JOE BRYANT, M.D.,                        )
                                         )
      Plaintiff/Appellee,                )
                                         )   Appeal No.
                                         )   01-A-01-9703-CH-00132
VS.                                      )
                                         )   Wilson Chancery
                                         )   No. 96332
TENET, INC., (NATIONAL MEDICAL           )
ENTERPRISES) d/b/a UNIVERSITY            )
MEDICAL CENTER,                          )
                                         )
                                                           FILED
      Defendant/Appellant.               )
                                                          November 25, 1997

                     COURT OF APPEALS OF TENNESSEE Cecil W. Crowson
                       MIDDLE SECTION AT NASHVILLE Appellate Court Clerk


APPEALED FROM THE CHANCERY COURT OF WILSON COUNTY
AT LEBANON, TENNESSEE

THE HONORABLE C. K. SMITH, CHANCELLOR




HENRY CLAY BARRY
106 S. College
Lebanon, Tennessee 37087
      Attorney for Plaintiff/Appellee

WILLIAM C. MOODY
The Cavalier Building, Suite #509
95 White Bridge Road
Nashville, Tennessee 37205
      Attorney for Defendant/Appellant




                            REVERSED AND REMANDED




                                             BEN H. CANTRELL, JUDGE


CONCUR:
KOCH, J.

DISSENT:
TODD, P.J., M.S.
                                OPINION
              On the basis of the due process provision of Article I, § 8 of the

Tennessee Constitution, the Chancery Court of Wilson County enjoined Tenet, Inc.,

the owner of a Lebanon hospital, from proceeding with the investigation of a complaint

against a physician with staff privileges at the hospital. We conclude that the

procedure employed by the hospital does not violate the physician’s constitutional or

contractual rights. We, therefore, reverse the lower court’s judgment.



                                          I.

                           Facts and Procedural History



              Dr. Joe Bryant has practiced for many years as a general surgeon at the

University Medical Center (UMC) in Lebanon. UMC is a private hospital owned by

Tenet, Inc. and is the only hospital in Wilson County. All physicians working at UMC

subscribe to a set of bylaws governing the investigation of complaints. Pursuant to

state regulations the bylaws contain a fair hearing procedure governing decisions

affecting medical staff privileges. See Lewisburg Community Hospital v. Alfredson,

805 S.W.2d 756 (Tenn. 1991).



                                   a. The Bylaws



              The UMC bylaws 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 bylaws state specifically that this step is not a “hearing”

and permit the executive committee to take a broad range of actions. The bylaws are

silent about the role of lawyers during the first phase; however, it is uncontradicted

that the hospital does not permit lawyers for anyone to be present at any of the first




                                         -2-
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 bylaws require written notices at this stage. 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,” and these representatives may be lawyers if all

parties desire counsel. The hearing procedure is also 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 bylaws, (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 evidence, or (5) that any

bylaw relied on by the medical review committee lacked substantive rationality.




                  b. The Complaint and Subsequent Procedure




                                         -3-
              Dr. Bryant’s treatment of a particular patient became the subject of a

complaint to UMC’s administrator. Later, UMC’s chief of staff discussed the incident

with Dr. Bryant and asked him to attend a meeting of the hospital’s executive

committee to review the incident. He declined to attend voluntarily and later was

served with a written notice of the meeting. He also received a copy 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 meeting, Dr.

Bryant insisted that the committee permit his lawyer to attend. The committee denied

that request, and Dr. Bryant refused to attend without his lawyer. The committee met

and took some action but the decision is not included in the record.



              Shortly thereafter, Dr. Bryant filed suit against Tenet, Inc. seeking to

enjoin the hospital from proceeding under its bylaws because the proceedings violated

the due process provisions of the federal and state constitutions. He later amended

his complaint to allege that Tenet was violating his contractual rights under the bylaws.

The trial court determined that the hospital procedures did not violate the federal

constitution 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 complaint against him, (2) commences a new executive

committee investigation, and (3) allows him to have an attorney present during all

stages of the proceedings.




                                           II.

                             The Constitutional Issues




                                          -4-
              We pass over the first issue in this analysis, the issue of whether Dr.

Bryant has a property interest in his staff privileges at UMC. Although our Supreme

Court in Nashville Memorial Hospital, Inc. v. Binkley, 534 S.W.2d 318 (Tenn. 1976)

held that a doctor did not have a “right” to practice at a private hospital, for the

purposes of this appeal we assume that Dr. Bryant does have such a right.



              The next question, then, is whether Article I, § 8 of our Constitution

requires private actors to conform to the requirements of due process before taking

action with respect to that right. We conclude that it does not.



