        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00421-COA

MICHAEL C. MOLLESTON, M.D.                                                APPELLANT

v.

RIVER OAKS HOSPITAL, INC., RIVER OAKS                                       APPELLEE
HEALTH SYSTEM D/B/A RIVER OAKS EAST

DATE OF JUDGMENT:                         03/11/2014
TRIAL JUDGE:                              HON. WILLIAM R. BARNETT
COURT FROM WHICH APPEALED:                RANKIN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  WHITMAN B. JOHNSON III
                                          GAINES SPENCER BEARD JR.
ATTORNEYS FOR APPELLEE:                   THOMAS L. KIRKLAND JR.
                                          ANDY LOWRY
NATURE OF THE CASE:                       CIVIL - OTHER
TRIAL COURT DISPOSITION:                  AFFIRMED APPELLEE’S DECISION TO
                                          DENY APPELLANT’S APPLICATION FOR
                                          MEDICAL-STAFF PRIVILEGES
DISPOSITION:                              REVERSED AND REMANDED - 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Dr. Michael Molleston appeals River Oaks Hospital's decision to deny his application

for medical-staff privileges. We find that River Oaks violated Dr. Molleston’s due-process

rights and its own bylaws when it allowed a physician to actively participate in two stages

of the administrative process. We therefore reverse the Rankin County Chancery Court’s

judgment and remand this case for further proceedings consistent with this opinion.

                                         FACTS
¶2.    Dr. Molleston, a neurosurgeon, has practiced in Mississippi since 1995. He

maintained a private practice in Hattiesburg, Mississippi, and he was the neurosurgeon for

the University of Southern Mississippi football team. In 2011, Dr. Molleston decided to

move to Jackson. He successfully applied for medical-staff privileges at Central Mississippi

Medical Center.

¶3.    Dr. Molleston also applied for medical-staff privileges at River Oaks on September

12, 2011. On November 7, 2011, the Credentials Committee of River Oaks met and

reviewed Dr. Molleston's application. The record reflects that the Credentials Committee

was composed of the following: Dr. Bush, Committee Chair; Dr. Davis; Dr. Keven Vance;

Dr. William McCraney; Cindy Dishongh, Chief Operating Officer of Business Development;

Shannon Brown, Chief Operating Officer; Sherry Cook, Chief Nursing Officer; Rebecca

Wilson, Medical Staff Manager; Tammy Chappell, Credentialing Specialist; and Dap Gunter,

P1 Analyst.

¶4.    According to the minutes of that meeting, Dr. William G. Bush chaired the

Credentials Committee. Three other physicians attended the meeting, one of whom was Dr.

John Davis, a neurosurgeon. During the meeting, Dr. Davis informed the Credentials

Committee that various defense attorneys and/or worker’s compensation carriers had

previously asked him or one of his partners to provide second opinions regarding patients

whom Dr. Molleston had treated. Dr. Davis explained that after his past experience of

reviewing Dr. Molleston’s patient records, he questioned Dr. Molleston’s clinical

decision-making in five different patient cases. The Credentials Committee tabled Dr.



                                             2
Molleston's application without reaching any decision over its concerns about the privileged

nature of the medical information they had received from Dr. Davis.

¶5.    The Credentials Committee met again on December 5, 2011, and decided to

recommend denying Dr. Molleston's application for medical-staff privileges

       based on concern for the best interest and welfare of patients. This decision
       was made due to questionable competency and judgment, specifically related
       to a history of proposing and/or performing surgical procedures based on
       patient treatment recommendations notsupported after second neurological
       opinion, as well as applicant's interpretations of radiological films that conflict
       with Radiologists' determinations.

The minutes from that meeting show that Dr. Bush again chaired the Committee meeting.

¶6.    The Medical Executive Committee met on December 9, 2011, and approved the

Credentials Committee's decision to deny Dr. Molleston’s application. The Medical

Executive Committee Members present at the hearing were: Dr. Steven Patterson, Dr. Davis,

Dr. Steven Choteau, Dr. David Wender, Dr. Barry McCay, Dr. Jack Moriarity, Chief Nursing

Officer Sherry Cook, Vicki Stribling (Risk Manager), Jan Shannon (Director of Quality),

Rebecca Wilson (Medical Staff Manager), Dr. Missy McMinn, Dr. David Westbrook, Dr.

