Appeal from the Order of the State Civil Service Commission in case of Appeal of Dr. Joseph L. Magrath, Jr., No. 1436.
Howard M. Holmes, Assistant Attorney General, with him Cecil Maidman, Assistant Attorney General, Michael von Moschzisker, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
Richard B. Sigmond, with him Leonard Spear and Meranze, Katz, Spear & Wilderman, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 14 Pa. Commw. Page 258]
The Commonwealth, by its Department of Welfare, has appealed from an order of the State Civil Service Commission reinstating Dr. Joseph L. Magrath, Jr. to his former position of Surgeon I, regular status, at Haverford State Hospital. The parties agree that the termination of Dr. Magrath's employment by the Commonwealth was a furlough.
Prior to April 14, 1973, Dr. Magrath, a Board certified surgeon, whose professional competence is not in question, was required under the terms of his employment by the Commonwealth to devote 20 hours a week to his duties as staff surgeon at Haverford State Hospital. He conducted a surgical clinic where he examined patients thought by other staff physicians to need the attention of a surgeon, he visited and examined patients undergoing care in the hopsital's surgical
[ 14 Pa. Commw. Page 259]
ward and he performed operations on patients at the Haverford State Hospital operating room. His services in the last named category we find, from a close reading of the record, were performed as part of his salaried position and without special charge.
On January 1, 1973, Dr. Charles K. Gorby became the medical director at Haverford State Hospital. Dr. Gorby found that 80% of the patients at Haverford State Hospital had Blue Shield, Medicare, or other adequate insurance coverage for surgical care, and that what he considered to be few operations were being conducted at Haverford's operating room. He concluded that the hospital did not require a staff surgeon.
Dr. Gorby proposed that Dr. Magrath's surgical clinic should be eliminated. Decisions as to whether surgical examinations were indicated in particular cases would be made by the remaining medical staff of the hospital, which included general practitioners and at least one internist, Dr. Gorby, but no surgeon. All operations would be performed by non-staff surgeons, who would also provide post-operative care. Their fees for all services would, he found, be covered, in the case of most patients, by insurance. Dr. Gorby believed that this practice, similar to that in private hospitals, would bring about greater efficiency and save money.
Drs. Gorby and Magrath conferred on the matter. Although he was offered the opportunity to continue to provide surgical services to Haverford patients on a fee basis,*fn1 Dr. Magrath opposed Dr. Gorby's plan, believing that the surgical clinic should be maintained and conducted by a surgeon and that a staff surgeon should be available, not only to conduct surgical clinics, perform ...