0 d Michigan Supreme Court
r Lansing, Michigan
july 29’ 2 005 Clifford W. Taylor
Chief Justice
12 63 3 3 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J_ Maykman
Plaintiff-Appellant, Jusrices
v SC: 126333
COA: 244678
Jackson CC: 97-08135 l-CZ
W.A. FOOTE MEMORIAL HOSPITAL,
Defendant-Appellee.
/
On order of the Court, leave to appeal having been granted and the Court having
considered the briefs and oral arguments of the parties, the order of .lanuary 13, 2005
which granted leave is VACATED and leave to appeal is DENIED because the Court is
no longer persuaded the questions presented should be reviewed by this Court.
KELLY, J., dissents and states as follows:
A majority of the Court has decided that we improvidently granted leave to appeal
in this case. l disagree. At issue is a jurisprudentially significant question: whether an
osteopath may bring suit against a hospital for unlawful discrimination when the statute
barring the discrimination provides no explicit individual remedy.
The Court of Appeals issued a published decision holding that no private cause of
action exists. Because this Court now denies leave, the Court of Appeals decision will
stand as binding precedent. But the Court of Appeals analysis is flawed lt finds that the
statute contains remedies for the physician that are nonexistent
Given that the question is significant and the Court of Appeals analysis is
unsound, leave to appeal was correctly granted and this Court should address the merits
of the case.
I would hold that the Public Health Code at MCL 333.2l5l3(e) creates a private
cause of action for physicians allegedly discriminated against by a licensed hospital
because they were trained as osteopaths. Thus, l would reverse the decision of the Court
of Appeals and remand the case to that Court for consideration of plaintiffs appeal.
FACTS
The surgery department of the defendant hospital had a written policy that
required surgeons entitled to practice there to have ACGl\/lE-approvedl training and
American Board of Surgery certification The department could waive the policy on a
case-by-case basis. ACGl\/lE-approved training is available only to graduates of
allopathic schools. Plaintiff is a board-certified osteopathic surgeon.z When he applied
for staff privileges at the hospital, defendant denied his request.
Plaintiff then asked that the policy be waived, and defendant denied the request. lt
responded that plaintiffs training and experience were not reasonably equivalent to
ACGME-approved training. lt offered plaintiff the opportunity to supplement his
application with information demonstrating that his training met the standards set by the
surgery department, essentially the training of an allopathic doctor.
Plaintiff filed suit, alleging that defendant had violated the statutory requirement
that, when granting staff privileges, hospitals not discriminate against physicians on the
basis of their medical training as osteopaths. MCL 333.2l5l3(e). The trial court granted
summary disposition to the hospital and dismissed plaintiffs claim. lt found that a
hospital’s staffing decisions were not subject to judicial review. Even if courts could
review these decisions, it found, plaintiff failed to establish that he was subjected to
discriminatory treatment because he is an osteopath. lt noted that defendant regularly
awarded staff privileges to osteopathic physicians.
'l`he Court of Appeals affirmed in a published per curiam opinion. 261 l\/lich App
727 (20()4). However, it used different reasoning than the trial court and concluded that
no private cause of action exists for a violation of MCL 333.2l5l3(e). The panel
reasoned that the Public Health Code can be enforced adequately through other
provisions in article l7. MCL 333.20101 et seq. (covering facilities and agencies). As a
result, it held that plaintiff had no cause of action. 'l`hus, it did not reach the issues
adjudicated by the trial court.
THE STATUTE AND THE STANDARD OF REVIEW
The grant or denial of a motion for summary disposition is reviewed de novo. J &
J Farmer Leasing, Inc v Cz`z‘izens Ins Co of America, 472 l\/lich 353, 357 (2005).
Statutory interpretation involves questions of law that are also reviewed de novo.
1 Accreditation Council for Graduate Medical Education.
2 Osteopaths are referred to as "DOs"; allopathic doctors are referred to as "MDs."
American Alternative Ins Co, Inc v York, 470 l\/lich 28, 30 (2004).
MCL 333.2l5l3(e) is located in article l7 of the Public Health Code. lt reads:
The owner, operator, and governing body of a hospital licensed
under this article:
(e) Shall not discriminate because of race, religion, color, national
origin, age, or sex in the operation of the hospital including employment,
patient admission and care, room assignment, and professional or
nonprofessional selection and training programs, and shall not discriminate
in the selection and appointment of individuals to the physician stajj” of the
hospital or its training programs on the basis of licensure or registration or
professional education as doctors of medicine, osteopathic medicine and
surgery or podiatry. [Emphasis added.]
