# FILED

Novemb er 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk JOE BRYAN T, M.D., ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9703- CH-00132 VS. ) ) W ilson Chancery ) No. 96332 TENET, INC., ( NATIONAL MEDI CAL ) ENTERP RISES) d/b/a U NIVER SITY ) MEDICAL CENTER, ) ) Defendant/Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F WILSON CO UNTY AT LEBANON, TENN ESSEE THE HONORABLE C. K. SMITH, CHANCELLOR

HENRY CLAY BARRY 106 S. Co llege Lebanon, Tennessee 37087 Attorney for Plaintiff/Appellee W ILLIAM C. MOODY The Cavalier

Building, Suite #509 95 White Bridge Road Nashvil le, Tennessee 37205 Attorney for Defendant/Appellant

REVERSED AN D REMAND ED

BEN H. CAN TRELL, JUDGE
CONCUR: KOCH, J. DISSEN T: TODD, P.J., M .S. 

## O P I N I O N- 2 - On the basis of the due proce ss provisi on of Arti cle I, § 8 of the Tennessee Constitution, the Chancery Court ofWilson County enjoined Tenet , Inc., the owner of a Lebanon hospital, from pr oceeding w ith the invest igation of a compl aint aga inst a physici an with st aff privileg es at the hospit al. We conclude that the procedure employed by the hospital do es not violate the physi cian’s const itutional or contractual r ights. We, therefore, reverse the lower court’s judgment.

I. Facts and Pr ocedural History

Dr. Joe Bryant has

practiced for many year s as a gener

al surgeon at the Unive rsity

Medical Center (UMC) in Lebanon. UMC is a private hospital owned b y Tenet, Inc. and is the only hospital in W ilson County. All physicians working at UMC subscri be to a set of byl aws governing the i nvestig ation of complaints . Pursuant t o s tate r egulations t he bylaws contain a fair hearing pr

ocedure governing deci sions affecting medical staff priv ileges. See Lewisburg Com

munity H ospital v. Al

fredson , 805 S.W .2d 756 (Tenn. 199 1).

a. Th e B y la ws

The UMC b ylaws

establish a t hree-tier p rocess that i s intended to incorporatethe peer rev iew proc ess endorsed by the General As sembly in Tenn. Code Ann. § 63-6-219 (1997). The proc ess is tri ggered by the filing of a “ request for
corre ctive action.” The fir st step of the proc ess is an i nformal “investigation” by the
execu tive com mittee . Th e bylaws stat e specif ically that this step is not a “he aring” and permit the executive co mmittee to take a br oad range of actio ns. The bylaws are silentabout t he role o f lawyers du ring t he f irst phase; h owever , it is unco ntradicted that the hospital does not permit lawyer s for anyone to be pr

esent at any of the first- 3 -

stage meetings dur ing the investigative process. An y person di ssat isf ied with the executive committee’s recommendations may appeal.

The second stage of the proceeding is much more f ormal than the first and involves a hearing before a medical review committee specifically chos en to hear the appeal. The byl aws req uire wr itten not ices at this stage. They also requi re the
execu tive committee to prov ide the physic ian with “ notice of the acts or omissions with which th e aff ected practit ioner is ch arged or a l ist of the chart numbers under question, if any, o r the reasons for the action or recom mendation.” The p arties are permitted to use “representatives ,” and these representatives may be lawyers if all parties desire couns el. The hearingprocedure is also quit e formal. The hospital must presentits case first, t he physici an second, and both pa rties are pe rmitted to present rebuttal proof. If the phys ician is t he appealing part y, he or she must pr ove by c lear and convinci ng evidence that the acti on or the re comm end atio n of the e xecut ive committee was

arbitrary , unreasonable, o r not supported by substanti al evidenc e.

