DR. JOE BRYANT,               )
                              )
    Plaintiff/Appellant,      )       Wilson Chancery
                              )       No. 96332
VS.                           )
                              )
TENET, INC. (NATIONAL MEDICAL )
ENTERPRISES) d/b/a UNIVERSITY )       Appeal No.
MEDICAL CENTER,               )       01A01-9703-CH-00132
                              )
    Defendant/Appellee.       )
                                                        FILED
             IN THE COURT OF APPEALS OF TENNESSEE
                                               November 25, 1997
                  MIDDLE SECTION AT NASHVILLE
                                             Cecil W. Crowson
        APPEAL FROM CHANCERY COURT OF WILSON COUNTY
                                           Appellate Court Clerk
                   AT LEBANON, TENNESSEE

                  HONORABLE C. K. SMITH, CHANCELLOR


Mr. Henry Clay Barry
106 S. College Street
Lebanon, Tennessee 37087
ATTORNEY FOR PLAINTIFF/APPELLANT


Mr. William C. Moody
95 White Bridge Road
Suite 509, Cavalier Bldg.
Nashville, Tennessee 37205-1427
ATTORNEY FOR DEFENDANT/APPELLEE




                           D I S S E N T.


                            HENRY F. TODD
                            PRESIDING JUDGE, MIDDLE SECTION
DR. JOE BRYANT,               )
                              )
    Plaintiff/Appellant,      )                       Wilson Chancery
                              )                       No. 96332
VS.                           )
                              )
TENET, INC. (NATIONAL MEDICAL )
ENTERPRISES) d/b/a UNIVERSITY )                       Appeal No.
MEDICAL CENTER,               )                       01A01-9703-CH-00132
                              )
    Defendant/Appellee.       )




                                     DISSENT


       The only difference of opinion in this Court is whether the information in the record is

sufficient to justify the result reached by the majority. The original opinion, which was not

accepted by the majority, is now filed as a dissent to demonstrate the necessity for a remand for

further information.



       The defendant, Tenet, Inc., d/b/a University Medical Center, has appealed from a non jury

judgment of the Trial Court regarding the practice of medicine by the plaintiff, Dr. Joe Bryant,

in the defendant’s hospital.


        The judgment of the Trial Court states:

                          This case having come on to be heard on September
                12, 1996, upon the plaintiff’s complaint for injunctive
                relief, the Court having considered the pleadings, statements
                of counsel, stipulations, exhibits and testimony of witnesses
                and it appearing to the Court that a permanent injunction
                should be issued prohibiting the defendant from conducting
                any further disciplinary action against the plaintiff as a
                result of the circumstances giving rise to this suit until the
                defendant has provided the plaintiff with a written notice of
                the complaints being investigated ten days prior to an
                Executive Committee meeting held to investigate such
                complaints at which the plaintiff shall have an attorney
                present for consultation and advice only, it appearing to the
                Court that the defendant’s by-laws have deprived the
                plaintiff of his rights guaranteed by Section VIII, Article I,
                of the Tennessee Constitution, and the plaintiff’s right to
                due process under the by-laws themselves.

                                            -2-
                      IT IS HEREBY DECREED, that the defendant is
              enjoined from conducting any further disciplinary actions
              pursuant to its by-laws against the plaintiff as a result of the
              circumstances from which this suit arises until such time as
              the defendant has provided the plaintiff with written notice
              of the complaints it is investigating and the defendant
              schedules a new Executive Committee investigation more
              than ten days thereafter at which the plaintiff shall have the
              right to have an attorney present for his own consultation
              and advice.

       In this Court, the defendant states the issues as follows:

                      1.      When a medical staff committee of a private
              hospital takes action, pursuant to its bylaws, that limits a
              staff member’s privileges, is that staff member entitled to
              procedural due process at each step of the proceedings by
              Article 1, § 8 of the Constitution of the State of Tennessee?

