                         IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2003-CA-01513-SCT


JAMIE S. WARNICK, M.D.

v.

NATCHEZ COMMUNITY HOSPITAL, INC.


DATE OF JUDGMENT:                              2/7/2003
TRIAL JUDGE:                                   HON. GEORGE WARD
COURT FROM WHICH APPEALED:                     ADAMS COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                        LISA JORDAN DALE
ATTORNEY FOR APPELLEE:                         HEBER S. SIMMONS, III
NATURE OF THE CASE:                            CIVIL - OTHER
DISPOSITION:                                   AFFIRMED - 12/02/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Jamie S. Warnick, M. D., a pediatrician, appeals from a decision by the Chancery Court

of Adams County that affirmed the Natchez Community Hospital’s suspension of her

privileges in the area of neonatal resuscitation.   Other than neonatal resuscitation, Dr. Warnick

was awarded full pediatric privileges at the Hospital.         We find that substantial evidence

supported the suspension of neonatal resuscitation privileges and that Dr. Warnick’s right to

due process was not violated. We therefore affirm the chancery court’s judgment.

                                               FACTS
¶2.     Dr. Warnick obtained associate medical privileges at the Hospital in 1997.            The

following year, Dr. Warnick applied for full privileges with the Credentials Committee.      After

Brian Stretch, M.D., voiced his concerns about Dr. Warnick’s alleged difficulty with the

intubation of children and asked that the grant of full privileges to Dr. Warnick be deferred, on

May 18, 1998, the Credentials Committee recommended the full grant of privileges with the

exception of neonatal resuscitation.        The Credentials Committee further recommended that

Dr. Warnick complete a neonatal intubation course within six months.

¶3.     The Executive Committee met on May 26, 1998, to consider the Credentials

Committee’s recommendations, but deferred a decision until such time that Dr. Stretch could

appear before it. Dr. Stretch appeared before the Executive Committee on June 23, and the

Executive Committee granted Dr. Warnick full privileges; however her privileges in neonatal

resuscitation were suspended until such time that Dr. Warnick successfully completed

pediatric intubation training.

¶4.     On July 16, Ray Bane, the Hospital’s chief executive officer, hand delivered to Dr.

Warnick’s office a letter stating that she was summarily suspended for neonatal resuscitation

privileges.    Dr. Warnick sent two letters in response, and in each letter she accepted the

decision that she needed to undergo further intubation training.

¶5.     However, on July 31, Dr. Warnick, in writing, requested a hearing or appeal for the

suspension of her neonatal resuscitation privileges.          The Hospital’s bylaws provide that a

physician whose privileges have been summarily suspended may request an appeal within




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fourteen (14) days of the suspension. Under the bylaws, Dr. Warnick’s July 31st request was

untimely.1

¶6.     Also under the bylaws, the Executive Committee was required to review its decision to

suspend privileges within 30 days.       The suspended physician did not have a right to attend,

testify at or present evidence at the review.      On August 14, the Executive Committee affirmed

its decision to suspend Dr. Warnick’s neonatal resuscitation privileges.

¶7.     This August 14 decision gave rise to a right to an appellate hearing before the Hospital’s

Governing Board, which appointed five (5) members of the medical staff to sit as an Appellate

Review Committee.       The Appellate Review Committee met on August 18, and Dr. Warnick

appeared and presented evidence before it.          She also admitted that she had not performed

neonatal intubations within the last year and that she would benefit from the suggested training.

¶8.     The Appellate Review Committee met on August 25 to review certain documents and

then granted Dr. Warnick an opportunity to respond to the documents which generally

supported the decision to suspend her neonatal resuscitation privileges. On September 22, Dr.

Warnick appeared before the Appellate Review Committee and retracted her admissions of

August 18.    She made some accusations and left without hearing or cross-examining a witness

who was to testify. The bylaws provided that Dr. Warnick was obligated to attend this meeting

and that her failure to attend, without good cause, was a waiver of her rights of appeal and an

assent to the adverse recommendation of the Appellate Review Committee.




