not a requirement for participation in these programs.
The Court has sifted the facts and weighed the circumstances surrounding the involvement of the state in the private conduct of the Hospital, Burton v. Wilmington Parking Authority, supra, at p. 722, and has concluded, (1) that the economic aid which the Hospital receives from the state and federal government is not so dominant as to afford the basis for a contention that the state is merely utilizing private trustees to administer state activity, Powe v. Miles, supra, at p. 81, and (2) that regulation of the Hospital pursuant to state law and as a condition for governmental aid does not involve a state interest in supervising or influencing those actions of the Hospital which caused the harm allegedly suffered by the Plaintiff. Ward v. St. Anthony Hospital, supra, at p. 675. In other words, the state has not so far "insinuated itself into a position of interdependence with [the Hospital] that it must be recognized as a joint participant in the challenged activity. . . ." Burton v. Wilmington Parking Authority, supra, at p. 725. Plaintiff has failed to sustain his burden of proving that the July 28, 1971 action of the medical staff executive committee was "state action" as required by 42 U.S.C. § 1983.
2. Hospital's Offer of Subsequent Due Process Hearing.
As noted in the Court's findings of fact, after extensive negotiations between the parties the Hospital offered a rehearing of the charges by Dr. Thomas against Dr. Hoberman. See footnote 1. Even if it were determined that Plaintiff was entitled to a due process hearing on the charges against him, in my view, the rehearing offered by the Hospital complied with constitutional requirements. The proposed rehearing included the following safeguards: An impartial hearing committee consisting of at least 3 members of the medical staff who had not actively participated in the matters under consideration, or at the option of the parties, an independent medical arbitrator engaged at the parties' expense; the right to be represented by medical or legal counsel; the right to call and examine witnesses; the right to introduce exhibits and documentary evidence; the right to cross-examine witnesses; a decision by the hearing committee or independent medical arbitrator based upon the evidence produced at the hearing; and the right to appeal the decision of the hearing committee or the independent medical arbitrator to the Board of Trustees.
Plaintiff contends that the rehearing proposed by the Hospital did not comply with constitutional due process requirements in that the Hospital would not agree to be bound by the decision of an independent arbitrator and that the Hospital would not agree to remove the July 28, 1971 executive committee finding from the record. "Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors." Hannah v. Larche, 363 U.S. 420, 442, 80 S. Ct. 1502, 1515, 4 L. Ed. 2d 1307 (1960). In my view, the Hospital had no duty to submit to binding arbitration. The proposed rehearing would have been before a hearing committee composed of at least three members of the medical staff who had not actively or formally participated in consideration of the charges against Dr. Hoberman, but who may have had knowledge of the matters in controversy. Due process, of course, requires an impartial decision maker. But prior involvement in some aspects of a case will not necessarily bar a person from acting as a decision maker in that case so long as he did not participate in the making of the determination under review. Goldberg v. Kelly, 397 U.S. 254, 271, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). The Hospital also agreed that the parties could at their option and own expense, engage an independent medical arbitrator to hear and determine the matter. The fact that the Hospital did not agree to be bound by the hearing committee or the independent medical arbitrator makes little difference, since Plaintiff's interest in clearing his name would surely have been accomplished upon a favorable decision by whomever heard the case. Since no affirmative action in the way of curtailment of privileges was ever taken against Dr. Hoberman, there is no affirmative action which the Hospital would have been required to take. Nor is there merit to Plaintiff's proposition that the Hospital was required to remove the July 28, 1971 finding from the record. Although Plaintiff contends that this refusal of the Hospital tends to make the subsequent hearing more in the nature of an appeal, the procedures of the proposed rehearing indicate that it was to be a de novo hearing, not an appeal. Plaintiff also argues that the prior findings should be expunged from the record because he is entitled to a fair hearing before he is adjudged to be guilty of the charges against him. However, in a case involving the dismissal of a civil service employee for allegedly having made recklessly false and defamatory statements about fellow employees, the Supreme Court held: "Since the purpose of the hearing in such a case is to provide the person 'an opportunity to clear his name,' a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause" Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (filed April 16, 1974). As noted previously, Plaintiff suffered no curtailment of privileges as a result of the July 28, 1971 finding, and his interest in clearing his name could have been accomplished at the rehearing despite the Hospital's refusal to remove the prior finding from the record. Furthermore, the Hospital stated that the issue of what to do about the prior finding could be raised at the rehearing. This could only mean that had the rehearing resulted in a decision favorable to the Plaintiff, the Hospital would have taken appropriate action as to the prior finding.