Ron Cannon, Dr. David Carroll, Dr. James O’Mara, Denny Bruns (Chief Executive Officer),

Cindy Dishongh (Chief Operating Officer/Business Development), Bob Newton (Vice

President of Surgical Services), and Shannon Brown (Chief Operating Officer).

¶7.    Once Dr. Molleston received notice of the Medical Executive Committee's decision

to adopt the Credentials Committee's recommendation that his application for medical-staff

privileges be denied, he requested a hearing before the Fair Hearing Plan Committee at River




                                               3
Oaks.1 Dr. Molleston received notice from the President and CEO of River Oaks that the

hearing would comply with River Oaks’s Bylaws, specifically Article 15 of the Fair Hearing

Plan, and Dr. Walter Shelton would chair the five-person committee. This letter specifically

stated that the hearing would be held according to Article 15 of the Fair Hearing Plan in the

Medical Staff Bylaws of River Oaks. Dr. Molleston was also informed that Dr. Bush would

"present the case to support the adverse recommendation" by the Credentials Committee,2

and Dr. Davis would testify about his disagreements with Dr. Molleston's clinical decisions

in "various cases" at the Fair Hearing Plan Committee Meeting. However, despite requests

for discovery by Dr. Molleston, he was not informed about the “various cases” that Dr. Davis

planned to discuss.

¶8.    The Fair Hearing Plan Committee convened on May 2, 2012, to hear Dr. Molleston's

appeal. At the hearing, Dr. Bush delegated to Dr. Davis the task of presenting the case on

behalf of the Medical Executive Committee to support its decision to deny Dr. Molleston's

application. As stated, Dr. Bush and Dr. Davis served on the Credentials Committee that

recommended denying Dr. Molleston’s application. Dr. Bush remained in attendance during

the hearing.

¶9.    During the hearing, Dr. Molleston's counsel objected to the fact that River Oaks failed


       1
        Article 15.1.1 of the Bylaws provides that if “any individual receives notice of a
recommendation of the Medical Executive Committee that, if ratified by the decision of the
Board of Trustees, will adversely affect [his] appointment to or status as a member of the
Medical Staff or [his] exercise of clinical privileges[,]” then that individual is entitled to a
hearing before a hearing committee of the medical staff, referred to herein as the Fair
Hearing Plan Committee.
       2
           See Article 15.5.8 of the Bylaws.

                                               4
to disclose the patient records and scans that Dr. Davis submitted to support the Credentials

Committee’s recommendation. As a result, the hearing was postponed. When the Fair

Hearing Plan Committee met again on November 5, 2011, Dr. Shelton again presided as

chairperson of the Fair Hearing Plan Committee and Drs. Bush and Davis both attended. The

Bylaws establish that a member of the Credentials Committee could provide support for its

adverse recommendation to the Fair Hearing Plan Committee, and the Bylaws further

establish that no staff member or board member who participated in the adverse

commendation could be a member of the Fair Hearing Plan Committee. The Fair Hearing

Plan Committee voted to affirm the decision by the Medical Executive Committee, thereby

denying Dr. Molleston's application for medical-staff privileges to River Oaks Hospital.

Significant to our decision on appeal, the minutes of the Fair Hearing Plan Committee

hearing reflect that Dr. Bush participated in the committee’s deliberations, vote, and decision.

¶10.   Dr. Molleston appealed to River Oaks’s Board of Trustees. The Board met on January

16, 2013, and took the matter under advisement. On February 11, 2013, the Board affirmed

the decision by the Medical Executive Committee and Fair Hearing Plan Committee to deny

Dr. Molleston’s application.