              Article I, § 8 of the Tennessee Constitution provides as follows:

              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.



              In State v. Hale, 840 S.W.2d 307, 312 (Tenn. 1992), our Supreme Court

said:

              The phrase, ‘the law of the land’, used in this section of
              our State Constitution, and the phrase, ‘due process of
              law,’ used in the Fifth Amendment and in the first section
              of the Fourteenth Amendment to the Constitution of the
              United States, are synonymous phrases meaning one and
              the same thing.

See also Burford v. State, 845 S.W.2d 204 (Tenn. 1992); State v. Smith, 834 S.W.2d

915 (Tenn. 1992). Since “state action” is necessary to invoke the protection of the

Fourteenth Amendment, Long v. State, 510 S.W.2d 83 (Tenn. Crim. App. 1974), we

conclude that the same is true with respect to Article I, § 8.



              We recognize that Article I, § 8 has been interpreted as prohibiting some

state actions that would not violate the due process provisions of the Fifth and

Fourteenth Amendments to the United States Constitution. Compare North v. Russell,

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

                                          -5-
1980). But, despite the differences in wording in the two constitutional provisions, the

fundamental protection provided by each is protection from the government. 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 applies the protection of Article I, § 8 to

actions by individuals.



              Dr. Bryant cites Lyle v. Local 452, 124 S.W.2d 701, 174 Tenn. 222

(1939) in support of his contention that Article I, § 8 does apply to private actions. In

that case, our Supreme Court found that a union’s picketing of the plaintiff’s business

was unlawful, a nuisance, and causing irreparable injury to the plaintiff’s property

rights. The court, accordingly, issued a permanent injunction to prohibit the picketing.

The court did say, “we conclude therefore that complainant, as a result of the conduct

of defendants, was deprived of his liberty and property, as guaranteed to him by the

5th and 14th Amendments to the Federal Constitution . . . and Article 1, Section 8, of

the Constitution of Tennessee.” 124 S.W.2d at 704. But, we read the quoted part of

the court’s opinion as a description of the right invaded by the defendants’ unlawful

action rather than a finding that the defendants’ action was prohibited by the

constitutional provisions cited. The court hardly needed a constitutional basis for the

injunction since the common law remedies available for the prevention of irreparable

harm were entirely adequate.



              We are convinced that Article I, Section 8 of the Tennessee Constitution

did not apply to the actions of UMC, a private corporation.



                                           III.



              Dr. Bryant amended his complaint in the court below to assert a claim

that Tenet, Inc. was violating his contractual rights under the hospital bylaws. We do

not question the fact that the bylaws are part of Dr. Bryant’s contract with the hospital.


                                          -6-
See Lewisburg Community Hosp. v. Alfredson, 805 S.W.2d at 759 (Tenn. 1991). But

the sections of the bylaws governing corrective actions do not give him the rights he

seeks (formal written notice and the right to be represented by an attorney at the

investigative 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 we have already resolved 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 the appellee.




                                         _____________________________
                                         BEN H. CANTRELL, JUDGE



CONCUR:



_______________________________
WILLIAM C. KOCH, JR., JUDGE



DISSENTING OPINION:
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION

                 IN THE COURT OF APPEALS OF TENNESSEE
                      MIDDLE SECTION AT NASHVILLE



JOE BRYANT, M.D.,                        )
                                         )
      Plaintiff/Appellee,                )
                                         )      Appeal No.
                                         )      01-A-01-9703-CH-00132
VS.                                      )
                                         )      Wilson Chancery
                                         )      No. 96332
TENET, INC., (NATIONAL MEDICAL             )
ENTERPRISES) d/b/a UNIVERSITY              )
MEDICAL CENTER,                            )      Reversed and
                                           )      Remanded
       Defendant/Appellant.                )


                                 JUDGMENT


              This cause came on to be heard upon the record on appeal from the

Chancery Court of Wilson County, briefs and argument of counsel; upon consideration

whereof, this Court is of the opinion that in the decree of the Chancellor there is

reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree of the Chancellor be reversed. The

cause is dismissed, remanded to the Chancery Court of Wilson County for any further

proceedings necessary, and for the collection of the costs accrued below.

              Costs of this appeal are taxed against Dr. Joe Bryant, for which

execution may issue if necessary.

              ENTER _______________________.




                                           _________________________________
                                           BEN H. CANTRELL, JUDGE


                                           _________________________________
                                           WILLIAM C. KOCH, JR., JUDGE




                                          -8-
