dissenting. The declaratory judgment by the court of common pleas in this case in favor of both appellee hospitals upholding their bylaws and policies respecting the limitation of the use of radiological and laboratory services as applied to chiropractors, and its affirmance by the court of appeals, are both unreasonable and unlawful, and should be reversed, with final judgment entered granting declaratory judgment in favor of the appellant, Fred Southard, a doctor of chiropractic. The declaratory relief should invalidate the appellees’ bylaws pertaining to the exclusion of chiropractors from the use of hospital diagnostic services and facilities.
Appellant is a duly qualified and licensed chiropractor. When he referred patients to appellees for diagnostic laboratory and X-ray testing they refused to accept the patients. The appellees’ position rested entirely on the basis that their bylaws made no provision for inclusion of doctors of chiropractic for any kind of hospital privileges.
R.C. 3701.351, read in pari materia with R.C. 4734.09, prohibits hospitals from denying patients access to diagnostic laboratory testing and X-ray procedures solely because the diagnostic tests were required by a doctor of chiropractic. In R.C. 4734.09 the General Assembly has recognized that doctors of chiropractic are qualified to examine, diagnose, and assume responsibility for the care of patients, as follows:
“* * * The chiropractor is authorized to examine, diagnose, and assume responsibility for the care of patients.” (Emphasis added.)
R.C. 3701.351, which provides that hospitals may not discriminate against a “qualified person” in considering an application for staff membership or professional privileges within the scope of the applicant’s licensure solely on the basis of the applicant’s class of certification, prohibits hospitals from denying patients of doctors of chiropractic access to outpatient diagnostic services merely because such patients are referred by a doctor of chiropractic. This is clearly evident by a careful analysis of the relevant language of R.C. 3701.351(B) which provides:
“The governing body of any hospital, in considering and acting upon applications for staff membership or professional privileges within the scope of the applicants’ respective licensures, shall not discriminate against a qualified person solely on the basis of whether such person is certified to practice *268medicine or osteopathic medicine, or podiatry, or dentistry.” (Emphasis added.)
Appellant, as a doctor of chiropractic, is a “qualified person” within the meaning of R.C. 3701.351. Notwithstanding the differences in philosophy of treatment and educational background between doctors of chiropractic and other doctors, qualified doctors of chiropractic may not be discriminated against solely because R.C. 3701.351 does not expressly include them within its terms or because they are of a different class of qualified doctors. Stribling v. Jolley (1952), 241 Mo. App. 1123, 253 S.W. 2d 519; Fritz v. Huntington Hospital (1976), 39 N.Y. 2d 339, 348 N.E. 2d 547.
A hospital has a fiduciary duty to the public that must be exercised reasonably and for the public good. Bylaws and actions of hospitals that preclude doctors of chiropractic, as a class, from referring patients to hospitals for diagnostic testing on an outpatient basis, as in the case here, are arbitrary, discriminatory, unreasonable and capricious, so as to render such actions and the bylaws invalid. In such a case a court may substitute its judgment for the hospital’s and invalidate such hospital bylaws and actions. Davidson v. Youngstown Hospital Assn. (1969), 19 Ohio App. 2d 246 [48 O.O.2d 371]; Griesman v. Newcomb Hospital (1963), 40 N.J. 389, 192 A. 2d 817; Silver v. Castle Memorial Hospital (1972), 53 Hawaii 475, 497 P. 2d 564.
Since the General Assembly in R.C. 4734.09 has pronounced that doctors of chiropractic, licensed under Ohio law, are qualified to diagnose patients, hospital actions and bylaws that preclude doctors of chiropractic access to outpatient diagnostic services, not because of individual incompetence to diagnose, but solely because the doctor is a doctor of chiropractic, are arbitrary and unreasonable. See Porter Memorial Hospital v. Harvey (1972), 151 Ind. App. 299, 279 N.E. 2d 583.
The principal Ohio case upon which the court of appeals relied in reaching its clearly erroneous decision is Khan v. Suburban Community Hospital (1976), 45 Ohio St. 2d 39, at 44-45 [74 O.O.2d 56]. That case is clearly not applicable to the facts here. In Khan this court held that the action of trustees of a private hospital in refusing to appoint a physician to its medical or surgical staff is not subject to judicial review, that the action of the hospital trustees is final, and that the court may not substitute its judgment for that of the hospital trustees.3 Khan is a sound holding as applied to the facts *269therein, but it concerns only individual competence of a physician and his claimed right to be appointed to a private hospital medical or surgical staff. In the case at bar there is no issue pertaining to the individual competence of Dr. Southard, nor was there any effort on his part to be appointed to a hospital medical staff. Applying the holding in Khan to this case is like comparing apples with oranges.
R.C. 3701.351, construed and applied as the lower courts have done here, violates the rights of a doctor of chiropractic to equal protection and due process under the Ohio Constitution and the United States Constitution when that statute is interpreted to exclude doctors of chiropractic as a class from those qualified persons having a clear right to be protected from discrimination under R.C. 3701.351 as it relates to use of diagnostic services of a hospital. Section 2, Article I, Ohio Constitution; Section 1, Fourteenth Amendment to the United States Constitution. In order for legislative classification not to violate the constitutional rights to equal protection of the laws, reasonable grounds and a rational basis must exist for making a distinction between those within and those outside a disputed class. Beatty v. Akron City Hospital (1981), 67 Ohio St. 2d 483, 493 [21 O.O.3d 302]; State v. Buckley (1968), 16 Ohio St. 2d 128; Carrington v. Rash (1965), 380 U.S. 89. Cf. Shaw v. Hospital Auth. (C.A.5, 1975), 507 F. 2d 625, and following remand (1980), 614 F. 2d 946. In Shaw, supra, a podiatrist was seeking staff privileges at a county hospital where the hospital bylaws authorized that staff membership of the hospital be given only to full practice physicians and licensed dentists.
Sweeney, J., concurs in the foregoing dissenting opinion.The obvious inapplicability of our holding in Kahn v. Suburban Community Hospital (1976), 45 Ohio St. 2d 39 [74 O.O.2d 56], to the facts in the instant case is apparent from our opinion in Kahn, at 44-45, as follows:
“The great weight of case authority in the United States is that a board of trustees of a private hospital has the authority to appoint and remove members of the medical staff of the hospital and to exclude members of the medical profession in its discretion from practicing in the hospital. And, the action of hospital trustees in refusing to appoint a physician to its medical or surgical staff, or declining to renew an appointment that has expired or changing the requirements for staff privileges, is not subject to judicial review. The action of the board of trustees is final in such matters. A court may not substitute its judgment for that of the hospital trustees’ judgment. * * *”
Appointment of a physician to a hospital medical staff, requiring evaluation of his profes*269sional qualifications and experience, requires medical expertise of his peers and for this reason such appointment is primarily a medical, not a legal, problem, and should not be subject to judicial review. Khan, supra. However, excluding an entire class of qualified, licensed health providers, such as chiropractors, from utilizing hospital diagnostic services within their field of expertise, is primarily a legal problem, not a medical problem, and should be subject to judicial review.