¶11.   Then, on April 8, 2013, Dr. Molleston filed an appeal in the chancery court. After

oral argument, the chancellor entered an order affirming River Oaks's decision on March 11,

2014, finding "River Oaks Hospital afforded [Dr. Molleston] substantial compliance with its

bylaws and procedural due process" and that "the decision of the Appellee's Board of

Trustees was not arbitrary, capricious or unreasonable." This appeal followed.



                                               5
¶12.   Now on appeal before this Court, Dr. Molleston again asserts that River Oaks violated

his due process rights, as guaranteed by both its own bylaws and common law in two ways

by: (1) allowing a board member who actively participated in the decision to deny Dr.

Molleston privileges to then serve as a deliberating and voting member of the Fair Hearing

Plan Committee, and (2) allowing the chairman of the Fair Hearing Plan Committee to be a

member of a private practice that was in direct economic competition with Dr. Molleston.

Dr. Molleston also argues that River Oaks's reasons for denying his application for medical-

staff privileges failed to comply with Mississippi Code Annotated section 73-25-83 (Rev.

2012).3

       3
           Section 73-25-83 provides:

       The board shall have authority to deny an application for licensure or other
       authorization to practice medicine in this state and to discipline a physician
       licensed or otherwise lawfully practicing within this state who, after a hearing,
       has been adjudged by the board as unqualified due to one or more of the
       following reasons:

                (a) Unprofessional conduct as defined in the physician licensure
                and disciplinary laws, pursuant to Section 73-25-29;

                (b) Professional incompetency in the practice of medicine or
                surgery; or

                (c) Having disciplinary action taken by his peers within any
                professional medical association or society, whether any such
                association or society is local, regional, state or national in
                scope, or being disciplined by a licensed hospital or medical
                staff of said hospital, or the voluntary surrender or restriction of
                hospital staff privileges while an investigation or disciplinary
                proceeding is being conducted by a licensed hospital or medical
                staff or medical staff committee of said hospital. Provided
                further, anybody taking action as set forth in this paragraph
                shall report such action to the board within thirty (30) days of

                                                 6
                                  STANDARD OF REVIEW

¶13.     Jurisprudence and statutory law provides great discretion to hospital boards in

determining the moral commitment and competence of its staff when considering whether

to accept applications for staff privileges. See Som v. Bd. of Trs. of Natchez Reg’l Med. Ctr.,

98 So. 3d 500, 502-03 (¶8) (Miss. Ct. App. 2012. Section 73-25-93(1) states that

         [a]ny hospital licensed pursuant to Sections 41-9-1 et seq. is authorized to
         suspend, deny, revoke or limit the hospital privileges of any physician
         practicing or applying to practice therein, if the governing board of such
         hospital, after consultation with the medical staff considers such physician to
         be unqualified because of any of the acts set forth in Section 73-25-83;
         provided, however, that the procedures for such actions shall comply with the
         hospital and/or medical staff bylaw requirements for due process.

¶14.     We acknowledge that “[t]he legislature has clearly limited judicial surveillance of

hospital disciplinary proceedings[, including decisions to grant, revoke, or suspend medical

staff privileges,] to the narrow inquiry of whether the hospital complied with the procedural

due-process requirements prescribed by its own bylaws.” Warnick v. Natchez Cmty. Hosp.,

Inc., 904 So. 2d 1019, 1022 (¶11) (Miss. 2004) (citing Wong v. Garden Park Cmty. Hosp.,

Inc., 565 So. 2d 550, 551 (Miss. 1990)). “The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at (¶14)

(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Moreover, our review is limited to

the record established before the hospital. See Wong v. Stripling, 881 F.2d 200, 202 (5th Cir.

1989).

¶15.     This Court has recognized that when reviewing a hospital's decision to limit a doctor's



                its occurrence.

