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Treister v. Academy of Orthopaedic Surgeons





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.


On November 3, 1976, the plaintiff, Michael R. Treister, M.D., filed a three-count complaint against the defendant, American Academy of Orthopaedic Surgeons, challenging the academy's denial of his initial application for membership in the academy. The academy filed a motion to dismiss plaintiff's complaint on various grounds which included the failure to state a cause of action because the decision of a private professional association rejecting an application for membership is not subject to judicial review. The plaintiff filed a motion to strike the motion to dismiss. On January 24, 1977, the trial court denied the academy's motion to dismiss count I, but granted the motion to dismiss counts II and III.

On January 31, 1977, the plaintiff filed a motion for compelled discovery of all records and correspondence pertaining to Michael R. Treister. The academy responded with a motion to limit discovery. In its motion the academy contended that discovery should be limited to a determination of the threshold issue as to whether there exists a justiciable matter. In addition, the academy claimed that the plaintiff's application file and the investigative activities contained therein are privileged and confidential and not subject to discovery. On February 18, 1977, after an in camera inspection, the trial court entered an order directing the academy to produce the plaintiff's application file.

Subsequently, the plaintiff filed a motion for default judgment stating that the academy refused to produce the application file. The academy filed a motion for summary judgment, a motion to vacate the discovery order of February 18, 1977, on constitutional grounds, and a petition for certification of legal issues for interlocutory appeal. The trial court entered an order denying the three motions. The court granted, in part, the academy's petition for certification but reserved its ruling on the specific orders and issues to be certified.

On August 8, 1977, the court certified the following questions:

"1. Order of January 24, 1977 sustaining Count One of the Complaint and striking Counts Two and Three of plaintiff's complaint. Question: Does plaintiff's complaint state a cause of action, and if so, in which counts?

2. Order of February 18, 1977 granting plaintiff's Motion for compelled discovery and denying defendant's motion for protective order and the order of May 24, 1977 denying defendant's motion to vacate and denying plaintiff's motion for sanctions. Issue: Is the order compelling discovery a proper order?"

The case comes before this court as a permissive interlocutory appeal pursuant to Supreme Court Rule 308. Ill. Rev. Stat. 1977, ch. 110A, par. 308.

Count I of the complaint states that the plaintiff is an orthopaedic surgeon licensed to practice medicine and surgery in the State of Illinois and has been certified by the American Board of Orthopaedic Surgery. The plaintiff is a member of numerous professional associations, holds several teaching positions, is the author of numerous papers relating to the field of medicine and is a member of the attending staff of seven Chicago hospitals.

The plaintiff asserts that the American Academy of Orthopaedic Surgeons, a not-for-profit corporation, admits board-certified orthopaedic surgeons to fellowship and membership in the academy on the basis of standards and rules adopted by the academy and published in their bylaws. The plaintiff claims that active fellowship in the academy is a factor relied upon by hospitals in the granting of orthopaedic surgical privileges, by insurance companies in the establishment of malpractice rates, by courts> in determining the expertise of an orthopaedic surgeon whose testimony is offered as expert and by young physicians selecting a clinic in which to practice. The plaintiff characterizes membership in the academy as "a practical necessity for an orthopaedic surgeon who wishes to realize maximum potential achievement and recognition in his specialty."

In November 1974 the plaintiff applied for membership in the academy by submitting an application form. According to the plaintiff the academy prepared a list of applicants for active fellowship and broadly distributed it to physicians throughout the United States together with a request for information concerning the reputation and qualifications of the persons named thereon.

In 1976 the plaintiff was interviewed by Dr. Louis Kolb, who informed him that there was adverse information in the plaintiff's file. Dr. Kolb predicted that this information would result in the rejection of his application. Although Dr. Kolb informed the plaintiff of the general nature of the charges, the plaintiff asserts that Dr. Kolb did not provide sufficient detail to enable him to rebut the charges. When the plaintiff requested that Dr. Kolb permit him to examine the file, the doctor replied that academy regulations forbade such an examination. Dr. Kolb also denied the plaintiff's request that he further specify the nature of the charges and that he identify the persons making the charges. In addition, Dr. Kolb refused to cite any authority for denying the plaintiff's request to see his file and to be informed of the charges and the identity of his accusers.

