William Jacobs, a duly licensed physician and surgeon of this State, maintaining an office in the Town of Irvington since 1936 and a member of the "courtesy staff" of the Irvington General Hospital since 1938, brings this action against John R. Martin, director of public affairs of the municipality and the members of the "senior attending staff" of the hospital to restrain them from denying him the right to perform "major surgery" upon his patients in the hospital. There is no dispute as to the plaintiff's right to the use of the facilities of the hospital for all other purposes, including the performance of "minor surgery." The narrow issue raised by the proceeding is whether the action of the defendants in prohibiting the plaintiff from performing "major surgery" was proper and lawful.
Since the plaintiff met and passed the requirements of the State Board of Medical Examiners, it is not the court's province to pass upon his qualifications. He has an unlimited license to practice medicine and surgery in this State, issued in accordance with R.S. 45:9-15, which license has never been suspended or revoked pursuant to R.S. 45:9-16.
The plaintiff is now about 42 years of age. A member of Phi Beta Kappa, he was graduated from Rutgers University in 1930 with a Bachelor of Arts degree. His medical education was received at George Washington Medical School, from which he graduated in 1935 with honors. He served his internship in recognized hospitals and has pursued post-graduate courses in surgical technique. In 1936, upon receiving his license to practice medicine and surgery in this State, he commenced practice in Irvington. From January 1941 until August 1945 he was in the United States Army, serving as attending surgeon at Fort Bragg, North Carolina, and later as battalion surgeon in the European theatre of operations. Upon his honorable discharge, he resumed practice in Irvington.
The Irvington General Hospital is the only hospital in Irvington and is a public institution operated and maintained
by the town. It is used by residents of Irvington, including the patients of the plaintiff. In 1938, the plaintiff was made a member of the "courtesy staff" of the hospital. He testified that in 1945 he was a member of the surgical staff and performed major operations upon his patients and assisted other doctors in like operations. By letter dated March 3, 1950, signed by the secretary of the hospital staff, he was notified that at a recent meeting the staff decided, "That you will operate with a member of the Surgical Committee assigned, and that this Committee will endeavor to equalize the number of cases which each member will supervise." Under date of March 20, 1950, he was informed by letter "that at the last regular meeting of the Medical Staff of the Irvington General Hospital, the Staff has decided that you are to have no privileges to do major surgery." The meetings of the staff preceding these communications were held without notice to or attendance by the plaintiff. He had not been notified or apprised of any charges against him; and, in fact, none have been made or filed against him. The revocation of his right or privilege to perform major surgery upon his patients was without cause so far as any formal record is concerned.
The Town of Irvington operates under the Walsh Act, and the hospital was established under the authority of R.S. 30:9-13. The municipality has adopted two ordinances respecting the operation of the hospital. The first, No. 749, was adopted on September 29, 1925, and the second, No. 1256, adopted on June 24, 1930, amended the former. Originally, it was provided that the hospital should be managed by and operated under the supervision of a board of trustees composed of nine citizens, but no Board was ever appointed. The amendatory ordinance provided that the management and operation of the hospital be referred to a director of one of the departments of the town commission, who "shall make rules and regulations in reference to the * * * duties of * * * attending, assistant attending, consulting and adjunct staffs, and shall do and perform all
other such acts as may be necessary for the proper management and government of the Hospital."
The amendatory ordinance further prescribed:
"The General Staff of the Hospital shall consist of the attending, assistant attending, consulting and adjunct attending physicians, who shall be appointed by the Director of the Department to which the management and operation of the Hospital has been assigned, subject to confirmation by the Board of Commissioners. The members of said staff shall have the qualifications set forth in Article III of the Ordinance of which this ordinance is amendatory, and shall remain members of the General Staff during the pleasure of the Director of the Department to whom the management of the hospital is assigned. * * *"
The pertinent portion of Article III of Ordinance No. 749 reads:
"* * * The members of the said staff shall be physicians regularly licensed to practice in the State of New Jersey, and they shall remain members of said General Staff during the pleasure of the Board (of Trustees)."
From 1934 to 1950 the management of the hospital was under the direction of Percy A. Miller, Jr., the Director of Public Affairs of the municipality, and since May 16, 1950 under his successor on the town commission, the defendant, John R. Martin.
Notwithstanding the provisions of the ordinances, neither the board of commissioners or the directors of public affairs prepared or formulated any written rules and regulations pertaining to the hospital. Director Miller testified that it was his policy as administrator of the hospital to conform to the standards of the American Hospital Association and other similar organizations; that while they were not published or reprinted by him, he used them as guides in his administration. However, no formal rules and regulations were available to interested persons, although their adoption was required by the ordinances.
Both Miller and Martin are laymen, and in the administration of the hospital relied upon ...