                                                7
privileges:

       No court should substitute its evaluation of such matters for that of the hospital
       board. It is the board, not the court, which is charged with the responsibility
       of providing a competent staff of doctors. The board has chosen to rely on the
       advice of its medical staff, and the court cannot surrogate for the Staff in
       executing this responsibility. Human lives are at stake, and the governing
       board must be given discretion in its selection so that it can have confidence
       in the competence and moral commitment of its staff. The evaluation of
       professional proficiency of doctors is best left to the specialized expertise of
       their peers, subject only to limited judicial surveillance. The court is charged
       with the narrow responsibility of assuring that the qualifications imposed by
       the board are reasonably related to the operation of the hospital and fairly
       administered. In short, so long as staff selections are administered with
       fairness, geared by a rationale compatible with hospital responsibility, and
       unencumbered with irrelevant considerations, a court should not interfere.

Som, 98 So. 3d at 502-03 (¶8) (citations omitted).

                                       DISCUSSION

¶16.   According to Dr. Molleston, River Oaks violated its own bylaws and his due-process

rights when Dr. Bush actively particpated in the Credentials Committee’s decision to deny

his application, and then served as a deliberating and voting member of the Fair Hearing Plan

Committee. Dr. Molleston also argues that River Oaks’s reason for denying his application

fails to comply with section 73-25-93(1). Finally, Dr. Molleston alleges that River Oaks’s

decision should be reversed because the chairman of the Fair Hearing Plan Committee, Dr.

Shelton, was a direct economic competitor.4 We will address only the dispositive issue of

       4
        According to Dr. Molleston, subsequent to the hearing, he learned that Dr. Shelton,
the chairperson of the Fair Hearing Plan Committee, worked with a medical group who
recently hired a fellowship-trained spinal surgeon who performed surgeries similar to that
of Dr. Molleston. As a result, Dr. Molleston claims that Dr. Shelton’s group practice placed
him in direct economic competition with Dr. Molleston, and thus disqualified him as a board
member. Dr. Molleston provides that Dr. Shelton failed to disclose this information at the
hearing, therefore Dr. Molleston was unaware of this alleged conflict. Hence, Dr. Molleston

                                               8
whether River Oaks failed to comply with its own Bylaw requirements due to Dr. Bush’s

participation in both the adverse credentialing recommendation and in the subsequent

decision of the Fair Hearing Plan Committee.

¶17.   The review hearing procedures established by the Bylaws for the review of adverse

credentialing recommendations disqualified Dr. Bush from participating in the deliberation

and decision of the Fair Hearing Plan Committee since he participated in the initial adverse

credentialing recommendation.5 Dr. Bush’s participation in the deliberation and decision of

the Fair Hearing Plan Committee violated the procedures established by River Oaks in its

own Bylaws to provide for a fair review of an adverse recommendation of an application for

medical-staff privileges. Mississippi Code Annotated sections 41-9-1 (Supp. 2014) and 73-

25-93 authorize hospitals to deny hospital privileges to any physician considered to be

unqualified, so long as the hospital follows its own bylaws.

¶18.   Article 15.1.3 of the Bylaws states that “all hearings and appellate reviews shall be

in accordance with the procedural safeguards set forth in this Article to assure that the

affected individual is accorded all rights to which [he] is entitled.” As stated, our judicial

review is limited in this case to determine whether River Oaks followed its own procedural

due-process requirements, and we recognize that “[t]he fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a meaningful manner.”


raised no objection to Dr. Shelton’s presence. We acknowledge that the record shows that
the Bylaws state that “members” possess a right to a Fair Hearing Plan Committee free of
economic competitors. We decline to address the issue of any alleged economic conflict as
applied to an “applicant” for medical staff privileges.
       5
           See Article 15.4.1 of the Bylaws.

                                               9
Warnick, 904 So. 2d at 1022 (¶11). River Oaks defined for itself within its Bylaws what

constituted a meaningful time and meaningful opportunity to be heard.

¶19.   The Mississippi Department of Health performs the licensing of hospitals in

Mississippi, in accordance with Mississippi Code Annotated section 41-9-11 (Rev. 2013).

