Chalasani v. Neuman

Titone, J.

dissents and votes to affirm the order, with the following memorandum: In my view, plaintiff cannot maintain an action for injunctive relief *807on the basis of a generalized claim that the defendant violated unspecified provisions of its medical staff by-laws. At common law, a private proprietary hospital had the unfettered right to bar a physician for any or no reason (Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736; Leider v Beth Israel Hosp. Assn., 11 NY2d 205). That rule has been tempered by statute (Public Health Law, § 2801-b). While the legislation precludes arbitrary action, it only requires that reasons be given and that “those reasons must relate to legitimate concerns of the hospital” (Fried v Straussman, 41 NY2d 376, 380). The Legislature did not intend to “[strip] the administrator] of a hospital * * * of discretion to make even the most basic personnel decisions” (Fried v Straussman, supra, p 383). Nor can I accept the notion that the staff by-laws constitute an implied contract which limits the hospital’s right of termination (cf. Weiner v McGraw-Hill, Inc., 57 NY2d 458, 465). The complaint is barren of any citation of any provisions in the by-laws which provide for such a limitation and plaintiff failed to submit a copy of the by-laws themselves in opposition to the motion, inter alia, to dismiss. This, in and of itself, warrants an affirmance (Murphy v American Home Prods. Corp., 58 NY2d 293, 305). But there is even a more fundamental flaw in such a thesis. Injunctive relief is obtainable only by following the avenue of complaint to the Public Health Council after which the “only basis for judicial review is injunctive relief under section 2801-c” of the Public Health Law (Matter of Moss v Albany Med. Center Hosp., 61 AD2d 545, 548 [Greenblott, J.]; see Matter of Cohoes Mem. Hosp. v Department of Health, 48 NY2d 583, 588; Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736, supra; Fried v Straussman, 41 NY2d 376, 379, supra). Judicial review is then limited to “a determination whether the purported grounds [for termination] were reasonably related to the institutional concerns set forth in the statute, whether they were based on the apparent facts as reasonably perceived by the administrators, and whether they were assigned in good faith” (Fried v Straussman, supra, p 383; see, also, Matter of Cohoes Mem. Hosp. v Department of Health, supra, p 591).1 On the record before us, there can be little doubt that the failure to obtain malpractice coverage, one of the grounds for the termination, is reasonably related to institutional concerns, was based upon objective evidence and, as a matter of law, cannot constitute bad faith. Indeed, the complaint does not assert otherwise. It is merely claimed that unspecified by-law provisions were not followed. But, procedural irregularities are insufficient to establish bad faith and, given the limited review provided, the courts could not set the hospital’s determination aside (Matter of Moss v Albany Med. Center Hosp., 61 AD2d 545, 549, supra). Simply put, a violation of such by-law provisions, in and of itself, is not a warrant for judicial interference (Yates v Cohoes Mem. Hosp., 64 AD2d 726, app dsmd 45 NY2d 836). Moreover the allegation in the complaint that the plaintiff was denied “due process of law” by the defendant’s actions is frivolous. No constitutional right is implicated; any rights that plaintiff possesses are strictly statutory (Fried v Straussman, 41 NY2d 376, 379, supra; Mulvihill v Butterfield Mem. Hosp., 329 F Supp 1020). Both the First and Third Departments have held that courts may not operate as a board of overseers with respect to the exclusion of physicians from private hospital staffs (see Yates v Cohoes Mem. Hosp., 64 AD2d 726, supra; Halberstadt v Kissane, 31 AD2d 568; Matter of Shiffman v Manhattan Eye, Ear & Throat Hosp., 35 AD2d 709). I *808would follow this basic rule (27 NY Jur, Hospitals and Asylums, § 11; Ann., 37 ALR3d 645, 659) and affirm the dismissal of the complaint.2

. Parenthetically, if the new cause of action adopted by the majority could exist independently of the statute, injunctive relief still would not lie. The cause of action would be for breach of contract and the availability of monetary damages would constitute an adequate remedy at law, precluding equitable relief.

. I recognize that a few jurisdictions have permitted judicial review of private hospital staffing determinations, but find these decisions which, represent a minority review (see comment, Michigan Court Joins Majority in Denying Judicial Review of Staffing Decisions of Private Hospitals, 6 Am J of Trial Advocacy 339), to be unpersuasive. In any event they furnish no basis for a departure from settled New York law (cf. Murphy v American Home Prods. Corp., 58 NY2d 293).