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Spencer v. Comm. Hospital of Evanston





APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.


Rehearing denied August 26, 1980.

Warren Spencer, M.D. (plaintiff), brought suit against the Community Hospital of Evanston and its various directors (defendants) for injunctive relief (count I) and damages for libel (count II). Separate motions to dismiss were filed. The trial court dismissed the amended complaint for failure to state a cause of action. Plaintiff appeals.

We will summarize and separately consider the allegations of both counts of the amended complaint. The pertinent facts alleged in the amended complaint and contained in appended exhibits are accepted as true when ruling upon a motion to dismiss. Soules v. General Motors Corp. (1980), 79 Ill.2d 282, 284, 402 N.E.2d 599.

Count I.

Count I alleges since January 1974, plaintiff was chief of the medical staff of the hospital, an Illinois not-for-profit corporation. The hospital adopted and amended its bylaws from time to time. Count I alleged the bylaws were appended as Exhibit "A". Actually, there is no such exhibit attached to the original or amended complaints. Plaintiff alleges defendants "wrongfully conspired" to suspend him and deny him staff privileges. At a meeting on September 9, 1974, defendants "unlawfully passed certain resolutions without regard to the bylaws" then in effect.

Plaintiff further alleges on September 19, 1974, defendants convened a special meeting of the board of directors. They voted to rescind the action taken on September 9, in regard to the plaintiff. Defendants then "purported to amend the by-laws * * * without proper notice * * *." The board received a "Report and Proposal of the Chairman of the Medical Joint Conference Committee and Executive Vice President" making charges against plaintiff and proposing his medical staff privileges be reduced, suspended, or terminated or his staff appointment be terminated. The charges made on September 19 were the same charges made on September 9. The board then notified plaintiff of this proposal and ordered a hearing on the charges if plaintiff demanded one. The minutes of this meeting were attached as an exhibit to plaintiff's original complaint. They include a fragment of the new resolution thus adopted.

The amended complaint alleges eight respects in which plaintiff's right to "elementary due process" was violated. These allegations include "malicious and/or arbitrary and capricious" actions against plaintiff; inconsistencies in the bylaws; inadequate time to prepare a defense and "malicious and/or arbitrary rulings" by defendants. Plaintiff also alleges the hearings were concluded in accordance with ad hoc procedural rules "illegally and arbitrarily announced by the defendants." The amended complaint prayed preliminary and permanent injunctive relief.

The allegations of plaintiff's original complaint are well summarized in a previous opinion by this court. (Spencer v. Community Hospital (1975), 30 Ill. App.3d 285, 332 N.E.2d 525.) This opinion shows the trial court denied plaintiff's motion for a preliminary injunction but directed a postponement of the hearings until November 5, 1974. It also appears the hearings commenced November 11, 1974. After 25 sessions, the hearings were completed on February 18, 1975. Plaintiff was served with notice of the decision of the directors on March 31, 1975. The previous opinion of this court was filed in plaintiff's appeal from denial of a preliminary injunction. The appeal was dismissed as moot.

It further appears the defendants ruled plaintiff was removed from his post as chief of staff for one year and suspended from medical privileges at the hospital for three months which was to be followed by a probationary period of three months.

• 1 The accepted rule in Illinois is that staff decisions of private hospitals are generally not subject to judicial review. (Jain v. Northwest Community Hospital (1978), 67 Ill. App.3d 420, 427, 385 N.E.2d 108, appeal denied (1979), 75 Ill.2d 591.) However, "where a physician's existing staff privileges are revoked or reduced, a private hospital must follow its own bylaws in doing so or be subject to limited judicial review." (Jain, 67 Ill. App.3d 420, 425, and cases there cited; Treister v. American Academy of Orthopaedic Surgeons (1979), 78 Ill. App.3d 746, 755, 396 N.E.2d 1225, appeal denied (1980), 79 Ill.2d 630.) Thus, the issue before this court is whether plaintiff's amended complaint alleges failure of the Community Hospital of Evanston, a private institution, to follow its own bylaws in suspending the plaintiff.

Plaintiff alleges at the September 9 meeting defendants passed a resolution in contravention of the then existing bylaws. It is unnecessary to determine whether this action was actually a violation because it was rescinded by the directors at the September 19 meeting.

Plaintiff makes several allegations which cannot be substantiated by the record before us. In a letter to the secretary of the board of directors, plaintiff referred to "flagrant abuse[s] of the then existing Corporate Bylaws * * *." This letter was attached as an exhibit to the original complaint. Plaintiff also states in the letter, "the amendment passed on September 19th is nonconforming in almost all respects." In the amended complaint plaintiff alleges defendants purported to amend the bylaws without proper notice and took immediate action regarding the charges under the new amendment. However, we are unable to pass upon these contentions. Plaintiff has failed to furnish us with the bylaws in dispute. Plaintiff as appellant in this court has the duty to furnish a complete record on appeal. (H. Vincent Allen & Associates v. Weis (1978), 63 Ill. App.3d 285, 296, 379 N.E.2d 765, appeal denied (1979), 72 Ill.2d 582.) A reviewing court is unable to determine if error was committed in the trial court unless the evidence relied upon appears in the record. O'Brien v. Walker (1977), 49 Ill. App.3d 940, 948, 364 N.E.2d 533.

In addition, plaintiff contends defendants violated his right to due process in several respects. The record reflects plaintiff participated in hearings which continued for 22 consecutive nights. Defendants state in their brief, without contradiction by plaintiff, that in most of these hearings plaintiff was represented by his present counsel. Plaintiff was furnished a copy of the charges and a copy of the new amendment to the bylaws. We have before us no factual allegations by plaintiff as to violation of his due process rights and no reference by plaintiff to any such violation at any stage of the hearings. Under ...

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