I have concluded that the proposed rehearing offered by the Hospital in its letter of January 25, 1973 fully complied with due process requirements under all the circumstances. It should be noted that the only relief requested by Plaintiff in this action was that the Hospital be ordered to provide him a rehearing at this time. Had the Court been inclined to do so, the procedural safeguards of the ordered hearing would not have exceeded those previously offered by the Hospital.
B. State Law Claims.
Plaintiff contends that under principles of contract law and under state law requiring that non-profit organizations act fairly in dealing with its members, he is entitled to a fair hearing on the charges against him. In Berberian v. Lancaster Osteopathic Hospital Association, Inc., 395 Pa. 257, 149 A.2d 456 (1959), the Pennsylvania Supreme Court held that the relationship of a medical staff member to a hospital is essentially one of contract, and that the medical staff by-laws, approved by the hospital directors, became a part of that contract. Therefore, where the by-laws of the medical staff of the hospital require that a staff member be provided a hearing prior to dismissal from the medical staff, the hospital is bound by that provision and must provide the physician with a fair and impartial hearing. Had Dr. Hoberman been dismissed as a member of the medical staff or had any of his privileges as a medical staff member been curtailed, he would have been entitled to a hearing as a matter of contract because the medical staff by-laws provided for a hearing in such circumstances. But the Plaintiff was not subjected to any curtailment of privileges. Under the by-laws, the executive committee had the duty to investigate any breach of ethics that may be reported. That is exactly what they did, and other than the issuance of the findings of the executive committee, no other affirmative action was taken against the Plaintiff. The Plaintiff was not deprived of any rights specifically conferred upon him by the medical staff by-laws. I do not read Berberian as authorizing a court to insure that as a matter of contract right, a staff member be treated fairly in all respects even though there is no provision in the by-laws covering the specific treatment involved. Other cases cited by Plaintiff requiring reasonableness and procedural fairness when action taken by an organization adversely affects the individual interests of a member are not on point because in those cases the actions involved concerned dismissal from the organization. In the case at bar, the Plaintiff was not dismissed from the medical staff and in fact, the evidence indicated that the July 28, 1971 findings of the executive committee had no adverse impact upon Plaintiff's position as a member of the medical staff.
Even if Pennsylvania law would require that Plaintiff be afforded a fair and impartial hearing on the charges against him, for the reasons stated previously, the Hospital's proposed rehearing fully complied with the notions of justice and fair play.
For the reasons stated in this opinion, the Court will order the Clerk to enter judgment in favor of Defendant Lock Haven Hospital, together with costs. I feel it is appropriate to add the following observations. Since the parties had not been able to agree upon procedures for a rehearing of the charges against the Plaintiff, he found it necessary to seek the aid of the Court in settling the details of such a hearing. By this Opinion, the Court has found that, as a matter of law, the Hospital was not required to do more than it has already done. However, the dissension and bad feelings which accompanied the charges against Dr. Hoberman and the subsequent findings of the executive committee still exist at the Hospital. Therefore, the Court recommends that the Hospital keep open its offer of a rehearing in line with the proposals in its letter of January 25, 1973. It is the Court's firm conviction that should the Plaintiff accept the offer of a rehearing as proposed, the matters in controversy here will finally and fairly be determined, and the interests of the parties and of the Hospital will be best served.