                      2.     If so, do the provisions of the defendant’s
              bylaws, for taking action which limits the privileges of staff
              members, comply with Article 1, § 8 of the Constitution of
              the State of Tennessee?

                      3.      Do the defendant’s bylaws guarantee the
              plaintiff procedural due process, as the term is understood in
              a legal context, at the Executive Committee Stage?

                     4.      Is injunctive relief appropriate at this stage of
              the proceeding or must the plaintiff exhaust all of his
              administrative remedies?


       The plaintiff states the issues as follows:

                      1.      Is a doctor entitled to “Due Process”, or
              fairness and justice, before his privileges or liberties may be
              adversely affected by the Defendant or it’s Executive
              Committee, under the fact of this case?

                       2.     Do these by-laws, either upon their face or by
               their operation in this case, violate Due Process, which the
               same guarantee?


       The following facts are essentially undisputed:



       Dr. Bryant has practiced as a general surgeon at University Medical Center for many

years. University Medical Center, (hereafter, UMC) is a private hospital owned by Tenet, Inc.

Some time in early June 1996, he performed a PEG procedure on a comatose patient who was



                                              -3-
on a morphine drip. During this procedure, he apparently had a dispute with nurses in the

operating room about his decision not to anesthetize the patient during the procedure.

Following the procedure, one or more nurses filed a formal complaint with UMC’s

administrator and reported the incident on Tenet’s patient abuse hotline.



       At UMC there is a “chief of staff”, who is presumably selected by the physicians

practicing in the hospital. Whether he is also an official of the hospital itself does not appear

from the record.



       One or two weeks after the above described incident, the “chief of staff” discussed the

incident with Dr. Bryant and asked him to attend a meeting of “the executive committee” to

review the incident. The record does not disclose whether the “executive committee” of the

medical staff is a part of the management of the hospital, itself. Dr. Bryant declined to attend

stating “unless I had a written letter from someone, I wouldn’t be there.” Several days later, Dr.

Bryant received written notice of the executive committee meeting. He also received notice of

the number of the patient’s chart and was even given a copy of the chart which he showed to

other physicians before the hearing. Apparently he was not given the incident report that had

been filed by one or more of the operating room nurses.



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

presenting his response to the nurses’ complaints and accusing the nurses of ineffectiveness in

the operating room. On the day of the executive committee’s meeting, Dr. Bryant insisted that

the committee permit his lawyer to attend the meeting. After the committee denied his request,

Dr. Bryant refused to attend the meeting. The record does not indicate what, if any, action was

taken by the committee after Dr. Bryant’s departure.



       Shortly thereafter, Dr. Bryant filed suit this against Tenet seeking to enjoin the hospital

“from proceeding against...[him] under the said by-laws.” It is not clear whether the by-laws



                                              -4-
were those of the medical staff or of the management of the hospital. He asserted that the

hospital’s by-laws permitted a “star-chamber type proceeding” and that the by-laws

“unconstitutionally deprive the Plaintiff of his constitutional right to due process of the law.”

At the hearing on the application for permanent injunction, the trial court granted Dr. Bryant’s

oral motion to amend to add a breach of contract claim to his complaint. The trial court

determined that the hospital procedures did not violate Dr. Bryant’s federal constitutional rights

but that they did violate Dr. Bryant’s state constitutional and contractual rights. Accordingly,

the trial court entered an order enjoining UMC from conducting any further disciplinary

proceedings against Dr. Bryant until it (1) provides him with written notice of the complaints

against him, (2) commences a new executive committee investigation, and (3) allows Dr. Bryant

to have an attorney “present for his own consultation and advice” during all stages of the

proceedings.



       The injunction granted by the Trial Court appears to be intended to prevent the hospital

from curtailing or terminating Dr. Bryant’s use of the facilities of the hospital, but it does not

appear to affect the actions of the medical staff or its committee who are not parties to the suit.



