(dissenting).
I cannot agree with the majority. It looks to me as though we are opening the door to a possible future situation wherein a municipal corporation could indirectly practice medicine by hiring its own doctors to operate a municipal hospital, particularly where such a hospital, as in the instant case, is the only one in the area served and admits public and private cases for medical and surgical care. To permit the Virginia hospital commission to accomplish this by its resolution of June 3, 1957, is in my opinion arbitrary, unreasonable, and not in accord with the laws of this state.
*567We have previously said in In re Disbarment of Otterness, 181 Minn. 254, 232 N. W. 318, 73 A. L. R. 1319, that a corporation cannot indirectly practice law by hiring a licensed attorney to practice for others for the benefit or profit of such hirer. In line with this same reasoning we said in Granger v. Adson, 190 Minn. 23, 250 N. W. 722, that we were just as firmly convinced that it is improper and contrary to statute and public policy for a corporation or layman to practice medicine in the same way.
In the case at bar the majority is holding that a hospital commission created by the charter of the city of Virginia and empowered to administer, maintain, and control a municipal hospital could place the department of radiology under a full-time radiologist, and adopt a resolution requiring that the use of equipment and technicians of such department by medical staff members be in consultation with and under supervision of the hospital radiologist. The majority is also holding, based on the findings of the trial court, that the action of the commission in adopting the resolution was not arbitrary or unreasonable, but was in furtherance of its obligation to operate and administer the hospital efficiently and economically and should be sustained.
An examination of the resolution shows that any member of the active medical staff may be called in consultation by any other member of the hospital staff. The consultant will have access to all the hospital records affecting the patient in question, including laboratory reports, reports on tissues examined by the hospital pathologist, and X-rays taken under the supervision of the hospital radiologist. It further provides that after adequate examination of the patient and/or his hospital records, the consultant will enter his opinion on the hospital chart as to diagnosis and/or recommendations for treatment of the patient.
The resolution also provides that the above requirements would apply to Dr. Benell, the appellant herein, and that while he is a member of the active medical staff he may be called in consultation by another member of the staff. It also permits him to enter into the hospital charts his interpretation of X-rays taken under the supervision of the hospital radiologist, or he may be consulted for his opinion as *568to X-ray therapy for a patient, which opinion should be entered in the hospital chart.
Thus far the resolution may not be objectionable. However, we next come to this objectionable part, which reads:
“In consultation with the hospital Radiologist, a decision may be made as to the method of administration and dosage schedule for the X-ray therapy. At the request of the attending physician, the hospital Radiologist will then administer the X-ray therapy.”
While that part of the resolution provides that a decision may be made as to the method of administration and dosage schedule for X-ray therapy, it does not provide who is to make that decision. Supposing the qualified member of an active medical staff has a patient in the hospital who is willing to pay his own way, and supposing his doctor disagrees with the hospital radiologist as to the administration and dosage schedule for X-ray therapy, who is to be the final one to determine the matter — the qualified doctor of the paying patient or the hospital radiologist?
The resolution then goes on to say that at the request of the attending physician the hospital radiologist will then administer X-ray therapy. Supposing the patient’s doctor disagrees with the hospital radiologist as to dosage schedule for X-ray therapy, and will not request the hospital radiologist to administer X-ray therapy because of this disagreement, what will be the situation then?
In the case before us the record shows that the appellant is a specialist in radiology and is a member in good standing of the active staff of the Virginia Municipal Hospital. It further discloses, according to the supplemental record, that Dr. Benell was formerly the radiologist for the Virginia Municipal Hospital and was not displaced for any reason of incompetency but because he was and is associated with one of the clinic groups practicing medicine and surgery in Virginia. That record further shows that the Virginia hospital commission, prior to the adoption of the resolution complained of, did not object to the appellant working as a radiologist “on an independent basis” with the so-called hospital radiologist.
The majority opinion further goes on to say that the challenged *569resolution constitutes an administrative act adopted by the hospital commission pursuant to Charter of City of Virginia, § 200-C, and accordingly the function of this court is limited to a determination whether the commission’s action in adopting the resolution was arbitrary or unreasonable. In determining this question the majority opinion says we may not substitute our judgment for that of the commission on matters relative to policy or good practice, which are purely administrative rather than legal in nature.