        1
        Dr. Warnick had 14 days from the receipt of notice of suspension. The notice was
given on July 16. She should have requested an appeal by July 30.

                                                    3
¶9.     The Appellate Review Committee enlarged the record with the testimony of four more

witnesses on October 12.        Dr. Warnick did not attend.         The Appellate Review Committee

affirmed the decision to suspend the neonatal resuscitation privileges.

¶10.    Dr. Warnick appealed to the Adams County Chancery Court which ruled that the

Hospital complied with its bylaw requirements for                 due     process   and   affirmed   the

recommendations of the Appellate Review Committee and the Board of Trustees’s final

decision to suspend Dr. Warnick’s neonatal resuscitation privileges pursuant to Miss. Code

Ann. § 73-25-93(1).

                                             DISCUSSION

¶11.    When faced with Hospital’s decision to suspend or revoke privilege, a chancery court

has a very limited role of judicial review. It has no authority to proceed de novo but must limit

its review to the record which was made before the Hospital. Wong v. Stripling, 881 F.2d 200,

202 (5th Cir. 1989); Miss. State Bd. of Psychological Examiners v. Hosford, 508 So. 2d

1049, 1054 (Miss. 1987).         “The legislature has clearly limited judicial surveillance of hospital

disciplinary proceedings to the narrow inquiry of whether the hospital complied with the

procedural due process requirements prescribed by its own bylaws.” Wong v. Garden Park

Cmty. Hosp., Inc., 565 So. 2d 550, 551 (Miss. 1990).

¶12.    Dr. Warnick filed her lawsuit in November 1998. At that time Miss. Code Ann. § 73-

25-93 (1998) provided:

        (1)     Any 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


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               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.

(Emphasis added.)      Therefore, the hospital and/or medical staff must abide by the bylaws for

due process.    See Miss. Code Ann. § 73-25-93.          In addition, Miss. Code Ann. § 73-25-93

permits a physician to appeal a decision to the chancery court. See Miss. Code Ann. § 73-25-

95. See also Wong, 881 F.2d at 202.

¶13.   Dr. Warnick raises a number of arguments on appeal; however, the questions of whether

the Hospital followed its bylaws and violated Dr. Warnick’s due process rights are dispositive

of the case.   Dr. Warnick contends that the Hospital failed to follow its bylaws for notification

of her summary suspension.       First, she argues that the hand-delivered notice of the summary

suspension did not comply with the bylaws which required certified mail.

¶14.   We find that Dr. Warnick was not denied due process.                The fundamental requirement

of due process is the opportunity to be heard "at a meaningful time and in a meaningful

manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18

(1976); see also Dennis v. Dennis, 824 So. 2d 604, 609 (Miss. 2002).                        Notice of

governmental action which may deprive a person of life, liberty or property interests must be

"reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections." Dusenbery

v. United States, 534 U.S. 161, 169, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002) (quoting

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 319, 70 S. Ct. 652, 94 L.

Ed. 865 (1950)).



                                                  5
¶15.    Dr. Warnick does not allege that she was deprived of a fair hearing; rather, she argues

that she was not afforded due process because the manner in which notices were or were not

given did not comport with the Hospital's bylaws.2             On July 31, Dr. Warnick requested a

hearing or appeal.         The Hospital deemed this request to be untimely under its bylaws.

Nevertheless, Dr. Warnick again requested an appeal on August 7. On August 11, the Hospital

notified Dr. Warnick of an appeal hearing, and on August 18, Dr. Warnick met with the

Appellate Review Committee and presented evidence.              On August 26, the Appellate Review

Committee sent documents to Dr. Warnick for her consideration and invited her to either

appear at a hearing or submit a written response. On September 22, Dr. Warnick appeared

before the Appellate Review Committee and testified. On October 12, the Appellate Review

Committee issued         its   final   decision   suspending   Dr.   Warnick's   pediatric   resuscitation

privileges.