See Claypool v. Mladineo, 724 So. 2d 373, 379 (¶18) (Miss. 1998) (discussing the licensing

of state hospitals and the rules and regulations, or minimum standards, governing the

licensing and standards for the operation of hospitals in Mississippi). To maintain its license,

a hospital must comply with the Department of Health’s rules and regulations governing

hospital operations. Hospital bylaws ensure that the procedures of the hospital’s governing

boards comply with the professional standards required for licencing. The Department of

Health “promulgates rules and regulations governing the licensing and standards for the

operation of hospitals in the state” in accordance with Mississippi Code Annotated section

41-9-17 (Rev. 2013). Id. In Claypool, the Mississippi Supreme Court explained:

       These regulations, known as the Minimum Standards of Operation for
       Mississippi Hospitals (M.S.O.M.H.), require each hospital to establish a
       medical staff which has the overall responsibility for the quality of medical
       care provided to patients in the hospital. Hospital governing boards are
       required to delegate to their medical staffs the responsibility for evaluation of
       the professional competence of their fellow medical staff members.

Id. (internal citations omitted). Additionally, these “minimum standards do not require the

medical staff to be employees of the hospital.” Id. at (¶19).6

       6
        As acknowledged by the supreme court in Claypool, medical-staff bylaws establish
committees and procedures to accomplish the evaluation of professional competence, as
required by the hospital minimum standards in order for hospitals to maintain licensing.
Claypool, 724 So. 2d at 379 (¶18). The supreme court has explained that the “evaluation of
the competence and qualification of medical staff members is most often performed in the

                                              10
¶20.   Mississippi Administrative Code 15-16-1:41.5 provides that a hospital’s governing

body possesses “overall responsibility for the conduct of the hospital in a manner consistent

. . . [with] high quality of patient care.” The Code further provides that among the duties of

the hospital’s governing body is the duty to adopt bylaws. Id. A hospital’s bylaws must

“provide the method of appointment, re-appointment, and removal of members of the

medical staff.” Id. Bylaws must also establish committees to conduct the review of

applicants for medical staff membership. See Miss. Admin. Code 15-16-1:41.6. The Code

also specifically allows the governing body to “delegate to the medical staff the authority to

evaluate the professional competence of applicants for staff membership and/or clinical

privileges[,]” and requires that the governing body “hold the medical staff responsible for

making recommendations to the governing body concerning initial staff appointments” and

grant of clinical privileges. Id.

¶21.   River Oaks adopted the Bylaws and delegated to its medical staff the authority to

evaluate the professional competence of applicants for medical-staff privileges. Section 73-

25-93 required River Oaks and its medical staff to abide by the procedures set forth in the

Bylaws regarding due process. See Warnick, 904 So. 2d at 1022 (¶12). In this case, the

Credentials Committee met twice, and Dr. Bush served as chair of the Credentials


appointment and reappointment procedures specified in the medical staff bylaws,” and the
supreme court acknowledged that these procedures are required by the M.S.O.M.H.
Claypool, 724 So. 2d at 379 (¶20). “The medical staff bylaws establish committees for the
review of qualifications and competence of applicants for medical staff membership and
current medical staff members.” Id. Upon application for appointment to the medical staff
of a hospital, a credentials committee first reviews the applicant’s qualifications. Id. Next,
“[t]he credentials committee makes a recommendation to the medical staff executive
committee[,] which in turn makes a recommendation to the hospital board.” Id.

                                             11
Committee.     The relevant article of the Bylaws provides that when the Credentials

Committee recommends denying an applicant’s request for hospital medical-staff

membership, the applicant may request a hearing before the Fair Hearing Plan Committee.

The Bylaws also provide the following:

       15.4   Composition of Hearing Committee:

       15.4.1        If a hearing is requested in a timely manner, the hearing shall be
       held before a committee of five (5) Active Medical Staff members who are
       appointed by the Medical Executive Committee, and are not in direct economic
       competition with the staff member involved. . . . No Staff member or Board
       member who has actively participated in the consideration of the adverse
       recommendation or decision shall be appointed a member of this hearing
       committee.

(Emphasis added).

