This article will discuss the rights of a licensed physician to acquire and retain a hospital medical staff appointment. The focus of the discussion will be the relationship between the independent fee-for-service private practitioner and the community general hospital. The relationship of the organized medical staff to both the hospital and the individual doctor will also be clarified. The hospital involved this discussion may be owned by a governmental unit and hence identified as a “public hospital,” but more likely it will be aprivate, non-profit charitable corporation and will be referred to as a “private” hospital. Specifically, this article will explore the differences, if any, between a physician's rights vis-a-vis the public hospital and his or her rights when a private hospital is involved.

Excluded from this analysis are situations where the doctor is an employee of a hospital or health care institution. Also excluded are cases involving hospitals which limit their service to particular patients (e.g., the mentally ill or children), and university-owned teaching hospitals that impose a faculty appointment in the medical school as a pre-requisite to staff privileges.

On October 29, 1979, Judge Joseph Tauro of the United States District Court for Massachusetts issued a nationally publicized decision in a case entitled Rogers v. Okin, declaring that voluntary and involuntarily committed patients at Boston State Hospital had a constitutional right to refuse treatment in non-emergency situations. The suit, brought as a class action, was filed on April 25, 1975, by seven patients who were either voluntarily admitted or involuntarily committed to the May and Austin Units at Boston State Hospital. On April 30, 1975, a temporary restraining order was issued by the District Court enjoining the doctors at Boston State Hospital from continuing their practice of forcibly medicating patients in non-emergencies. This temporary order remained in effect through the trial and until the District Court issued its permanent order in October 1979.

The ruling was widely criticized by some psychiatrists as an unwarranted intrusion by the courts into the practice of medicine. However, others within the medical and the legal communities considered the decision a major victory for the civil and human rights of institutionalized patients.

Probably the most vexing result of the Massachusetts Supreme Judicial Court's [SJC] opinion in the Spring case is that judges, lawyers, and others faced with similar problems in other jurisdictions are likely to read the opinion and commend the Supreme Judicial Court for its efforts. Yet, once the background of this case is known, or once one reads the opinions of the Court of Appeals or of the Probate Court, or the briefs submitted by the parties and the amici curiae, the inadequacies of the opinion become apparent. In our view, the Spring decision works a disservice on all those both within and without Massachusetts who seek guidance from the courts as they attempt to resolve similar cases.

The Illinois Association of Hospital Attorneys [IAHA], among others, filed a brief amicus curiae in the Spring case for three reasons: First, to ask that the SJC reconsider the position it had taken in Saikewicz, and thereby to alleviate some of the misunderstanding caused by that decision. Second, to ask the court to reconsider whether the tests it enunciated in Saikewicz were truly workable in the contemporary health care delivery system.