I cannot agree with the latter statement that in matters of physical treatment so serious that the services of a radiologist are needed for the treatment of cancer or other critical conditions that it is a purely administrative matter rather than legal in nature. On the contrary it seems to me that a patient suffering from such a serious condition has some legal rights beyond merely administrative authority, and that if he is in a municipal hospital in a community where there is no other private hospital, and is such a patient who is willing to pay his own way, he should have the right to have his own selected physician to determine and administer dosage schedules for X-ray therapy if such a physician is a qualified radiologist as in the situation with Dr. Benell.
I realize that there is authority to the effect that a private hospital can make any regulations it chooses. Natale v. Sisters of Mercy, 243 Iowa 582, 52 N. W. (2d) 701. However, I do not think such a rule should apply where the defendant, as here, operates a public hospital. If we are to say at this time that a rule requiring a hospital radiologist to administer the dosage schedule for X-ray therapy is a reasonable one, what is to prevent an attempt to extend this rule to surgery and other types of treatment in any public hospital. In other words, supposing at some future time a municipal hospital was to attempt to employ its own qualified surgeon for particular types of operations to be performed in the institution, can it be said that even after consultation with the patient’s individual doctor such a patient would have to submit to an operation by a doctor selected by the hospital? If such a condition could be developed in the future, we can well anticipate a type of socialized medicine and hospitalization practice furnished by municipal bodies, a situation which to this writer would seem veiy undesirable.
*570In the opinion of this writer, the resolution adopted by the Virginia hospital commission is invalid in so far as it attempts to deprive a patient in that hospital of his free choice of a physician or surgeon when such a doctor selected by the patient is a member in good standing of the medical staff of that hospital and fully qualified, as the record discloses here, to make X-ray examinations and administer X-ray treatments.
It is my further opinion that the resolution referred to herein is contrary to the laws of this state with reference to medical and surgical care for recipients of old-age assistance. Our legislature appears to have carefully guarded the rights of a person receiving old-age assistance to be attended by a doctor of his own choice. See, M. S. A. 256.12, subd. 18. In that section “Vendor of medical care” is defined. It covers medical, surgical, hospital, optical, dental, nursing services, drugs and medical supplies, appliances, laboratory, diagnostic and therapeutic services, etc.
That section further provides that the commissioner of public welfare may adopt rules and regulations provided “that such rules and regulations shall not deprive the recipient of free choice of vendor nor deprive the vendor of payment on a fee for service or supply basis.”
It seems clear to me that it is the intent of the law that a recipient of such form of public relief has a right to be treated by a doctor of his own choice. Surely a resident of the Virginia community, or any similar community in this state, who pays for his hospitalization and medical care has a natural right to be attended by a doctor of his own choice when the doctor so selected is a member in good standing of the medical staff of the Virginia Municipal Hospital, or a similar hospital. To that extent I believe that the resolution adopted is arbitrary, unreasonable, and not in accord with the laws of this state.
The question before the court in the instant case is an important one from the standpoint of the public. In many communities in this state there is only one hospital serving public and private patients alike. It, therefore, does not appear to me that a hospital commission, or hospital board, operating such a public hospital should be able by resolution to deprive the patient of the right to be attended by a doctor *571of medicine of his own choice, when such doctor is duly licensed and is admittedly a competent and qualified member of the medical staff of such a hospital.
The question is also important to doctors of medicine who have given their time and money to become qualified and competent in the various specialities in medicine. One who has done so, and who has been admitted to the medical staff of a hospital, ought not to have his privilege nullified, as has been attempted in this case. The question is not one of a doctor seeking admission to the staff of a hospital.
Although the writer of this dissent was not present at the oral argument, this case has been submitted to him on the record and briefs as provided for under Supreme Court Rule XIII (222 Minn, xxxvi), which provides in part as follows: “Whenever any member of the court is not present at the oral argument of a case, such case shall be deemed submitted to such member of the court on the record and briefs therein and when during the consideration of a case there is a change in the personnel of the court the case shall be deemed submitted to the new member or members on the record and briefs.”