The plaintiff states that, at the suggestion of Dr. Kolb, he wrote a letter to the academy attempting to rebut the charges as well as possible under the circumstances and requesting all available appeal rights and the right to be represented by counsel. The plaintiff received no communication from the academy until October 1976, when he received a letter notifying him that his application had been rejected, that the matter was closed and that he could not reapply for admission for three years.

The plaintiff claims that the procedures followed by the academy in rejecting his application violate the academy's bylaws. The bylaws require the regional admissions committee to "conduct a personal interview with the applicant," but the plaintiff was interviewed solely by Dr. Kolb. The bylaws require that the committee "shall make all necessary investigation to verify the credentials of the applicant and determine his qualifications." The plaintiff claims the investigation was insufficient to determine his qualifications because he was not given a fair opportunity to present his case or rebut the charges against him. In addition, the by-laws require every member to abide by the principles of the American Medical Association, one of which states that:

"The basic principles of a fair and objective hearing should always be accorded the physician whose professional conduct is being reviewed. These basic guarantees are: a specific charge, adequate notice of hearing, the opportunity to be present and to hear the evidence, and to present a defense. * * * These principles of fair play apply in all disciplinary hearings and in any other type of hearing in which the physician may be deprived of valuable rights. Whenever physicians sit in judgment on physicians and whenever that judgment affects a physician's reputation, professional status or livelihood, these principles of fair play must be observed. * * *"

The plaintiff charges that these principles were violated because he was not informed of any specific charge, was given no notice or opportunity to be present when his application was to be considered and was not allowed to hear the evidence against him nor to present a defense.

Finally, the plaintiff maintains in his complaint that the bylaws set forth the following conditions precedent to active fellowship:

"1. Active fellowship shall be limited to those individuals who are certified by the American Board of Orthopaedic Surgery and whose medical practice is devoted exclusive to orthopaedic surgery. * * *

2. Active fellows must either be citizens of or in practice in the United States or Canada.

3. Active fellows must be certified by the American Board of Orthopaedic Surgery and must have engaged in the exclusive practice of orthopaedic surgery for a minimum period of three (3) years subsequent to the completion of their period of training.

4. Each applicant must submit an application to the secretary of the academy on forms provided by the academy and the application must be endorsed by two (2) active fellows, or by one (1) active fellow and one (1) emeritus fellow.

5. Election to active fellowship shall be by two-thirds vote of the board of directors.

6. Active fellowship is contingent upon continuing compliance with the articles of incorporation and the by-laws of the corporation.

7. No person shall be elected or remain a fellow of the academy unless he is of good moral character and adheres to the principles of medical ethics of the American Medical Association."

The plaintiff claims that he meets every requirement for active fellowship except for election by two-thirds of the board of directors. The plaintiff, therefore, concludes that the procedure followed by the academy in rejecting his application was fundamentally unfair and that the rejection is void as a matter of common law.

In his prayer for relief the plaintiff asks for a declaration that he is entitled to be informed of any charges against him; to be informed of the identity of his accusers; to have a fair hearing before an impartial adjudicator, and to have conclusions of fact fairly supported by evidence of record. In addition, the plaintiff asks for a declaration that the rejection of his application was void.

Count II of the plaintiff's complaint re-alleges the allegations contained in count I and further states that "because of the relationship between the academy, the American Medical Association, the hospitals of the State of Illinois, and the State of Illinois itself, rejection of Plaintiff's application is State action." The plaintiff claims, therefore, that the procedure followed by the academy deprived him of his liberty or property without due process of law and seeks the same relief prayed for in count I.

