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Petrocco v. Dover General Hosp. and Medical Center

Decided: May 20, 1994.


On appeal from the Superior Court of New Jersey, Chancery Division, Morris County.

Before Judges King, Havey and A.m. Stein.


The opinion of the court was delivered by KING, P.J.A.D.

Plaintiff, a chiropractor, appeals from a judgment of the Chancery Division denying his claim for staff privileges at Dover General Hospital and Medical Center, an acute-care private, general hospital. The hospital's bylaws did not provide for staff privileges for chiropractors and the institution declined to process plaintiff's application. The hospital board appointed an ad hoc

committee, all non-physician board members, to consider whether to amend the bylaws. That committee decided there was no need to open the staff to chiropractors and the board agreed. Under our highly deferential standard of review of a hospital's decision on how to structure its staff, we affirm the judgment.


Sometime in 1988 the plaintiff requested that the hospital send him an application for staff privileges. A hospital employee told him by telephone that chiropractors were not included as staff members under the bylaws of the hospital. On December 5, 1988 plaintiff wrote to the president of the hospital, asking him for a clarification of this policy. He confirmed in writing that the hospital's bylaws did not allow staff membership for chiropractors.

By letter dated February 22, 1989 plaintiff advised that he was interested in knowing the procedure for changing the bylaws. On March 21, 1989 the president replied and offered this rationale for the exclusion of chiropractors:

Dover General Hospital & Medical Center is not equipped or designed to handle patients requiring chiropractic care, nor is the Hospital in a position to effectively monitor the quality of chiropractic care which you propose to provide. Moreover, there currently is not a demonstrated need for chiropractic services to be provided in an acute care setting within our service area. Consequently, an application for membership to our staff cannot be provided.

Unsatisfied, plaintiff continued to press his position upon the hospital officials for staff admission.

Prompted in part by plaintiff's inquiries, in March 1990 the hospital administration decided to create an ad hoc committee to consider the need for amending the bylaws to add chiropractors to the types of practitioners entitled to staff privileges. A four-member, non-physician committee was appointed. As part of its investigation, the committee requested information from two chiropractic associations. One did not respond; the other provided articles and materials relevant to other hospitals' experiences with chiropractors on hospital staffs. The committee also reviewed materials provided by the hospital's counsel, consisting of an

article and a legal memorandum favoring exclusion of chiropractors. The committee met twice to discuss these materials.

On September 27, 1990 the committee issued its report advising the hospital's board of trustees of its unanimous vote to recommend that the bylaws not be revised to permit chiropractors staff privileges. The committee made thirteen findings, which we summarize:

1. New Jersey statutory law did not require that hospitals admit chiropractors;

2. No acute-care hospital in New Jersey had chiropractors on its staff;

3. N.J.A.C. 13:44E-1.1 defined chiropractic as "that discipline whose methodology is the adjustment and manipulation of the articulations of the spine and related structures and whose purpose is the relief of certain abnormal clinical conditions of the human body causing discomfort resulting from the impingement upon associated nerves;"

4. If a chiropractor determined that a patient had a problem not treatable by a chiropractor, the chiropractor was required by law to refer the patient to a medical doctor;

5. Hospital bylaws required that each patient be examined by a doctor of medicine or osteopathy;

6. Under hospital bylaws the treatment of medical conditions had to be directed by a doctor of medicine or osteopathy;

7. The hospital's patients "generally suffer from an acute medical condition requiring medical and/or surgical care, including the use of pharmacological methods, none of which may be prescribed by chiropractors;"

8. The hospital had no record of any patient or staff member ever having requested chiropractic care in the hospital;

9. The hospital had no administrative apparatus in place for the evaluation and approval of admission of chiropractors;

10. "The nature of chiropractic evaluation and treatment is fundamentally different from the evaluation and treatment of patients offered by doctors of medicine and osteopathy in acute care facilities such as the Hospital;"

11. The addition of chiropractors to the staff might expose the hospital to additional liability risks;

12. Chiropractors were authorized to refer their patients to the hospital's x-ray and laboratory facilities for testing, the results of which were sent to the chiropractor;

13. Chiropractors were authorized to refer their patients to the hospital's medical staff for diagnosis and treatment.

Based upon these findings, the committee reached these Conclusions:

1. The addition of chiropractors to the Hospital's Medical Staff is not required by law.

2. The addition of chiropractors to the Hospital's Medical Staff is not necessary for the Hospital to carry out its mission of providing acute care services to the community.

3. Any benefits obtained by admitting chiropractors to the Hospital's Medical Staff would be enjoyed by an insignificant number of patients, and would not be necessary to the provision of appropriate acute care services by the Hospital.

4. The admission of chiropractors to the Hospital's Medical Staff would result in substantial direct and indirect costs and an adverse effect on Hospital operations which would far outweigh any resulting benefit.

5. Although chiropractors might enjoy various benefits from admission to the Hospital's Medical Staff, the same would be true of many other health care professionals, such as nutritionists, physical therapists and psychiatric nurses. The Hospital's decision to expand its Medical Staff to include new categories of professionals must be based upon net benefit to the mission of the Hospital and the patients it serves.

6. We concur that chiropractors currently have the right and opportunity to refer their patients to Hospital facilities for x-rays and laboratory tests, and can refer patients to members of the Hospital's Medical Staff for all necessary, non-chiropractic diagnosis or treatment.

At a meeting on September 27, 1990 the hospital board of trustees voted to accept the committee's recommendation. The vote was ten "yes," zero "no," and three abstentions.

In July 1991 plaintiff's counsel requested and was supplied with the hospital's bylaws. The bylaws defined "medical staff" as follows: "All doctors of medicine, osteopathy, dentistry and podiatry licensed to practice in the State of New Jersey and who are privileged to attend patients at Dover General Hospital." Staff membership was divided into three fields: medical, dental, and podiatric. All applicants for the medical staff were required to be "legally licensed to practice medicine and surgery" in New Jersey.

The bylaws set forth detailed procedures for the processing of applications for the medical staff. In addition, the bylaws granted a right to a formal hearing to any applicant receiving an unfavorable recommendation. If an applicant failed to prevail after a hearing, the applicant had the right to appeal to the board of trustees.

On August 9, 1991 plaintiff requested a hearing under Article 13.03 of the bylaws. On September 19, 1991 the hospital denied plaintiff's request on the ground that as a chiropractor, he did not qualify as an "applicant." In response to a request for further clarification, on October 25, 1991 the hospital again explained that the bylaws afforded no procedural rights to chiropractors. In justification of its decision not to amend its bylaws to include chiropractors, the hospital explained it had "determined that it is not in the best interests of the Hospital and its patients to expand the medical staff to include chiropractors."


In January 1992 plaintiff filed a complaint in the Chancery Division and an order to show cause against defendant-hospital, its board of trustees, its executive committee, and its president. Plaintiff alleged that he had been damaged by the hospital's refusal to allow him to apply for staff privileges. He expressed his legal theories in five counts: (1) breach of contract under the hospital's bylaws; (2) common-law due process; (3) constitutional due process; (4) defamation; and (5) the New Jersey Antitrust Act.

The Medical Society of New Jersey and the New Jersey Hospital Association successfully moved for permission to intervene and to participate "as if" they "had been named as original party defendants." The hospital defendants moved for summary judgment and plaintiff filed a ...

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