¶16.    The purpose of the notice was to apprise Dr. Warnick of her right to hearing and to

allow her opportunity to prepare a defense. Here, the Hospital sidestepped its own bylaws in

failing to notify properly Dr. Warnick of her right to a hearing.        However, Dr. Warnick's letter

of July 20 was written in response to the so-called deficient notice given by the Hospital of

the suspension of her pediatric resuscitation privileges.

¶17.    She later was afforded two separate opportunities to be present, present evidence and

testify on her behalf.     Admittedly, Dr. Warnick was not given an opportunity to appear before

the Executive Committee or the Board of Trustees before her privileges were suspended;


        2
         Dr. Warnick also complains that she did not receive notice of meetings of and
actions taken by the Executive Committee and the Board of Trustees. The Hospital's
bylaws, however, do not require such notice.

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however, she later appeared twice before the Appellate Review Committee, a group appointed

by the Hospital's Governing Body to review the actions of the Executive Committee and the

Board of Trustees.

¶18.    Dr. Warnick's claims are similar to those of a schoolteacher whose contract was not

renewed.     Proper notice was not given to the schoolteacher and she therefore missed her

opportunity to appeal. However, she eventually had a full hearing, and this Court held that, even

though "mandatory dictates" were not followed, the error was harmless.      The school board's

"default" was "effectively remedied" by the subsequent hearing.   See Noxubee County Bd. of

Educ. v. Overton, 483 So. 2d 301, 302-03 (Miss. 1985).

¶19.    Here, any alleged violation of due process was "effectively remedied" by the two

hearings afforded to Dr. Warnick. She does not complain that she was unable to present all

relevant evidence. Her claims were heard "at a meaningful time and in a meaningful manner."

Due process requires nothing more.

                                               CONCLUSION

¶20.    There was no violation of Dr. Warnick’s right to due process, and the Hospital’s

decision was supported by substantial evidence and was not arbitrary and capricious.

Therefore, we affirm the chancellor’s judgment affirming the Hospital’s suspension of Dr.

Warnick's neonatal resuscitation privileges.

¶21.    AFFIRMED.

       SMITH, C.J., COBB, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH,
JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ,
J., NOT PARTICIPATING.
       EASLEY, JUSTICE, DISSENTING:



                                                   7
¶22.       I respectfully dissent from the majority’s opinion today.           The majority fails to

acknowledge that the Hospital failed to abide by its own bylaws.            Despite these failures in

following its own bylaws, the Hospital was allowed to continue with its case and receive a

favorable ruling while Dr. Warnick had to strictly comply with the Hospital bylaws.

¶23.       Dr. Warnick argued that the Hospital’s failure to follow its bylaws violated her due

process rights. That is, Dr. Warnick contends that the Hospital failed to follow its bylaws for

notification of her summary suspension.       Ray Bane, chief executive officer for the Hospital,

hand delivered notice to Dr. Warnick’s office on July 16, 1998. However, Dr. Warnick argues

that hand delivering does not meet the requirements of notification by certified mail

according to the bylaws. Article X Section 2(A) and (B) governs the notification requirements

pursuant to the Hospital’s own bylaws and states:

           A. The Chief Executive Officer shall be responsible for giving prompt written
           notice of an adverse recommendation or decision to any affected member who
           is entitled to a hearing or to an appellate review, by certified mail, return
           receipt requested.

           B. The failure of a member to request a hearing to which he/she is entitled by
           these Bylaws within fourteen (14) days of the time of the posting in the
           United States Mail of said written notice and in the manner herein provided
           shall be deemed a waiver of his/her right to such hearing and any appellate
           review to which he/she might otherwise have been entitled on the matter.

(emphasis added). Dr. Warnick argues that she never received notice by certified mail, return

receipt requested, as required by the bylaws. Bane hand delivered the letter to her office on

July 16, 1998, and the delivery of the letter imposed the summary suspension. The letter stated

in part:

           As authorized by Article IX (Disciplinary Action), Section 2 (Summary
           Suspension) of the Medical Staff Bylaws and Rules and Regulations of Natchez
           Community Hospital, the Executive Committee hereby summarily suspends

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          your clinical privileges of resuscitation of infants effective upon receipt of this
          letter.