THE AvAiLABiLiTY oF PRivATE CAUsEs oF Ac'rioN
ln reviewing questions of statutory construction, the Court's primary purpose is to
discern and give effect to the Legislature’s intent. People v Morey, 461 Mich 325, 329-
330 (l999). When interpreting a statute to determine whether an implied private cause of
action exists to remedy its violation, we have developed rules of construction to assist in
discerning this intent. Those rules were summarized in Pompey v Gen Motors Corp,3
where we stated that
[t]he general rule, in which Michigan is aligned with a strong majority of
jurisdictions, is that where a new right is created or a new duty is imposed
by statute, the remedy provided for enforcement of that right by the statute
for its violation and nonperformance is exclusive
lmportantly, the Pompey Court summarized the longstanding exception to this
"general rule":
There are two important qualifications to this rule of statutory
construction: [The first is that in] the absence of a pre-existent common-
law remedy, the statutory remedy is not deemed exclusive if such remedy is
plainly inadequate . . . . [Id. at 553 n 14 (citations omitted).]
3 385 l\/lich 537, 552 (1971).
Thus, in determining whether MCL 333.2l5l3(e) creates a private cause of action,
two questions are presented. First, it must be determined whether the statute creates a
new right in a particular class of persons. lf that question is answered in the affirmative,
the court must then address the second question whether the statutory remedy is adequate
for the enforcement of that right or duty.
THE PRivArE RIGHT IMPLICIT iN MCL 333.21513(@)
This Court has long held that, where the Legislature intends to protect a particular
class, an individual member of that class may pursue an action asserting a violation.
Beginning in 1890 with Ferguson v Gies," Michigan has consistently recognized that
"whenever a particular equal protection right is recognized, whether by constitution,
statute, or common law, then fused to that right is the right to pursue judicial relief."
Heurtebise v Reliable Business Computers, Inc, 452 l\/lich 4()5, 422-423 (1996) (opinion
of Cavanagh, .l.) ln Bolden v Grand Rapids Operating Corp,§ we articulated the already
longstanding rule that "‘where a statute requires an act to be done or abstained from by
one person for the benefit of another, an action lies in favor of the latter for failure to
observe the requirements of the statute."’ (Citation omitted.)
With this time-honored rule in mind, l would address whether the Legislature
intended MCL 333.2l5l3(e) to protect only the public in general, or also to protect
individual physicians from discrimination. lf only the general public is protected, no
private right is created in plaintiff, and he could have no private right of action.
l'lowever, if individual physicians are specifically protected, plaintiff has a private right
to be free from the proscribed discrimination and is entitled to some means of upholding
that right. As the Bolden Court noted:
"lt is the general rule that a civil action is maintainable where the
person complaining is of a class entitled to take advantage of the law, is a
sufferer from the disobedience, is not himself a partaker in the wrong of
which he complains, or is not otherwise precluded by the principles of the
common law from his proper standing in court." [Bolden, at 327 (emphasis
added; citation omitted).]
The Public Health Code as a whole is directed at protecting the general public.
However, it is clear that the provision in question prohibits certain acts directed against
particular individuals and classes of individuals. Unlike other provisions of the code,
4 s2 mich 353 (1390).
5 239 l\/lich 318, 326 (1927).
MCL 333.2l5l3(e) speaks specifically in terms of individual physicians, barring
discrimination in "the selection and appointment of individuals to the physician
staff . . . ." (Emphasis added.)
ln addition, under the doctrine of noscitur a sociis, "‘a word or phrase is given
meaning by its context or setting."’ Koontz v Ameritech Services, Inc, 466 Mich 3()4, 3l8
(2002) (citation omitted). ln general, "words and clauses will not be divorced from those
which precede and those which follow." Sanchick v State Bd of Optometrjy, 342 l\/lich
555, 559 (1955). lt is significant that the ban on discrimination against osteopaths is set
forth in the very sentence that contains the ban on discrimination based on traditionally
protected characteristics.
Hence, the Legislature states that hospitals are not to engage in "traditiona " forms
of discrimination that are based on race, religion, color, national origin, age, or sex. ln
the same sentence it also states that individual osteopathic physicians are to be free from
professional discrimination by hospitals that is based on their training as osteopaths.
Although MCL 333.2l5l3(e) may not be viewed as a traditional civil rights act,
that is of no particular moment. By its clear language it is designed, inter alia, to protect
specific individuals from discrimination. As such, l have no trouble concluding that
MCL 333.2l5l3(e) constitutes an antidiscrimination provision. lt creates the right of
individual physicians to be free from discrimination and the concomitant duty on the part
of hospitals not to discriminate against physicians because they are osteopaths.