       The record does not include a complete set of the by-laws of the medical staff. The

record does contain a portion of the by-laws of the staff governing “corrective actions” and

“hearing and appellate review procedures.”



        T.C.A., Title 63, Chapter 6 is entitled, “Medicine and Surgery.” Part 1 of Chapter 6

creates a Board of Medical Examiners. Part 2 of Chapter 6 is entitled “General Provisions,”

Section 63-6-219 reads as follows:

                        (a)(1) In conjunction with the applicable policies of
                the Health Care Quality Improvement Act of 1986 (42
                U.S.C. §§ 11101-11152), it is the stated policy of Tennessee
                to encourage committees made up of Tennessee’s licensed
                physicians to candidly, conscientiously, and objectively
                evaluate and review their peers’ professional conduct,
                competence, and ability to practice medicine. Tennessee
                further recognizes that confidentiality is essential both to

                                             -5-
effective functioning of these peer review committees and to
continued improvements in the care and treatment of
patients.

         (2)     As incentive for the medical profession to
undertake professional review, including the review of health
care costs, peer review committees must be protected from
liability for their good-faith efforts. To this end, peer review
committees should be granted certain immunities relating to
their actions undertaken as part of their responsibility to
review, discipline, and educate the profession. In instances
of peer review committees examining the appropriateness of
physicians’ fees, this immunity must also extend to restraint
of trade claims under title 47, chapter 25. (Emphasis
supplied)

         (b)     As used in this section, “medical review
committee” or “peer review committee” means any
committee of a state or local professional association or
society, including impaired physician peer review
committees, programs, malpractice support groups and their
staff personnel, or a committee of any licensed health care
institution, or the medical staff thereof, or any committee of
a medical care foundation or health maintenance
organization, preferred provider organization, individual
practice association or similar entity, the function of which,
or one (1) of the functions of which, is to evaluate and
improve the quality of health care rendered by providers of
health care service to provide intervention, support, or
rehabilitative referrals or services, or to determine that health
care services rendered were professionally indicated, or were
performed in compliance with the applicable standard of
care, or that the professional health care services in the area
and includes a committee functioning as a utilization review
committee under the provisions of Public Law 89-97 (42
U.S.C. §§ 1395-1395pp) (Medicare law), or as a utilization
and Review Improvement Act of 1982, Public Law 97-248,
§§ 141-150, or a similar committee or a committee of similar
purpose, to evaluate or review the diagnosis or treatment or
the performance or rendition of medical or hospital services
which are performed under public medical programs of
either state of federal design.

        (c)(1) All state and local professional associations
and societies and other organizations, institutions,
foundations, entities and associated committees as identified
in subsection (b), physicians, surgeons, registered nurses,
hospital administrators and employees, members of boards
of directors or trustees of any publicly supported or privately
supported hospital or other such provider of health care, any
person acting as a staff member of a medical review
committee, any person under a contract or other formal
agreement with a medical review committee, any person who
participates with or assists a medical review committee with
respect to its functions, or any other individual appointed to
any committee, as such term is described in subsection (b),

                              -6-
is immune from liability to any patient, individual or
organization for furnishing information, data, reports or
records to any such committee or for damages resulting from
any decision, opinions, actions and proceedings rendered,
entered or acted upon by such committees undertaken or
performed within the scope or function of the duties of such
committees, if made or taken in good faith and without
malice and on the basis of facts reasonably known or
reasonably believed to exist. (Emphasis supplied)

        (2)    Notwithstanding the provisions of subdivision
(c)(1), any person providing information, whether as a
witness or otherwise, to a medical review committee
regarding the competence or professional conduct of a
physician is immune from liability to any person, unless such
information is false and the person providing it had actual
knowledge of such falsity.

        (3)    A member of a medical review committee, or
person reporting information to a medical review committee,
is presumed to have acted in good faith and without malice.
Any person alleging lack of good faith has the burden of
proving bad faith and malice.