¶22.   Relevant to the disposition of this appeal, a violation of Article 15.4.1 occurred when

Dr. Bush participated in the deliberation and decision of the Fair Hearing Plan Committee

after he served as chair of the Credentials Committee.7 As discussed, the Credentials

       7
          While we find section 73-25-93(1) controlling, we acknowledge that Dr. Molleston
cites to Banana v. State, 638 So.2d 1329, 1330-31 (Miss. 1994), and argues that the concept
that the same person cannot serve in both a prosecutorial and judicial position on the same
matter is well-established in a criminal setting. In Banana, both circuit judges in the district
were disqualified from presiding over the post-conviction relief motion because one judge
had been the district attorney at the time of prosecution, while the other was the assistant
district attorney at the same time. Id. at 1331. Dr. Molleston asserts that this same concept
carries over to an administrative proceeding. See Freeman v. Pub. Emp. Ret. Sys., 822 So.
2d 274, 281 (¶21) (Miss. 2002) ("Administrative proceedings should be conducted in a fair
and impartial manner, free from any suspicion of prejudice or unfairness. . . . Due process
guarantees neutrality on the part of those sitting in a judicial or semi-judicial capacity.").
        In Dean v. Public Employees' Retirement System, 797 So. 2d 830, 833 (¶18) (Miss.
2000), two members of the Medical Board who reviewed an application for benefits also
later sat on the Disability Appeals Committee. The supreme court held that the Board of
Trustees was not authorized "to appoint a committee comprised partly of members of the
Medical Board to sit as hearing officers in review of a decision by the Medical Board." Id.

                                              12
Committee recommended denying Dr. Molleston’s application.

¶23.   “The fundamental requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner[,]’” and we must look to the hospital’s own

bylaws to determine if the proceedings adhered to the bylaws’ requirements for meaningful

manner and meaningful time. Warnick, 904 So. 2d at 1022 (¶14). In this case, the

composition of the Fair Hearing Plan Committee members participating in the decision to

deny Dr. Molleston’s application violated Article 15.4.1. Additionally, this violation of a

mandatory Bylaw provision during the proceedings was not remedied prior to the final

decision by River Oaks, and therefore constitutes error because the manner of the

proceedings failed to comport with the Bylaws. In Warnick, the supreme court found that

the claimed bylaw violation and lack of notice were remedied when a hospital held a

subsequent hearing giving Warnick two opportunities to attend, present evidence, and testify.

Id. at 1023 (¶17). The Warnick court found the case of Noxubee County Board of Education

v. Overton, 483 So. 2d 301, 302-03 (Miss. 1985), similar in that the “mandatory dictates”

were not followed, but the error was later remedied by a subsequent hearing. Id. at (¶18).

See Wong, 565 So. 2d at 551. We thus find in this case that the failure to remedy the

violation of the Bylaws’ mandatory dictate as to the composition of the Fair Hearing Plan

Committee results in reversible error.

¶24.   Based upon the foregoing, we reverse the chancery court’s judgment, and we remand



at 836 (¶¶25-26). The supreme court explained that it would not address the possible due
process violation since statutory law failed to authorize Medical Board members to serve on
the Appeals Committee. Id. at 836-37 (¶27).

                                             13
this case to the Board of Trustees to review Dr. Molleston’s application in accordance with

procedures established in the Bylaws. Dr. Molleston’s remaining issues are moot; we decline

to comment upon the weight or sufficiency of the evidence submitted below, since we must

reverse on procedural due-process grounds for the failure to comply with applicable hospital

bylaw procedures.

¶25. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.

     LEE, C.J., IRVING, P.J., BARNES, ISHEE, MAXWELL AND JAMES, JJ.,
CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED IN PART BY WILSON, J. FAIR, J., NOT PARTICIPATING.

       GRIFFIS, P.J., DISSENTING:

¶26.   I respectfully dissent.

¶27.   I begin with my concern as to whether Dr. Molleston preserved his objection to a due-

process violation. Dr. Molleston was aware that Dr. Bush was present at the hearing. Yet

Dr. Molleston made no objection. Instead, the objection was raised only after he received

an adverse ruling.