Thus, plaintiff has a private right to be free from discrimination that is based on
his osteopathic training. lt is the same right that female, Afiican-American, or Asian
doctors have who seek but are denied privileges because of their race, gender, or national
origin. The statute requires hospitals to treat doctors seeking privileges equally
regardless of race, gender, national origin, or status as osteopaths.
ln writing the statute in question, the Legislature presumably intended to end
discriminatory hospital staffing decisions against physicians based on their education.
The Legislature’s focus on the individual shows that the public benefit of increased access
to physicians with various kinds of training was a secondary consideration. Foremost
was the Legislature’s intention to protect osteopaths as identifiable victims of
discrimination.
By placing the protection in the Public Health Code, the Legislature signaled that
it intended to shield osteopaths from discrimination as osteopaths in the limited context
of hospital staffing decisions. lt was not the Legislature’s intent to prevent members of
the general public from discriminating against osteopaths because they are osteopaths in
housing, enteitainment, or other venues.
lt was not the Legislature's intent to treat the protected category at issue in this
case in the same manner as more traditional protected categories. Therefore, there is
utterly nothing inappropriate about the Legislature’s decision to insert a more limited
civil rights protection for osteopaths in the Public Health Code.
Likewise, in MCL 333.2l5 l3(e), the Legislature has not prohibited a hospital from
discriminating against an osteopath, as an osteopath, when assigning him or her to a
hospital room as a patient By contrast, the statute protects against discrimination in
hospital room assignments that is based on protected characteristics such as race and
gender. MCL 333.2l5l3(e). Thus, it is logical that the limited protection for osteopaths
from discrimination in hospital staffing decisions is written as it is and located in the
Public Health Code rather than the Civil Rights Act. The former is specific, while the
latter is comprehensive.
THE LACK OF A PERSONAL REMEDY lN MCL 333 .2 l 5 13
The Public Health Code is complex. The requirements placed on medical
facilities in article 17 alone are numerous. For example, this article requires medical
facilities to inform the families of patients with Alzheimer's disease about the facility's
philosophy, its staff training, and the type of activities provided. MCL 333.20178. lt
also requires that a facility possess the technical, diagnostic, and treatment services and
equipment necessary to ensure safe health care. l\/lCL 333.20141. l\/lost provisions of the
code are directed at protecting the public as a whole by requiring that medical facilities
and agencies maintain safe policies, practices, and premises.
The particular section of the code of concern here does not contain an express
penalty or remedy for noncompliance. The Court of Appeals pointed to other parts of
article 17 that contain various penalties for violations of MCL 333.21513(€). lt held that
such penalties constitute an adequate means by which to enforce the protections in the
statute.
However, under prevailing case law, the remedies available must make the
individual whole. The penalties in other parts of article l7 are not "remedies" designed
or adequate to make Dr. Fisher whole. None of them is available of right to an individual
victim of discrimination. They are of little value to the individual osteopath who has
suffered economic loss or damage to his or her reputation through conduct of the kind
specifically prohibited by MCL 333.21513(€).
Moreover, merely because penalties are available to the state does not mean that
the state will avail itself of them. As plaintiff argues, to suggest that the administrative
authorities will revoke the license of the only hospital serving a community because one
employee discriminated against a single individual is absurd.
Nor is it likely that the Legislature expected discrimination against osteopaths to
be punished criminally. And injunctions are only useful against threatened future harm,
not discrete acts of discrimination that have already occurred. Significantly, none of the
"remedies" noted by the Court of Appeals requires a hospital that has discriminated
against a person protected by l\/lCL 333.2l5l3(e) to provide redress for the individual
illegally discriminated against.6
With that in mind, l note that, in Bolden, this Court observed:
"The true rule is said to be that the question should be determined by
a construction of the provisions of the particular statute, and according to
whether it appears that the duty imposed is merely for the benefit of the
public, and the fine or penalty a means of enforcing his duty and punishing
a breach thereof, or whether the duty imposed is also for the benefit of
particular individuals or classes of individuals. lf the case falls within the
first class the public remedy by fine or penalty is exclusive, but if the case
falls within the second class a private action may be maintained;
particularly where the injured party is not entitled, or not exclusively
entitled, to the penalty imposed.” [Bolden, supra at 327, quoting l CJ at
957).]
Here, the injured party, the osteopath allegedly unlawfully discriminated against,
is not entitled, let alone exclusively entitled, to the penalty imposed, which is the
administrative fine. As noted in the preceding paragraph, the only remedy likely actually
to be imposed is such an administrative fine. lt is the state, not the osteopath, that is
entitled to the benefit of that "remedy."