         (d)     All information, interviews, incident or other
reports, statements, memoranda or other data furnished to
any committee as defined in this section, and any findings,
conclusions or recommendations resulting from the
proceedings of such committee are declared to be privileged.
All such information, in any form whatsoever, so furnished
to, or generated by, a medical review committee shall be
privileged communication subject to the laws pertaining to
the attorney-client privilege. The records and proceedings of
any such committees are confidential and shall be used by
such committee, and the members thereof only in the
exercise of the proper functions of the committee, and shall
not be public records nor be available for court subpoena or
for discovery proceedings. One (1) proper function of such
committees shall include advocacy for physicians before
other medical peer review committees, peer review
organizations, health care entities, private and governmental
insurance carriers, national or local accreditation bodies, and
the state board of medical examiners of this or any other
state. The disclosure of confidential, privileged peer review
committee information to such entities during advocacy, or
as a report to the board of medical examiners under § 63-6-
214(d), or to the affected physician under review does not
constitute either a waiver of confidentiality or privilege.
Nothing contained herein applies to records made in the
regular course of business by a hospital or other provider of
health care and information, documents or records otherwise
available from original sources are not to be construed as
immune from discovery or use in any civil proceedings
merely because they were presented during proceedings of
such committee. (Emphasis supplied)



                               -7-
          Article 1 § 8 of the Constitution of Tennessee provides:

                         No man to be disturbed but by law. - That no man
                 shall be taken or imprisoned, or disseized of his freehold,
                 liberties or privileges, or outlawed, or exiled, or in any
                 manner destroyed or deprived of his life, liberty or property,
                 but by the judgment of his peers or the law of the land.

          The right to work or to contract in regard to work is a property right which is protected

by the constitutional provision. Bryan v. International Alliance, 43 Tenn. App. 180, 306

S.W.2d 64 (1957).



          The right to contract is subject to curtailment, limitation and destruction by the

legislature where such is done pursuant to “the law of the land.” Daugherty v. State, 216 Tenn.

666, 393 S.W.2d 739, cert. denied, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671 (1966).



          The “due process” right afforded by the Tennessee Constitution includes the right to do

a lawful business. Lyle v. Amalgamated Meat Cutters, etc., 174 Tenn. 222, 124 S.W.2d 701

(1939).



          Both the words “liberty” and “property” include the right to make contracts, and

contracts are entitled to the same protection as property. State, ex rel., Hamby v. Cummings,

166 Tenn. 460, 63 S.W.2d 515 (1933).



          However, the right to contract is subject to legislative control, and is subject to

curtailment, limitation and destruction by “the law of the land”. Daugherty v. State, 216 Tenn.

666, 393 S.W.2d 739, cert. denied 384 U.S. 435, 865 Ct. 1601, 16 L. Ed.2d 671 (1966).


          State licensing regulations require hospitals to enact by-laws containing “fair hearing

procedures” concerning the granting, suspension, and removal of medical staff appointments,

reappointments, and/or delineation of privileges.” Lewisburg Community Hosp. v. Alfredson,

Tenn. 1992, 805 S.W.2d 756, 759.




                                                -8-
       The portion of the by-laws exhibited to this record appear to establish a three-tier

process that is intended to incorporate the peer review process endorsed by the General

Assembly in Tenn. Code Ann. § 63-6-219 (1997). The process is triggered by the filing of a

“request for corrective action.” The first step of the process is an informal “investigation” by

the executive committee. The by-laws state specifically that this step is not a “hearing” and

permit the executive committee to take a broad range of actions. The by-laws are silent about

the role of lawyers during the first phase; however, it is uncontradicted that lawyers are not

permitted to be present at any of the first stage meetings during the investigative process.



        Any person dissatisfied with the executive committee’s recommendations may appeal.