The third and final step of the process is a n appeal to the gover ning body of the hospital. This review is based on the record of the prior pr oceedings, and the grounds for r

eview include (1) the failure of theearlier pr oceedings to comply w ith the b ylaws , ( 2) the failure t o afford due process or a fair hearing , (3) that the recommendation was arbi trary, u nreasonable, or capricious , (4) that themed ic al review committee’s decision was contrary to the wei ghtof the evidence, or (5) that any bylaw re lied on by t he m edic al revi ew com mitt ee la cked subs tant ive rat iona lity.

b. The Co mplaint and Subsequent Procedure- 4 - D r. Bryant’s treatment of a particular pa tient became the sub je ct o f a complaintto UMC’s

administrator . Later, UM C’s chief of staff discussed theincident with Dr. Bryant and asked h im to atte nd a m eeti ng of the h ospi tal’ s exec utive committee to revie wthe incident. H e declined to at tend voluntar ily and l ater was served with a written notice of the meeting. He also recei ved acopy of the patient’s chart.

Prior

to the meeting, Dr. Bryant wrote a lengthy, detailed letter to UMC’s administrator

presenting his side of the controversy. On the day of the mee ting, Dr. Bryant insisted that

the committee permit his lawy er to attend. The committee denied that request, and Dr. Bry ant refused to attend w ithout his l awyer . The committee met and took some acti on but the decisi on is not incl uded in the recor d.
Shortlythereafter, Dr. Bryant filed suit again st Tene t, Inc. seeki ng to enjoin the hospital fro m proceeding u nder its by laws becau se the proceedi ngs violate d the due process pr

ovisions of the federal and stateconstitutions . He later amended his complaint to al lege that Tenet was violating his contractual rights under the bylaws. The trial cour

t determined that the hospital pr ocedur es did not violate the federal constitution but thatthey did v iolate Dr. Bryant’s state constit utional and contractual rights. According ly, the tr ial court ent ered an order e njoining U MC from conducti ng any further disci plin ary proceedings against D r. Bryant

until it ( 1) provi des him wi th written notice of the compla int against him, (2) commence s a ne w execu tive committee investigation, and (3) allows him to h ave an attorney present during all stages of the proceedings.

II. The Const itutional Issues- 5 - We pass over the first issue in this analy sis, the issue of whether Dr. Bryant has a property

interest i n his staff priv ileges at UMC. Although our Suprem e Court in Nashville Memori al Hospita l, I

nc. v. Binkl

ey , 534 S.W.2d 318 (Tenn. 1976) held that a doctor di d not have a “ right”to practic e at a private hospital, for the purposes of this appeal we as sume that Dr. B ryant does have such a r ight.

The next question, then, is whether Ar

ticle I , § 8 of our Constituti on requires privateactors to co nform to the requi rements of due process before taking action wi th respect to t hat right. We conclude that it does not.

Article I, § 8 of the Tenn essee Constitution provides as follows: That no man shall be t aken or impriso ned, or disseiz ed of his freehold, liberties

or priv ileges, or

outlawed, o r exile d, or in any manner

destroyed or

deprived of his life, libe rty or prop erty, but by the j udgment ofhis peers or the law of the land.

In State v. Hale , 840 S.W.2d 307, 312 (Tenn. 19 92), our Supreme Court said: The phras e, ‘the l aw of the land’ , used in this section of our State Constit ution, and the phr as e, ‘due process of law,’ used in the Fi fth Amendment and in the fir st section of the F o urteenth Amendment to th e Constituti on of the United States, are synonymous phrases meaning one and the sam e thing. See also Burford v. State , 845 S.W.2d 204 (Tenn. 1992); State v. Smith , 834 S.W.2d 915 (Tenn. 1992)

. Since “stat e action” is necessary

to invoke the protection of the Fourteenth Amendment, Long v. State , 510 S.W.2d 83 (T enn . Crim . App . 197 4), we conclude that the same is true w ith respect t o Article I , § 8.

We recogniz e that Article I , § 8 has been int erpreted asprohi bitin g some state actions that w

ould not vi olate the due proc ess provi sions of the Fifth an d F ourteenth Amendments to the Uni ted States Const itution. Compare Nor th v. Russell

, 427 U.S. 328 (1976) and State ex rel. Anglin v. Mitchell , 596 S.W .2d 779 (Tenn.- 6 -

1980). But, despitethe differences in w ording in the two constitutional provisi ons, the fundamental protection provided b y each is protection from thegovernment
. State v. Heer , 412 S.W.2d 218, 220 Tenn. 36 (1967); Ennis v. State , 549 S.W.2d 380 (Tenn. Crim. App. 1977). We know of no case that appli es the protecti on of Article I, § 8 to actions by individuals.

