Fletcher v. Eagle River Memorial Hospital, Inc.

CANE, P.J.

(dissenting). The trial court concluded there was a sec. 1983 violation in spite of the fact that this action was never pled, suggested, argued, or proven. Under 42 U.S.C. sec. 1983, the hospital must act under color of law, and Dr. Fletcher must have been deprived of a constitutional right. See Weber v. City of Cedarburg, 129 Wis. 2d 57, 65, 384 N.W.2d 333, 338 (1986). Whether the hospital acted under color of law is a question of fact which in this case was for the trial court to decide. The evidence must demonstrate that there was a sufficiently close nexus between the governmental body and the challenged action of the hospital. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).

Appellate courts have consistently held that there must be action that is in a government's capacity, for the government's direct benefit, or at the government's behest. See Modaber v. Culpeper Mem. Hosp., 674 F.2d 1023, 1025 (4th Cir. 1982). In other words, action under color of law exists only when it can be said the governmental body is responsible for the specific conduct of which the plaintiff complains. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). "The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment." Jackson, 419 U.S. at 350.

*158Here, there was absolutely no evidence to substantiate a finding that the state of Wisconsin or any other governmental body played any part in the implementation of the procedures allowed by the board in denying hospital privileges to Dr. Fletcher, or that the government played a role in the decision to deny these privileges to Dr. Fletcher. At trial, Dr. Fletcher failed to present any evidence as to the financial structure of the hospital, its sources of funding, the degree of municipal, county, or state involvement in the hospital's daily affairs, or the degree of state regulation. In fact, from the trial court's decision, we still do not know what governmental body was allegedly involved for the hospital to be acting under color of law.

The majority opinion ignores this problem and permits the trial court's decision to rely on two statements made by the hospital in its pretrial brief. The first states: "This court has previously held in these proceedings that because of its receipt of Hill-Burton Funds and other community activities, this hospital should be regarded as a quasi-public institution. We agree with that holding." The other sentence relied upon by the trial court states: "For due process analysis, a quasi-public hospital's action is viewed as government action." This was not a stipulation or an admission of fact that it acted under color of law for the purposes of a sec. 1983 violation. See sec. 804.11, Stats., for admissions of fact.

Also, when viewed in the context of the proceedings and argument being made at the time, the hospital was merely conceding that it was not a private hospital whereby the holding in Johnson v. City of Ripon, 259 Wis. 84, 86, 47 N.W.2d 328, 330 (1951), applied. Earlier in its motion for summary judgment, the hospital moved for dismissal when it argued that it was a private hospi*159tal and, under the Johnson case, the medical staffing decisions were not subject to judicial review.

The trial court denied the motion, citing the fact that the hospital had received federal Hill-Burton Act funds and had involvement with other community activities. The trial court concluded that it was not therefore a "private" hospital. The hospital agreed, conceding that there can be judicial review of its staffing decisions. No more than that. It then proceeded to argue the merits of its staffing decision. Moreover, even if I were to accept this as an admission — which I do not — it falls far short of admitting that the hospital acted under color of law when denying Dr. Fletcher's application.

I think this is especially important when reviewing the record. The pleadings do not suggest a sec. 1983 action. The pretrial briefs do not suggest a sec. 1983 action. The trial testimony does not suggest a sec. 1983 action. There was no motion to amend the pleadings to conform to the proof even suggesting a sec. 1983 action. Finally, the post-trial briefs do not suggest a sec. 1983 action. Nor did Dr. Fletcher's argument for punitive damages rely on a sec. 1983 action.

Whether the hospital acted under color of law as part of a sec. 1983 action when denying Dr. Fletcher's application was never alleged, suggested, hinted, argued, or proven. The burden was on Dr. Fletcher to prove that the hospital's conduct in not renewing his hospital privileges was done under the color of law. The fact that the hospital received Hill-Burton Act funds and was subject to state regulation, without more, does not render the hospital's conduct as under color of law with respect to denying Dr. Fletcher's application for hospital privileges. See Briscoe v. Bock, 540 F.2d 392, 395-96 (8th Cir. 1976). For the very first time, a sec. 1983 action is mentioned in the trial court's decision. We see the trial court *160literally searching for some theory upon which to base a recovery for Dr. Fletcher.

Conceding at the very most that the hospital's statements in its pretrial briefs may have misled Dr. Fletcher into not submitting proof on the color of law issue, I would conclude that the sec. 1983 action was not fully litigated. Because this crucial issue was never fully tried, I would reverse and remand this matter for a trial on only this issue pursuant to our discretionary power under sec. 752.35, Stats. If the court concludes that the hospital had not acted under color of law with respect to denying Dr. Fletcher's application as required under a sec. 1983 action, then it should also dismiss the complaint. If it concludes that the hospital had acted under color of law, then it should reinstate its judgment.