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No. 126333
| Lowell R. Fisher, D.O., |
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Philip Green |
Plaintiff-Appellant, |
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vs (Appeal from Ct of Appeals) |
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(Jackson - Perlos, A.) |
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| W. A. Foote Memorial Hospital, |
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Susan Healy Zitterman |
Defendant-Appellee. |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Brief on Appeal>>
Defendant-Appellee's Brief on Appeal>>
American Osteopathic Association, Michigan Osteopathic Association,
American Colllege of Osteopathic Surgeons' Amicus Curiae Brief>>
Background
Plaintiff Lowell R. Fisher, a licensed osteopathic surgeon, applied for staff privileges with defendant W.A. Foote Memorial Hospital 's department of surgery. To be eligible as a staff physician in that department, a candidate must have successfully completed a residency training program approved by the Accreditation Council for Graduate Medical Education (ACGME). The surgery department also required that a candidate be certified, or eligible to be certified, by the American Board of Surgery. This certification policy places the burden on the applicant to establish that his or her education, training, experience and competence is equivalent to ACGME training and certification. The hospital's board of trustees denied Fisher's request for a waiver of these requirements; the board concluded that his training and experience did not meet the specified criteria. Fisher then sued the hospital, claiming that the hospital illegally discriminated against him based on his status as an osteopathic physician and contrary to a provision of the Public Health Code (MCL 333.21513(e)). The statute provides in part that a hospital ". shall not discriminate in the selection and appointment of individuals to the physician staff of the hospital or its training programs on the basis of licensure or registration or professional education as doctors of medicine, osteopathic medicine and surgery, or podiatry." The trial court granted summary disposition in favor of the hospital and dismissed Fisher's claim on the ground that a hospital's staffing decisions were not subject to judicial review. The trial court also held that Fisher failed to establish that he was subjected to discriminatory treatment based on his status as an osteopath, in light of the evidence that the hospital regularly awarded staff privileges to osteopathic physicians. The Court of Appeals affirmed the trial court's ruling, but for a different reason. It held that MCL 333.21513(e) does not create a private cause of action. Fisher appeals.
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