Dr. Bryant cites Lyle v. L ocal 452 , 124 S.W.2d 701, 174 Tenn. 222 (1939) in support of hi s contention that Article I , § 8 does apply to private actions. I n that case, our Su preme Court found that a un ion’s picketing of the plaintiff ’s business
was unlawful, a n uisance, and caus ing irreparable injur y to the pla intiff’s propert y rights. The court, accordingly , issued apermanent injunc tion to prohibi t the picketin g. The court did sa

y, “w e conclude therefore that complainant , as a result of the conduct of defendants, was depri ved of his li berty and pr operty, asguaranteed to him by the 5th and 14th Amendments to t he Federal Constitution . . . and Artic le 1, Section 8 , of the Cons titu tion of T enn esse e.” 12 4 S.W .2d a t 704 . But , we read the quoted part of the cour t’s op inio n as a desc ripti on of the ri ght in va ded by the defendants’ unlawful action rat her than a fi ndin g that the defendants’ action wa s prohibited by the constitutional provisi ons cited. The court hardl y needed a cons titutional bas is for the injunction since the common l aw remedies availabl e for the prevention ofirreparable harm were e ntirely

adequate.

We are convi nced that Articl e I, Section 8of the Tennessee Consti tution did not apply

to the actions of UMC, a pri vate corpor ation.

III.
Dr. Bryant amended his complai nt in the court below to assert a claim that Tenet, Inc. was violat ing his contractual r ights under the h o s p i t a l b y l a w s . We do not question the fact that the bylaws are part of Dr. Bryant’s contract with the hospital.See Lewisburg Com

munity H osp. v. Alfredso

n , 805 S.W.2d at 759 (Tenn. 1991). But the sectionsof the bylaws gover ning corrective act ions do not give him the rig hts he seeks (formal wr itten notice and the right to be repr esen ted b y an at torn ey at the inves tigativ e stage .) His complaint on this issue reverts to his constitutional arguments; in effect he complains that the bylaws do not provide what due process requires. Since w e have alre ady resol ved that issue adversely to Dr. Bryant, we think his complaint based on the bylaws must also fail.

The judgment of the court below is reversed and the complaint is dismissed. Remand the cause to the Chancery Court of Wilson County for any further necessary

proceedings . Tax the costs on appeal to th e appellee.

_____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ WILLIAM C. KOCH, JR., J UDGE

DISSENTING OPINION: HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

IN THE COUR T OF APPEALS OF TEN NESSEE MIDDLE SEC TION AT NASHVILLE

JOE BRYAN T, M.D., ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9703- CH-00132 VS. ) ) W ilson Chancery ) No. 96332- 8 -

TENET, INC., ( NATIONAL MEDI CAL ) ENTERP RISES) d/b/a U NIVER SITY ) MEDICAL CENTER, ) Reversed and ) Remanded Defendant/Appellant. )



### J U D G M E N T
This c a use came on to be hear d upon the recor

d on appeal from the Chancery Court of W ilson County, bri efs and argum e nt of counsel; upon consideration whe reof , this Court is of the opinion that in th e decree of the Chance llor there is reversible error.

In accordance w ith the opinion of the Cou rt filed herein, it is, therefore, ordered and decreed by this Court

that the decree of the Chancellor be revers ed. The
cause is dismissed, remanded to the ChanceryCourt ofWilson County for any further proc eed ings n eces sary, and f or th e col lect ion o f th e cos ts ac crue d bel ow.

Costs of this appeal are taxed against Dr. Joe B ryant, for which
execu tion may is sue i f ne cess ary.

ENTER _______________________.

_________________________________ BEN H. CAN TRELL, JUDGE

_________________________________ WILLIAM C. KOCH, JR., J UDGE