The second stage of the proceeding is much more formal than the first and involves a hearing

before a medical review committee specifically chosen to hear the appeal. The by-laws require

a written notice. They also require the executive committee to provide the physician with

“notice of the acts or omissions with which the affected practitioner is charged or a list of the

chart numbers under question, if any, or the reasons for the action or recommendation.” The

parties are permitted to use “representatives,” who may be lawyers.



        The hearing procedure is quite formal. The hospital must present its case first, the

physician second, and both parties are permitted to present rebuttal proof. If the physician is

the appealing party, he or she must prove by clear and convincing evidence that the action or

the recommendation of the executive committee was arbitrary, unreasonable, or not supported

by substantial evidence.



        The third and final step of the process is an appeal to the governing body of the hospital.

This review is based on the record of the prior proceedings, and the grounds for review include

(1) the failure of the earlier proceedings to comply with the by-laws, (2) the failure to afford due

process or a fair hearing, (3) that the recommendation was arbitrary, unreasonable, or

capricious, (4) that the medical review committee’s decision was contrary to the weight of the



                                               -9-
evidence, or (5) that any by-law relied on by the medical review committee lacked substantive

rationality.



        Dr. Bryant’s first issue seeks a ruling upon the right of a physician to due process in

proceedings by fellow physicians in respect to complaints made against him. The record is not

sufficiently definitive to permit a specific ruling in this respect. Three elements must be

established to enable such a ruling.



        First, does there exist a recognized group of doctors who have agreed together upon a

“peer review” procedure to improve the quality of their practice? If so, the nature of such

procedure must conform with the agreement formed by the doctors or accepted by a new arrival

upon joining the group. If this fact exists, and the results reached in the peer review procedure

are not final or binding in respect to use of hospital facilities, then it would appear that the

affected doctor has contractually waived any constitutional due process in proceedings before

the peer review committee. If, however, the results of the peer review procedure are enforceable

by exclusion from use of hospital facilities, the doctor is entitled to “due process” in the

procedure.



        A definitive ruling upon the foregoing must await an evidentiary record which discloses

the details of the controlling by-laws or agreements.



        Appellant’s second issue seeks a ruling regarding the constitutionality of           “the

defendant’s by-laws.” The record does not establish that the portion of the “by-laws” included

in the record is in fact a portion of the by-laws of the hospital, rather than of the group of

doctors who practice in the hospital. If it should be shown that the hospital has a set of by-laws

or rules, or is bound to enforce the decisions of the medical staff as to exclusion of a doctor,

then the hospital might be enjoined from enforcement of a decision the staff reached without




                                              -10-
due process. On this premise, it was not error to enjoin the hospital from enforcing the results

of a procedure until the constitutionality of the procedure has been examined and determined.



       If the hospital is not bound by the staff procedure, but conducts a de novo investigation

and determination of the right of a doctor to use its facilities, then it may appear that the

issuance of the permanent injunction was not in order.



       Appellant’s third issue requests a ruling as to whether procedural due process is

guaranteed by “defendant’s by-laws.” (Defendant is the hospital.) The record does not disclose

the hospital’s by-laws. Thus, a definitive ruling on the defendant’s third issue should await a

full disclosure of its by-laws, rules or adopted procedures.



       Appellant’s fourth, and last issue suggests that defendant be required to exhaust his

administrative remedies before seeking injunctive relief. In view of the constitutional question

involved, the seriousness of the possible damage to the affected physician, and the possible

waste of time and effort in invalid procedure, a precautionary injunction was permissible.



       Dr. Bryant’s two issues have been explored above, but a definitive ruling thereon must

await the development of a more informative record. T.C.A. § 27-3-128 provides for remand

where required to do complete justice. Such a remand is necessary in the present appeal.



       For the reasons stated, the judgment of the Trial Court should be modified to provide

that the “permanent” injunction shall be effective until further order of court, after further

hearing. The cause should be remanded to the Trial Court for further proceedings in conformity

with this opinion.

                          RESPECTFULLY SUBMITTED.


                                              ___________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION

                                             -11-
-12-
