For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The Law Division directed that the defendants consider the plaintiff's application for membership on the courtesy medical staff of the Newcomb Hospital without regard to a requirement in their bylaws which it declared to be void or invalid as to the plaintiff. See Greisman v. Newcomb Hospital, 76 N.J. Super. 149 (Law Div. 1962). The defendants appealed to the Appellate Division and we certified before argument there. R.R. 1:10-1(a).
In 1958, the plaintiff graduated from the Philadelphia College of Osteopathy with the degree of doctor of osteopathy. He served an internship, took the full medical boards in New York, and was given an unqualified license to practice medicine and surgery in that state. Thereafter, he was admitted to practice in Michigan, Florida and New Jersey. His New Jersey admission by the State Board of Medical Examiners constituted an unrestricted license to practice medicine and surgery within the borders of our State. See N.J.S.A. 45:9-1 et seq.; Falcone v. Middlesex Co. Medical Soc., 34 N.J. 582 (1961). In July 1959, he began the general practice of medicine in the City of Vineland and, in November 1959, he opened an office in Newfield which is in the Vineland metropolitan area. See 76 N.J. Super., at p. 156. Until January 1962 he also engaged in the practice of medicine from his home in Vineland. He is the only licensed physician in Newfield, is the plant physician for a Newfield company engaged in heavy industrial work and for an additional company engaged in the making of glassware, and is the school physician for Newfield's public school as well as for a Catholic school in the same community. He states that he is the only osteopathic physician fully licensed to practice general medicine and surgery in the metropolitan Vineland area which is said to have a population approximating 100,000; the defendants state that there is another osteopathic physician practicing in Vineland but the suggested variance is of no real significance here.
In 1961, the plaintiff sought to file an application for admission to the courtesy staff of the Newcomb Hospital which is located in Vineland about a mile from his home. The hospital was incorporated in 1921, is operated as a general hospital, and is the only hospital in the Vineland metropolitan area. Its certificate of incorporation sets forth the purposes for which it was formed including, first, the care of sick and injured persons residing in Vineland, second, the care of sick and injured persons residing in Vineland, second, the care of sick and injured persons residing in the vicinity of Vineland, and thereafter the care of such "other sick or injured persons as the facilities of the hospital will permit." The hospital is a nonprofit corporation and its governing body is a Board of Trustees consisting of not less than 15 members. It solicits and receives funds annually in the form of charitable contributions and has received funds from the Ford Foundation. Several years ago it constructed a new building, the cost being borne almost entirely by public subscription. It receives funds from the City of Vineland for the treatment of indigent patients from within the city, and funds from the County of Cumberland for the treatment of indigent patients from other areas in the county. It receives tax exemptions available to nonprofit corporations operated for charitable and like purposes. See N.J.S.A. 54:4-3.6; cf. 26 U.S.C.A. § 501. It is eligible for federal funds under the Hill-Burton Act. 42 U.S.C.A. § 291 et seq.
Despite suitable requests, the Newcomb Hospital refused to permit the plaintiff to file any application for admission to its courtesy staff. In taking that course it did not question his personal or professional qualifications nor did it purport to exercise a discretion in the process of administrative screening and selection. It rested entirely on a provision in the hospital bylaws which sets forth that an applicant for membership on the courtesy staff must be a graduate of a medical school approved by the American Medical Association and must be a member of the County Medical Society. The American Medical Association has long rejected schools of osteopathy, though the original supporting reasons have been
largely dissipated. See Falcone v. Middlesex Co. Medical Soc., supra, 34 N.J., at p. 585, n. 1; cf. "Report of the Committee for the Study of Relations Between Osteopathy and Medicine," 158 A.M.A.J. 736 (1955); "Special Report of the Judicial Council," 177 A.M.A.J. 774 (1961), 178 A.M.A.J. 226 (1961); "Report of the Judicial Council," 184 A.M.A.J. 356 (1963). Admittedly, the plaintiff is not a graduate of a medical school approved by the American Medical Association and, because of his schooling, his application to the County Medical Society was never acted upon. The school he graduated from is an accredited school of osteopathy, has been approved as in good standing by the New Jersey State Board of Medical Examiners, and has long given the full traditional medical course as well as osteopathic teaching. See Falcone v. Middlesex Co. Medical Soc., supra, 34 N.J., at pp. 584-585.
On dates subsequent either to the initiation of the Falcone litigation or the decision therein, the following events occurred: The American Hospital Association announced that it would list hospitals having doctors of osteopathy on their staffs. The Joint Commission on Accreditation of Hospitals announced that hospitals listed by the American Hospital Association and having osteopaths on their staffs are eligible for accreditation, providing the overall supervision of clinical work is under "a doctor of medicine (as chief of staff and chief of department, if departmentalized)." See Joint Commission on Accreditation of Hospitals, Bulletin No. 25, at p. 2 (1960). The Judicial Council of the American Medical Association recommended and its House of Delegates adopted a statement of policy under which members of Medical Societies were authorized to practice with doctors of osteopathy where it was determined locally that they practice on the same scientific principles as those adhered to by the American Medical Association. The Judicial Council of the Medical Society of the State of New Jersey adopted a resolution declaring that it shall not be unethical for members of the Society "to enter into voluntary professional association with
any person holding a full license as a physician or surgeon granted by the State Board of Medical Examiners who adheres to the same scientific principles embraced by the members of the Medical Society of New Jersey." There is nothing in the record to suggest that the plaintiff does not adhere to the scientific principles of the American Medical Association and the New Jersey Medical Society within the contemplation of the afore-mentioned statement of policy and resolution. See 76 N.J. Super., at p. 163. Nor does the hospital suggest that its accreditation would be endangered if its courtesy staff included a reputable and qualified osteopathic physician who engaged in the general practice of medicine pursuant to a license to practice general medicine and surgery issued by the State Board of Medical Examiners. Indeed, the Elmer Hospital, which is seven and one-half miles from Newfield, and the Bridgeton Hospital, which is twelve miles from Vineland, have admitted osteopathic physicians to their medical staffs without impairment of their accreditation.
The Law Division found that the Newcomb Hospital did not confine itself to any specialized branch of medicine and had assumed the position and status of the only general hospital open to the public within the convenient accessibility of the inhabitants of the metropolitan area of Vineland, including Newfield; that the plaintiff had suffered economic and other harm because he was not permitted to admit his patients to the hospital or to serve them professionally once they were admitted, or to use the emergency room services of the hospital; that his patients suffered restriction in their choice of physicians or hospital facilities because of the plaintiff's inability to attend them professionally at the hospital, and that this was not minimized by the fact that the plaintiff was permitted to visit them at the hospital without, however, any opportunity to read their charts or prescribe for them. See 76 ...