The opinion of the court was delivered by: LORD, III
This suit claims a deprivation of constitutional rights under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983 (Supp. 1970). Plaintiff initially sought a temporary restraining order directing the defendants to reinstate one of plaintiff's privileges restricted by the defendant Dr. Mogul, Chairman of the Department of Surgery at the Delaware Valley Hospital, on October 17, 1969. On that date Dr. Mogul informed the plaintiff that he could only perform gastrectomies in the presence of a supervising surgeon acceptable to Dr. Mogul. We refused to grant a temporary restraining order because it did not appear that plaintiff's injury was either immediate or irreparable under the terms of F.R. Civ. P. 65(b). We did, however, hold a prompt hearing on January 12, 1970. At that time it appeared that plaintiff's claimed denial of rights guaranteed by the Due Process Clause of the Fourteenth Amendment was prematurely before us due to the existence of a potentially curative administrative remedy still available to him. Plaintiff agreed to avail himself of that remedy and, pending resort to it by him, we retained jurisdiction of the case. We also reserved decision on defendants' motion to dismiss the complaint because it might have become moot.
Plaintiff took the appeal proffered him by the defendant hospital and a hearing was held by the hospital's medical staff over the space of two evenings in late January. After the restriction of his privileges was upheld by the vote of the medical staff, plaintiff returned to us with several constitutional claims which were the subject of a hearing held on March 3, 1970. At that hearing the stenographic notes of the testimony presented at the defendant hospital's hearing were introduced into evidence, and we took additional testimony. On the basis of that record, we make the following findings of fact.
1. Plaintiff, Richard J. Citta, D.O., is an individual residing at 2 Spinythorn Road, Levittown, Bucks County, Pennsylvania. He is duly authorized to practice osteopathic medicine in the Commonwealth of Pennsylvania and was certified on January 30, 1967 by the American Osteopathic Board of Surgery as competent to practice the specialty of surgery.
2. The defendant Delaware Valley Hospital ("Hospital") was incorporated pursuant to the Pennsylvania Nonprofit Corporation Law of 1933 and became a nonprofit corporation by virtue of a Decree of the Court of Common Pleas of Bucks County, Pennsylvania on March 20, 1956. The Hospital's Articles of Incorporation provide for a Board of Directors of not less than nine nor more than fifteen members.
3. The twenty-one individual defendants are presently serving as members of the Hospital's Board of Directors and nine of them are also members of the Hospital's Medical Executive Board.
4. In 1965 and 1966 the Hospital participated in the Hill-Burton program, receiving $794,440 in federal funds for a rebuilding and enlargement program which expended a total of $3,226,807.22. Pursuant to Federal requirements concerning Hill-Burton funds the Commonwealth of Pennsylvania allocated and administered the Hill-Burton grant to the Hospital.
5. Part of plaintiff's specialty is the major surgical procedure called a gastrectomy, which is the surgical excision of all or any part of the stomach.
6. On or before October 17, 1969 and for some preceding years, plaintiff was a member of the Hospital's Medical Staff ("Corporate Staff") in the Department of Surgery.
7. Plaintiff has no staff affiliations at any other hospital in the Lower Bucks County area and his practice is limited to this area.
8. On or about September 21, 1969, Gerald Maher, a twenty-five year old drug addict (percodan addiction), was admitted to the Hospital in critical condition. At 2:45 a.m. on the morning of September 22, plaintiff was called for an emergency operation on Maher, which began shortly after 4 a.m. The anesthesia chart for that operation reads "[no] peripheral pulse or blood pressure on arrival in O.R." After the operation Maher's condition was improved but still critical.
9. At 10 a.m. on October 9, 1969, Maher developed an acute gastro-intestinal hemorrhage. With the agreement and concurrence of the attending physicians, Drs. McCafferty and Carroll, that Maher would die within the hour unless emergency surgery were performed, plaintiff conducted a second emergency operation on Maher beginning at 10:45 a.m. Because Maher had no ascertainable blood pressure, the anesthesiologist refused to administer anesthesia to Maher, and plaintiff performed major abdominal surgery with Maher under a local anesthesia. After the operation Maher was returned to his room alert, talking, with good color, but still in critical condition.
11. On October 17, 1969, Harvey N. Mogul, D.O., President of the Board of Directors of the Hospital and Chairman of the Department of Surgery, notified plaintiff by letter as follows:
"This is to inform you that you may not perform gastrectomies under your own responsibility. The responsible surgeon must be one whose qualifications are acceptable to the Chairman of the Department of Surgery."
This action in no way restricted plaintiff's other surgical procedures or privileges.
12. Plaintiff can still admit patients to the hospital for gastrectomies as long as he is accompanied by a physician acceptable to the Chairman of the Department of Surgery. That physician need not be Dr. Mogul or a member of the Hospital staff.
13. After receiving this notice, the plaintiff requested that the action of Dr. Mogul be reviewed by the Executive Committee of the Department of Surgery. That Committee never convened a meeting to discuss Dr. Mogul's action concerning the plaintiff, nor was the plaintiff permitted to appear before the Committee. Members of the Committee were contacted individually by Dr. Mogul, the Department Chairman. On November 10, 1969, Dr. Mogul wrote plaintiff that "the [Executive Committee of the Department of Surgery] voted to uphold the revocation by the Chairman of the Department of Surgery."
14. On November 21, 1969, the Medical Executive Board of the Hospital held a meeting which is summarized in pertinent part by the minutes of the meeting as follows:
"1. Revocation of Dr. Citta's gastrectomy privileges. Dr. Mogul discussed the reasons for above action. A motion was made by Dr. Carroll to uphold the action of the Chairman of the Department of Surgery. Seconded by Dr. Pearson. Motion passed unanimously."
This action was based on what Dr. Mogul told the Medical Executive Board he had observed with respect to Gerald Maher at Cooper Hospital on October 11, 1969. At that time Maher's abdomen was opened by surgeons in Cooper Hospital while Dr. Mogul was present.
15. The first knowledge plaintiff had of this Executive Board meeting was contained in a letter from the secretary of that Board dated December 10, 1969 which stated:
"This letter is to inform you that the decision made by the Medical Board, at the meeting of November 21, 1969, was to uphold the action of the Chairman of the Department ...