¶28.   According to the transcript of the May 2 hearing, the chair identified the committee

members and included Dr. Bush. Dr. Molleston was aware that Dr. Bush had been on the

Credentials Committee and made no objection.

¶29.   Due process certainly provides Dr. Molleston the right to be heard. It does not,

however, allow Dr. Molleston to remain silent until after the hearing. I am of the opinion

that Dr. Molleston waived his due-process objection because he did not timely raise it. See


                                            14
Terrell v. Tschirn, 656 So. 2d 1150, 1152 (Miss. 1995) (“Terrell should not be allowed to

take his chances with a jury and then, after he loses, file his motion.”); Buchanan v.

Buchanan, 587 So. 2d 892, 897 (Miss. 1991) (a court “will not allow a party to take his

chances with a judge about whom he knows of grounds for recusal and then, after he loses,

file his motion”); Wilbanks v. Gray, 795 So. 2d 541, 547 (¶25) (Miss. Ct. App. 2001) (“If the

appellants had a problem with the religious affiliation of the special chancellor, their motion

for recusal should have been filed at the beginning of the action rather than after receipt of

an adverse ruling.”). For these reasons, I would find Dr. Molleston waived his due-process

objection.

¶30.   Further, I am of the opinion that Dr. Molleston has not shown a violation of the

bylaws. The composition of the Hearing Committee was established in article 15.4.1. Dr.

Molleston argues that Dr. Bush’s participation violated the last sentence, which reads: “No

Staff member or Board member who has actively participated in the consideration of the

adverse recommendation or decision shall be appointed a member of this Hearing

Committee.”

¶31.   The bylaws also provide that the right to a hearing is for the review of “a

recommendation of the Medical Executive Committee that . . . will adversely affect his/her

appointment . . . .” Article 15.1.1. Article 15.2.1 provides for “notice of an adverse

recommendation by the Medical Executive Committee.” Then, article 15.5.11 provides that

the Hearing Committee’s recommendation pertains to “the original adverse recommendation

of the Medical Executive Committee.” Therefore, the reference in article 15.4.1 to “the



                                              15
consideration of the adverse recommendation or decision,” is to the “recommendation of the

Medical Executive Committee,” not to any preliminary recommendation by the Credentials

Committee.

¶32.   Dr. Bush served on the Credentials Committee, not the Medical Executive Committee.

The bylaws do not prohibit a physician in that capacity from serving on the Hearing

Committee. According to the record, Dr. Bush did not “actively participate” in the Medical

Executive Committee’s decision. The Medical Executive Committee’s minutes state:

       DR. BUSH:              I was not [at the Medical Executive Committee meeting].
                              I’m part of the Credentials Committee—

       DR. MORIARITY: Oh, okay. I’m not part of credentials, so I don’t—I have
                      not—I can’t speak about that meeting.

       DR. BUSH:              But I was not at either of the meetings of the Med[ical]
                              Exec[utive Committee].

¶33.   Also, article 15.4.1 prohibits a person who participated in the Medical Executive

Committee decision from being “appointed a member of this Hearing Committee.” There

is no indication in the record that Dr. Bush was appointed a member of the Hearing

Committee. Dr. Molleston does not make this argument; instead, Dr. Molleston states that

Dr. Bush “deliberated with the Fair Hearing Committee” and “apparently” voted “as a

member of the Fair Hearing Committee.” There appears to be no appointment of Dr. Bush

as a member of the Committee, which would violate the bylaws.

¶34.   The chancellor held:

       The decision makers were those doctors specifically named to the Committee.
       Dr. Bush, with other persons not on the Committee, did participate at the
       hearing and the discussion after the hearing and all who attended the

                                              16
       discussion signed the minutes or opinion. All committee members present
       ruled unanimously against the Appellant. While it may have been better if
       only the actual committee members signed the minutes or opinion, the
       signature of Dr. Bush and the other non-committee members constitutes
       harmless error.

¶35.   I find no error in the chancellor’s decision. Therefore, I respectfully dissent. I would

affirm the chancellor’s judgment.

       WILSON, J., JOINS THIS OPINION IN PART.




                                             17