Consequently, it is far-fetched to describe the penalties cited by the Court of
Appeals as "remedies." Although stated in terms of the adequacy of the remedy, the
Court of Appeals analysis actually focused on the administrative consequences to the
offending hospital. lt failed to discuss the relief that the statute affords to victims of
6 lt is likely that the only penalty that is going to be imposed for a violation of the
statute is an administrative fine. Even if the other penalties mentioned, such as license
suspension or revocation, were realistic possibilities, the Department of Community
Health has the discretion to determine how to proceed. lts only statutory duty is to
investigate. l\/ICL 333.20l76. The code simply provides a mechanism for bringing a
violation to the attention of the regulatory agency charged with overseeing the statutory
program. But that agency has the discretion to decide how, and even whether, to penalize
a facility for noncompliance. Hence, the code does not set out a means of enforcement
that vindicates the rights of the injured physician
discrimination and whether an aggrieved osteopath has realistic access to the possibility
of such relief. Because the Court of Appeals never considered whether the Legislature
provided an adequate remedy to plaintiff, it failed to properly apply the test for
determining whether a private right of action exists.
ln summary, the sanctions in the Public Health Code penalize a facility for
noncompliance; they do not address the needs of the individual physician who has
experienced discrimination. MCL 333.2l5l3(e) creates a right on the part of identifiable
victims not to be discriminated against. l-lowever, the penalty provisions found
elsewhere in the code do not provide an adequate remedy for this individualized
discrimination.
'l`he administrative mechanism is of little value to an individual physician who has
suffered irreparable economic loss and damage to reputation as a result of discriminatory
conduct that violates MCL 333.2l5l3(e). None of the remedies in the code serves, or
even purports, to make a victim of discrimination whole. Thus, l do not believe that the
"remedies" provided there are "adequate" to protect the rights of victims of unlawful
discrimination in violation of MCL 333.2l513(e). Accordingly, applying the state’s rule
of construction extending back more than a century, l would conclude that the Legislature
intended, by writing MCL 333.2l5l3(e), to allow a private cause of action.
Thus, l would hold that MCL 333.2l5l3(e) creates a private cause of action for
those who experience discrimination in hospital staffing decisions because of their status
as osteopaths.
CoNci,usioN
MCL 333.2l513(e) makes it illegal to discriminate against individual osteopathic
physicians in the granting of hospital privileges. ln enacting that provision, the
Legislature created a right in osteopaths to be free from discrimination and a duty on the
7 Courts have always carefully distinguished penalties and individual remedies
when considering whether to allow a private cause of action. Beginning with Ferguson,
the Court noted that the common law in Michigan gave a plaintiff unjustly discriminated
against a remedy that included a right of action for civil damages. Applying Bolden to
the Public Health Code, there are public remedies for a hospital’s noncompliance, e.g.,
the hospital can be fined or lose its license. But there is no remedy for the individual
physician who is harmed by the noncompliance unless it is through a private cause of
action. Bolden and Ferguson demonstrate that statutory fines, loss or suspension of a
hospital’s license, and threat of criminal prosecution are not remedies that reimburse
damages suffered by aggrieved individuals.
part of hospitals to refrain from discriminating against osteopaths.
Once the Legislature creates a statutory right for a group not to be discriminated
against, persons in that group are entitled to an adequate remedy for violations of the
right. Because the Public Health Code contains no adequate remedy to enforce the
protections contained in MCL 333.2l5l3(e), it implicitly grants the individual
discriminated against a private cause of action to obtain that protection. As an
osteopathic physician allegedly aggrieved by such illegal discrimination, Dr. Fisher is
entitled to bring an action for civil damages.
'l`hus, l would reverse the decision of the Court of Appeals Because that Court
did not address the grounds on which plaintiff appealed, l would remand the case to that
Court for further consideration of plaintiff s claims of error.
CAVANAGH, J., joins the statement of KELLY, J.
MARKMAN, J., dissents and states as follows:
l respectfully disagree with the majority that leave to appeal has been
improvidently granted in this matter. Rather, in light of the legal and judicial resources
that have been expended by the parties and by this Court, in view of the continuing
significance of the issues on which leave has been granted, and in the absence of any
changed circumstances underlying this dispute, l would now resolve this matter. justice
Kelly has submitted a thoughtful analysis concerning the substantive issues in
controversy. This Court would serve the Legislature and the legal community well to
indicate where it is in agreement or disagreement with her analysis.
d0726
l, CORBlN R. DAVlS, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
Uli»/S_ 27 .2005
Clerk