Conford, Michels and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
We are here asked to reconsider our holding in Sussman v. Overlook Hospital Assn. , 95 N.J. Super. 418 (App. Div. 1967), regarding the procedural scope of the fair hearing which a private hospital is required to afford a physician before it may refuse him a staff appointment. More specifically, we are asked to reconsider the conclusion we there reached that the physician is not entitled to representation by counsel at any stage of presentation of his case to the hospital authorities. We are also here asked to define the extent to which, if at all, the physician is entitled to prehearing discovery. We are satisfied that our reappraisal of our earlier holding is required by the development of the law in the decade since Sussman was decided both in respect of the status of private hospitals and in respect of the expansion of the right to counsel in a variety of noncriminal matters.
The questions here presented arise in an undisputed factual context. Plaintiff Eugene Garrow is a licensed physician of both this State and New York. A Diplomate of the American Board of Surgery, his subspecialty in the surgical area is pediatric surgery. In November 1974 he applied for appointment to the staff of defendant Elizabeth General Hospital (hospital) as a pediatric surgeon. The hospital characterizes itself as an "open" hospital. That is
to say, it holds itself ready to accord staff privileges to any competent and qualified applicant. Compare this status with that of hospitals, typified by defendant hospital in Guerrero v. Burlington Cty. Memorial Hosp. , 70 N.J. 344 (1976), which limit their staffs by reason of their judgment as to the requirements of the public interest.
Plaintiff's application indicates his prima facie impressive credentials. His training included a tour as chief resident in surgery both at Montefiore Hospital in New York City and at Children's Hospital in Detroit, Michigan. He was a Fellow of the American Academy of Pediatrics, Surgical Section, of the American Pediatric Surgical Association of the American College of Surgeons and of the New York Society for Pediatric Surgery. He was then serving as Director of Pediatric Surgery at Jersey City Medical Center and its affiliate, Margaret Hague Hospital, and attended at Christ Hospital in Jersey City and Clara Maas Hospital in Belleville. Since 1965 he had served as an Associate Clinical Professor at the New Jersey College of Medicine and had also published several articles in leading medical journals on his sub-specialty.
Initial consideration of plaintiff's application was delayed for several months because of his own request that it be held in abeyance. It thereafter proceeded in a relatively unexceptional manner through the various hospital committees and departments in accordance with the bylaws of the medical staff of the Hospital. By November 1975 the Medical Staff Executive Committee had approved the favorable recommendation of the Credentials and Eligibility Committee despite the absence of a recommendation from the Department of Surgery.*fn1 Before, however, final action was
taken on those favorable recommendations, the application was referred back to these Committees for reconsideration because of the hospital's receipt of additional information concerning plaintiff. That reconsideration resulted in a recommendation that the application be disapproved, and that recommendation was next considered by the Medical Organization Committee, whose responsibility it was to make the final recommendation to the Board of Trustees. The Medical Organization Committee's private deliberation resulted in a recommendation of disapproval, and the specific and detailed reasons therefor were memorialized in its meeting minutes,*fn2 ultimately furnished to plaintiff. Notice to plaintiff of the adverse recommendation by the Medical Organization Committee was accompanied by its advisory that he had the right to a hearing before the Board of Trustees pursuant to the bylaws and the further advisory as to the date by which he would be required to request such a hearing. The hearing was scheduled for May 21, 1976, but has not to this date taken place by reason of the intervention of this action, which was brought by plaintiff for the purpose of securing the procedural rights in respect of the hearing to which he regards himself entitled.
The complaint here filed and its accompanying order to show cause sought relief only from the hospital's refusal to accord plaintiff a pre-hearing opportunity "to examine all of the documents in [its] possession which are material to his application for membership." The hospital responded by a cross-motion seeking dismissal of the complaint on a variety of procedural grounds, including failure to exhaust administrative remedies, violation of the entire controversy doctrine and prematurity. By the time the parties' applications
were heard, however, two additional issues had been added to the controversy by consent: first, the hospital's right to exclude counsel from the scheduled hearing, and second, the right of the hospital's Board of Trustees to delegate the hearing function to a committee of its members for report and recommendation. The merits of these issues were not, however, reached below, the trial judge having concluded, and in our view erroneously so, that plaintiff's action was premature.
In our judgment the action was maintainable. There is no longer any question in this jurisdiction that a private hospital must accord a physician a hearing before it can reject his application for admission. The judicial function is, moreover, limited to a determination, based on a review of the record of that hearing, as to whether the hospital's decision "is supported by substantial credible evidence and is neither arbitrary nor capricious." Guerrero v. Burlington Cty. Memorial Hosp., supra , 70 N.J. at 356, 359 (1976). Thus the hearing is a critical event in the physician's ultimate challenge to the hospital's adverse action. Its virtually dispositive procedural consequences and its potentially dispositive substantive consequences demand that it be conducted with scrupulous fairness. Predetermined rules governing the conduct of the hearing which apparently have the capacity of substantially impinging upon the required minimum parameters of procedural fairness should clearly be subject to challenge without first requiring the physician to submit himself to a process whose procedural defects may be so grave as to affect his substantial rights. The offer by a hospital of an inadequate hearing is, in our view, no less actionable than its refusal to offer a hearing at all. We do not mean to suggest ...