where the Credentials Committee does not recommend for reappointment or the Executive Committee does not recommend reappointment, or where reduction of privileges is recommended, the Administrator shall notify the physician or dentist concerned and he shall be given an opportunity of appearing before the Credentials Committee and Joint Conference Committee in joint session. After a hearing as outlined above, the Joint Conference Committee shall make final recommendation to the Governing Board."

On August 10 of the year he became a staff member at Holy Family, Dr. Fahey requested that the hospital grant him full privileges under which he could perform gynecological surgeries. His request was supported by a document that listed 271 major surgical gynecological procedures he had performed in three Chicago area hospitals. The Board granted his request with the limitation that his privileges not include consultation in operative gynecology. This was done although Dr. Fahey was not a member of the hospital's obstetrics and gynecology department; in fact, he was the only surgeon on the hospital general staff who had privileges that allowed him to perform major gynecological operations. He continued to enjoy these privileges, undisturbed, from October 6, 1961, when they were granted him, until early in March 1970.

At its meeting on March 10, 1970, the Governing Board approved a recommendation and adopted a rule for its obstetrics and gynecology department which required any physician not a member of that department to request a consultation with one of its qualified members before any major gynecological operation was performed in the hospital. When Dr. Fahey was informed of this fact, he declared that the rule reduced his privileges because he had always performed major gynecological operations without consulting any other physician in the hospital. Therefore, invoking the bylaws of the medical and dental staff, he took an appeal and demanded a hearing. One was given him; and at its conclusion, the committee authorized to hear him recommended to the Governing Board that Dr. Fahey be exempted from the rule. The Board approved this recommendation and so notified Dr. Fahey on April 16, 1970. This exemption was the only one authorized by the Board.

Dr. Fahey's status with regard to this matter continued until July 21, 1972, when he received a letter from Sister Mary Amata Sweeney, the hospital administrator, telling him that the Governing Board had decided to enforce, uniformly and without exemption, all rules of the obstetrics and gynecology department. This included the requirement that non-gynecologists request a consultation with a qualified member of the Department of Obstetrics and Gynecology before performing any major gynecological operation in the hospital. The consultation was to be without charge to the patient.

Dr. Fahey immediately responded to Sister Amata's letter, protesting the Board's decision and contending that it was a reduction of his privileges, one imposed on him without a hearing, in violation of medical and dental staff bylaws. He demanded a hearing. Sister Amata, however, refused to authorize one because in her view, and that of the Governing Board, application of the rule to him was not a reduction of Dr. Fahey's privileges; it was only a uniform enforcement of a rule throughout the hospital medical staff. Dr. Fahey, nonetheless, argued that the Board was not uniformly applying a rule because he was the only surgeon affected; he was the only member of the medical staff who had been exempted from the consultation requirement. Despite his insistence, a hearing was not given Dr. Fahey; so, he filed the suit in this case and then made his motion for a temporary injunction.

At its hearing, the testimonial evidence came from five witnesses, four in support and one against the motion. The physical evidence came in 11 exhibits, seven in support and four against the motion, including a copy of the Standards for Obstetric-Gynecologic Hospital Services published by the American College of Obstetricians and Gynecologists and the bylaws which showed that when staff privileges at Holy Family Hospital were to be reduced, the doctor involved was entitled to a hearing before final recommendations were made to the Board.

Dr. Fahey testified concerning his qualifications as a surgeon, his experience as a staff member of Holy Family Hospital, his exemption from the consultation rule and the notice he received, without a prior hearing, that the exemption was being removed by the hospital Governing Board. He described to the trial judge how he went to Sister Amata and told her that application of the rule to him was going to ruin his professional standing as a highly regarded surgeon and lead to the loss of his practice. He said that Sister Amata replied, "Oh, doctor, this doesn't mean very much. All you have to do is tell your patient in the hospital that the rules require you to have a consultation with a member of the Department of Gynecology and Obstetrics." This assurance, Dr. Fahey said, did not calm his concern. He told the court of his request for a hearing that was denied and of his belief that the recommendations of the obstetrics and gynecology department that the consultation rule be uniformly applied were brought about by fellow doctors who were envious of his success as a gynecologic surgeon.

Three colleagues of Dr. Fahey testified for him with two of them saying they were familiar with the consultation rule, and it was their opinion that such a mandatory requirement demeaned a doctor in the estimation of his patients. One doctor with extensive medical practice experience explained to the trial judge that the opinion of a consulting doctor was not binding on the requesting doctor. The consulting doctor comes into the medical case; he may or may not examine the patient and he may or may not convey his views to him; he forms his opinion, enters it on the patient's medical chart, and thereafter it is for the requesting doctor to decide how he will proceed.

Sister Amata was the hospital's only witness. She testified about her training and education in hospital administration, her knowledge of the consultation rule, its origin and purpose. She said the decision of the Governing Board to remove Dr. Fahey's exemption from the rule came on recommendation of the obstetrics and gynecology department that its rules be uniformly applied to all members of the hospital medical staff. This recommendation resulted from the department's conclusion that it could function efficiently only if its rules were uniformly enforced. She said the Board in reviewing its obstetrics and gynecology department was faced with the choice of either phasing it out or enforcing the department's rules as it had recommended. She insisted there was no substance to Dr. Fahey's belief that application to him of the rule was brought about by envious fellow doctors. She testified to having told Dr. Fahey he could not have a hearing because she and members of the Governing Board did not look upon its application as a reduction of his privileges. They were not telling Dr. Fahey that he could not perform major gynecologic operations in the hospital; all they were requiring of him was to request a consultation before doing so. The consultation was to be free of any expense to the patient. The objective of the consultation rule was improved patient care and, as is the case with consultations among physicians generally, it was not intended to bind or limit the professional discretion of the requesting doctor. Sister Amata told the trial judge that there had never been any question about Dr. Fahey's capabilities as a surgeon; no one ...

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