¶24.      The chancery court found that the delivery of the letter in this manner triggered a

fourteen (14) day time period in which Dr. Warnick had a right to request a hearing.            Dr.

Warnick requested a hearing on July 31, 1998, fifteen (15) days past the date of the letter. The

letter was received by the Hospital on August 4, 1998 nineteen days after the date of the letter.

Therefore, the chancery court found that Dr. Warnick’s waived the hearing process because the

request was not given within the fourteen-day time period as required by the bylaws.




¶25.      Dr. Warnick claims that the chancery court erred by finding that the hand delivery of the

letter met the notification requirements.      She maintains that the notification as stated in the

bylaws required delivery by certified mail and that the chancery court’s ruling was contrary to

law which requires a determination that the Hospital followed its own bylaws. Thus, she claims

that she did not waive her right to appeal the summary suspension imposed by the Executive

Committee. The record and the Hospital’s brief reflect that Hospital acknowledges that it hand

delivered the letter on July 16, 1998, and that the bylaws state that the notification should be

made by certified mail, return receipt requested.

¶26.      The bylaws clearly require that the Hospital’s chief executive officer give prompt

written notice of an adverse recommendation or decision to Dr. Warnick by certified mail,

return receipt requested.     The Hospital failed to provide notice in conformity with its own

bylaws.     Even the Hospital acknowledged that the letter was not sent certified mail, return

receipt requested to Dr. Warnick.        The Hospital declined to have a hearing on the matter of



                                                    9
the summary suspension because Dr. Warnick did not send a written request within 14 days of

receipt of the notice of suspension.

¶27.       Furthermore, the chancery court even stated in its opinion that the Hospital failed to

follow its own bylaws, yet inexplicably found that the Hospital complied with its bylaw

requirements.      The chancery court erroneously made its own determination without limiting

its review to the findings of the Appellate Review Committee. The problem as acknowledged

below by the chancery court in this case is that the Committee never made a finding.           The

chancery court stated:

                   Dr. Warnick raises two other issues which the Court will address. She
           suggests that the Appellate Review Committee failed to follow the directives of
           Article X, Section 6., paragraph F., which requires a finding that: a.) Dr.
           Warnick was not denied a fair hearing; b.) The decision was not arbitrary or
           capricious; and, c.) The decision was supported by the evidence.

                   It is true that the Appellate Review Committee did not make those
           specific findings in the record. However, their failure to include those
           specific findings in the record did not infringe upon the due process rights
           of Dr. Warnick. Certainly it would be senseless to remand this case back
           to the Appellate Review Committee simply for them to dictate those
           findings into the record where the record sufficiently supports those
           findings.

(emphasis added). Clearly, the Hospital failed to abide by its bylaws. However, the chancellor

excused the Hospital for failure to comply with its own bylaws. What is more, the chancery

court suggests that it is “senseless” to make the Hospital abide by the bylaws and make a

finding.

¶28.       The standard of review in this type of proceeding “clearly [limit] judicial surveillance

of hospital disciplinary proceedings to the narrow inquiry of whether the hospital complied

with the procedural due process requirements prescribed by its own bylaws.” Wong v. Garden


                                                 10
Park Cmty. Hosp., Inc., 565 So.2d 550, 551 (Miss. 1990). The hospital and/or medical staff

must abide by the bylaws for due process. See Miss. Code Ann. § 73-25-93.

¶29.    The record reflects that the chancery court exceeded its limited scope of review in this

case by determining that the record supports the findings.   There were no findings to such a

judgment.    The chancery court cannot weigh the sufficiency of the evidence.    Judicial review

is clearly limited to whether the Hospital complied with the procedural due process

requirements in its bylaws.

¶30.    Finally, there are a number of troublesome issues raised by Dr. Warnick on appeal in

regard to other alleged due process requirements that the majority has elected not to address.

¶31.    For the above reasons, I must respectfully dissent from the majority opinion.   I would

reverse and render the judgment of the Chancery Court of Adams County.




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