Staff hearing as he was entitled to do under the Hospital's By-Laws. But in any event, even if his ballot should not have been counted and should now be disallowed, his ballot was not decisive. Therefore the fact that Dr. Mogul presided at the hearing did not deprive plaintiff of Due Process.
Plaintiff's second contention is that the framing of the question to be decided by the Corporate Staff -- "Do you support the action of the Medical Executive Board?" -- was really a "loaded" one, since the Staff was asked to review the decision of the administrative body which under section 10(a) of the Hospital's By-Laws, controls all promotions of Staff members. We construe this argument to mean that the Corporate Staff did not decide whether the decision to restrict the plaintiff's privileges was correct, but rather whether the staff considered it reasonable for the Board to have taken that action. Thus, plaintiff seems to say, all the Corporate Staff really decided was whether there was a reasonable basis for restricting plaintiff's privileges at the time that decision was made, not whether that restriction should be allowed to stand in light of all the facts known at the time of the Staff hearing. If the Corporate Staff really decided the former question, this case would pose serious constitutional issues about the extent to which plaintiff could be deprived of an adjudicatory hearing on the ultimate facts supporting the restriction of his privileges through the expedient of reducing his hearing to a kind of appellate review of the initial decision. It is clear, however, that the Corporate Staff decided the latter question.
In the first place, the fact that members of the Corporate Staff were asked to evaluate the decision of the body which controlled their promotions is of no significance where that evaluation is made by secret ballot. More importantly, the entire course of the hearing was clearly an inquiry into the question whether, on the facts as found by the Staff, restriction of plaintiff's privileges was appropriate. All the testimony gathered in the eleven hour hearing focused on the actual extent of the gastrectomy performed by plaintiff on Gerald Maher, plaintiff's judgment in omitting to do a vagotomy, and the accuracy and completeness of the operative notes plaintiff entered concerning the entire operation. Thus, while the question posed to the Corporate Staff is subject to an interpretation which relegates the Staff to a reviewing function, the record establishes that the Staff's actual inquiry was whether continued restriction of plaintiff's privileges was proper under all the circumstances.
Finally, it is true that plaintiff's counsel was precluded from retaining in the hearing room several doctors who were not members of the Corporate Staff of the Hospital. However, these doctors could have been called as witnesses and two of them were in fact called. Defendants also kept their doctor-witnesses who were not members of the Staff out of the hearing room except when testifying. Plaintiff contends that counsel was prejudiced by his lack of ready access to the expertise of Dr. McCafferty, a consulting physician in the treatment of Gerald Maher. However, plaintiff's counsel has not cited to us any specific examples of prejudice and our reading of the transcript makes clear that counsel, one of the most eminently qualified attorneys in this area of the law, was thoroughly prepared for the hearing, represented plaintiff extremely well, and was not prejudiced by the absence of Dr. McCafferty.
As to counsel's inability to present closing argument to the Corporate Staff, it is also true that opposing counsel did not sum up either. We cannot say that after two evenings of medical testimony to a hospital staff of physicians that the barring of any summation by counsel constitutes a violation of Due Process where all the testimony was directed to the procedures employed in one operation and was within the general professional expertise of the deliberative body. The hearing accorded plaintiff in this case was a fundamentally fair hearing, with procedures which did protect plaintiff "against [possibly] arbitrary action," Ohio Bell Tel. Co. v. Public Util. Comm., 301 U.S. 292, 302, 57 S. Ct. 724, 81 L. Ed. 1093 (1937).
Plaintiff's final argument is that there is not sufficient evidence in the record to support the restriction of his privileges, and that the decision to restrict them was therefore arbitrary and capricious. As we indicated in our formal findings, the Corporate Staff heard conflicting expert testimony concerning whether plaintiff removed a sufficient amount of Maher's stomach during his first operation, and whether he should have performed a vagotomy under the circumstances.
It was the function of the Corporate Staff hearing to resolve those conflicts in the testimony, and this court is not now in a position, either practically or legally, to resolve them. While the questions are not at all free from doubt, as is indicated by the large vote in plaintiff's favor, we are not free to substitute our judgment for that of the physicians and surgeons comprising the Corporate Staff of the Hospital. And because acceptance of the defendants' evidence provides sufficient evidence on which to base the decision to restrict plaintiff's privileges, the decision must be allowed to stand. See Koelling v. Board of Trustees, 259 Iowa 1185, 146 N.W. 2d 284, 296-297 (1967).
IV. CONCLUSIONS OF LAW
1. The complaint states a cause of action under 42 U.S.C.A. § 1983.
2. The court has jurisdiction of the parties and the subject matter, 28 U.S.C.A. § 1343(3), and pendent jurisdiction over the ancillary state law claim.
3. Under Article X, §§ 10(b), (c), (d), of the Hospital's By-Laws, the Medical Executive Board is empowered to review the decision of the Executive Committee of the Department of Surgery.
4. Under Article X, § 13, of the Hospital's By-Laws, the Medical Executive Board's decision was reviewable by the Corporate Staff of the Hospital.
5. The Hospital's By-Laws permit the Chairman of the Department of Surgery, Dr. Mogul, to evaluate and change the privileges of the Staff of the Department of Surgery, subject to review by the Medical Executive Board under Article X, § 10(b).
6. Due Process of Law was accorded plaintiff by the Hospital and by the defendants in deciding to restrict plaintiff's privileges.
Any factual references under "Discussion" shall be considered as our Findings of Fact in addition to those set forth under "Findings of Fact", supra, and any conclusions of law contained in "Discussion" shall be deemed our Conclusions of Law in addition to those set forth under "Conclusions of Law", supra.
And now, this 13th day of May 1970, it is ordered that plaintiff's request for a permanent injunction be and it hereby is denied and judgment is entered in favor of the defendants.