In count III the plaintiff alleges that the academy breached the contract established by the plaintiff's application for membership. The application contained the following provision:

"* * * It is further specifically agreed by the undersigned, that in consideration of the Academy's treatment of the entire contents of this application, as well as all inquiries or investigations made pursuant thereto as privileged and confidential material, and not subject to publication or public dissemination whether voluntary, involuntary or by operation of law, that the undersigned specifically authorizes the Academy to make whatever inquiries and investigation it deems necessary to verify the credentials, professional standing and moral or ethical character of the undersigned. * * *"

The plaintiff claims that the academy breached this agreement and disclosed part of the contents of his application by preparing a list of applicants and broadly distributing the list to physicians throughout the United States. The plaintiff maintains that neither the designation of himself as an applicant nor the distribution of the list was reasonably necessary for the solicitation of information concerning his qualifications or authorized at any time. He contends this constituted a breach of the contractual obligation to guard the confidentiality of his application. The plaintiff asserts that the distribution of the list was not intended to solicit information concerning his qualifications but rather to enhance the power of the academy and, in conjunction with the later publication of a roster of members, to enable the medical community to ascertain what physicians were denied membership. The plaintiff claims that publication of a roster of members will inform the orthopaedic community of his rejection and will impair his professional reputation and financial situation. The plaintiff seeks an injunction forbidding the publication of the roster of members excluding his name and judgment in the amount of $10,000,000.


The academy argues that the trial court lacked jurisdiction of matters alleged in count I and maintains that the traditional rule is that judicial review is not available to examine a decision by a private professional association to reject an application for initial membership. (See Annot., 89 A.L.R.2d 964, 971 (1963).) The plaintiff contends that in recent years courts> have decided that an applicant to professional associations has a right to a fair hearing on his application and to reasonable standards for admission. Because the reviewing courts> in Illinois have not considered this issue, we will review decisions of other jurisdictions for assistance in the resolution of this issue.

In 1961 the Supreme Court of New Jersey decided Falcone v. Middlesex County Medical Society (1961), 34 N.J. 582, 170 A.2d 791, wherein it affirmed an order of the trial court directing the Middlesex County Medical Society to admit the plaintiff to full membership. The society's rejection of the plaintiff's application was based on an unwritten membership requirement which the court characterized as patently arbitrary and unreasonable.

In Falcone, the evidence revealed that the local hospitals required all their staff physicians to be members of the society, and that the society's refusal to admit the plaintiff to membership had serious adverse economic and professional effects on him. The court, in arriving at its decision to permit judicial review as a matter of policy, stated:

"When courts> originally declined to scrutinize admission practices of membership associations they were dealing with social clubs, religious organizations and fraternal associations. Here the policies against judicial intervention were strong and there were no significant countervailing policies. When the courts> were later called upon to deal with trade and professional associations exercising virtually monopolistic control, different factors were involved. The intimate personal relationships which pervaded the social, religious and fraternal organizations were hardly in evidence and the individual's opportunity of earning a livelihood and serving society in his chosen trade or profession appeared as the controlling policy consideration. Here there have been persuasive indications * * * that in a case presenting sufficiently compelling factual and policy considerations, judicial relief will be available to compel admission to membership; * * *." (34 N.J. 582, 596, 170 A.2d 791, 799.)

Undoubtedly, the court's decision was influenced by the society's virtual monopoly over the use of local hospital facilities and the fact that the plaintiff could not successfully continue his practice of surgery and obstetrics without the use of these facilities.

In Salter v. New York State Psychological Association (1964), 14 N.Y.2d 100, 198 N.E.2d 250, the plaintiff, a practicing psychologist, sought a court order to admit him to the association because membership is "a tangible thing of value" to any psychologist. The association responded that the plaintiff failed to meet the educational requirement which is a condition of membership. The New York Court of Appeals interpreted Falcone as requiring a showing of "economic necessity" before courts> will interfere with the affairs of a private association. In refusing to grant relief to the plaintiff in Salter, the court noted that the record revealed no monopoly power over the profession or an arbitrary or unreasonable refusal to grant membership.

The Arizona Supreme Court in Blende v. Maricopa County Medical Society (1964), 96 Ariz. 240, 393 P.2d 926, held that the plaintiff's membership application to the society could not be denied arbitrarily if the denial would deprive ...

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