Opinion
March 8, 1951 —
April 3, 1951.
APPEAL from a judgment of the circuit court for Fond du Lac county: Louis J. FELLENZ, Circuit Judge. Reversed.
For the appellant there were briefs by Schmitt, Eckhardt Gullickson of Merrill, and oral argument by L. F. Schmitt.
John L. Nesbitt, city attorney, for the respondents.
J. Martin Johnson, the plaintiff, has been a duly licensed and practicing physician and surgeon at Ripon, Wisconsin, since 1924. In 1936 the city of Ripon completed and opened the Ripon Municipal Hospital, under the management and supervision of the board of hospital commissioners known as the municipal hospital board. Under the provisions of sec. 66.50, Stats., the governing board of the hospital had authority to enact rules and regulations relating to the government, operation, and maintenance of such hospital. Pursuant to said authority, it adopted a set of by-laws. Secs. 1 and 6 of art. V of said by-laws read as follows:
"Section 1. Every member of the medical profession of the city of Ripon who is licensed to practice . . . in this state and who is eligible to membership in the Wisconsin state medical society is eligible to membership on the active staff of the Ripon Municipal Hospital, and may become a member of such active staff upon registration."
"Section 6. The commission reserves the right to remove any member of the medical staff or to reprieve [deprive] any physician or surgeon of the privileges of the hospital whenever, in their sole judgment, the good of the hospital or of the patients therein demand it; and it reserves the right at any time of making any changes in these rules, by amendment, addition, substitution, repeal, or revision, as in its judgment may seem for the best interests of the hospital and those who are to become patients therein."
On April 17, 1948, said municipal hospital board adopted a resolution, the pertinent part of which reads as follows:
"Be it therefore resolved that for the best interest of the hospital the said Dr. J. M. Johnson be suspended indefinitely from the staff."
The plaintiff then commenced this action to enjoin the city of Ripon, a Wisconsin municipal corporation, and J. L. Chipman, Helen M. Howe, Robert E. Kay, A. C. Bachus, Mrs. George Graf, Mrs. P. J. Lunde, Donald Buchholz, R. O. Hader, and Robert McDonald, constituting the board of hospital commissioners known as the municipal hospital board of the city of Ripon, in their capacity as such, the defendants, from prohibiting and preventing him from practicing medicine and surgery in said hospital.
This appeal is from a judgment entered August 5, 1950, dismissing the plaintiff's complaint and allowing costs to the defendants.
It has been determined in this state, in the case of State ex rel. Wolf v. La Crosse L. H. Asso. 181 Wis. 33, 193 N.W. 994, that the directors of a private hospital corporation have the power to exclude physicians from the privilege of practicing their profession in said hospital, and that the only right physicians have to practice therein is by contract. Our attention has not been directed to any Wisconsin case dealing with the right of a physician and surgeon to practice in a public hospital. The plaintiff has cited many cases from foreign jurisdictions and they have been carefully examined. The rule as laid down in those cases is well summarized in 26 Am. Jur., Hospitals and Asylums, p. 592, sec. 9:
"Regulations as to use or practice by physicians and surgeons. — It seems to be the practically unanimous opinion that private hospitals have the right to exclude licensed physicians from the use of the hospital, and that such exclusion rests within the sound discretion of the managing authorities. This is not, however, the rule applied to public hospitals, since a regularly licensed physician and surgeon has a right to practice in the public hospitals of the state so long as he stays within the law and conforms to all reasonable rules and regulations of the institutions. . . ."
It is therefore necessary to determine whether or not sec. 6 of art. V of the by-laws duly enacted for the government and maintenance of said hospital is a reasonable regulation. Neither this section nor any other section of said by-laws provides for any notice to the doctor of the nature of the charges against him nor for any notice of a date of hearing at which he may appear and defend himself as to the charges. No notice was given to the plaintiff herein prior to the adoption of the resolution suspending his right to practice his profession in said hospital. A regulation for the suspension of the right of a duly licensed physician and surgeon residing in the municipality owning, maintaining, and operating a public hospital is not reasonable unless provision is made for such notice and hearing. The trial held after the resolution of suspension is not a substitute for a hearing before the municipal hospital board. The resolution adopted on April 17, 1948, is therefore void and of no effect. The plaintiff being duly licensed and a resident of the city Ripon is entitled to continue the practice of his profession in said hospital as he was prior to the adoption of said resolution.
By the Court. — Judgment reversed and cause remanded with the directions to enter judgment in favor of the plaintiff as prayed for in his complaint.