Edward Gray Davis LL.B.

Edward G Davis
1315 West Ocean View Ave.
Apt. 1 Norfolk VA 23503
Tel: (757) 855-4746

graydavis@surfbest.net

5-18-02

Dear Dr. Amarasinghe,

Here is the basic argument I would use to support our position that you
have been denied both your liberty and property rights without the Due
Process of Law guaranteed you under the Fourteenth and Fifth Amendments
to the U.S. Constitution. I would also argue that the secret peer review
process under which Virginia and other states allow physicians to deny
or remove other physicians from the right to practice medicine and
surgery at public and private hospitals(which receive Hill-Burton funds
or other state or federal assistance) violates both procedural and
substantive due process in that no hearing is afforded the physician(s)
affected. In addition, Section 8.01-581.17 of the Virginia Code also
violates procedural and substantive due process in that it requires that
all proceedings, minutes ,records and reports of such peer review
committees and other groups are privileged communications which may not
be disclosed by legal discovery proceedings. Such a statute makes it
virtually impossible for a physician to defend him or herself since the
Virginia Board of Medicine provides no opportunity for the physician to
have a hearing to contest the adverse decision, and the statute prevents
the physician from obtaining any evidence with which to contest the
decision of the peer review committee - even if a right to a hearing
existed.

Fortunately the U.S. Court of Appeals for the Fourth Circuit declined to
recognize such a privilege for peer review committees and documents in
federal courts, but this is hardly sufficient. In Virmani v. Novant
Health,Inc. et.al. (No. 00-2423 - decided: August 1, 2001), the Fourth
Circuit followed the U.S. Supreme Courts decision in University of
Pennsylvania v. EEOC, 493 U.S. 182
(1990) in which the court declined to create such a privilege because it
determined that the costs associated with discrimination outweighed the
costs that would ensue from the disclosure of peer review materials.
Crucial to the Courts holding was its determination that Congress had
balanced the relevant interests and had declined to create a
privilege.See University of Pa.supra, at 189-93. The Court found the
peer review materials to be especially relevant because the
discrimination charge arose from the peer review proceedings themselves:

Confidential material pertaining to other candidates for tenure in a
similar time frame may demonstrate that persons with lesser
qualifications were granted tenure or that some pattern of
discrimination appears ..... The peer review material itself must be
investigated to determine whether the evaluations are based in
discrimination and whether they are reflected in the tenure decision.
It is important to point out here that racial discrimination is not the
only allegation which has caused the U.S. Supreme Court and the other
Federal Courts to refuse to recognize the state-created privilege in
these peer review cases. Nor have the confidentiality laws of the states
been trumped by the Federal Courts only in medical peer review cases.
Obviously the U.S. Supreme Courts holding in University of Pennsylvania
v.E.E.O.C.,supra occurred in the context of a professor seeking tenure,
but it is clear that the U.S. Supreme Court, the Fourth Circuit, other
Federal Circuit Courts, Federal District Courts and the U.S.Congress are
in agreement that when a person has alleged a violation of any civil
right protected by Federal law which may have occurred in the peer
review process, this outweighs the valid reasons for confidentiality
within the peer review process and any
documents generated by it. It is obvious that a person who has been
denied or lost a job through a secret meeting has no way of showing
whether he or she has been denied or lost a job for valid reasons or for
reasons which violate the persons basic civil rights or other federal
laws unless the person has access to the records,minutes and other
documents as well as a hearing at which this and other evidence can be
presented.

Many of these cases(including Dr. Shahs antitrust lawsuit against The
Memorial Hospital and the Danville,VA. Urologic Clinic,reported in the
Danville Register of June 1,1989) involved economic discrimination. Shah
received $775,000 in an out of court settlement based on his claim of
antitrust violations by the defendants even though U.S. District Court
Judge Jackson Kiser ruled that Shah did not have enough evidence to
support his claim that the defendants had discriminated against him
because he is an Indian, and the Fourth Circuit upheld Judge Kisers
decision on the racial claim.
The U.S. Supreme Courts decision in University of Pennsylvania v.
,supra, was thorough and quoted numerous U.S. Circuit and District Court
decisions as well as analyzing
the specific exception which the U.S. Congress made when it refused to
recognize a privilege in cases involving allegations that a persons
civil rights or other rights protected by federal law(such as antitrust
violations) may have been violated. Fundamental fairness supports all
these refusals to allow confidentiality laws enacted by states to
override basic Constitutional rights and other rights protected by
Federal Law.

A peer review committee which meets in secret and knows that the person
it is deciding to refuse a job or terminate has no right to a hearing
nor to obtain evidence (unless he or she has the money and time to pay
for an expensive lawsuit in Federal Court) can do anything it wants for
the worst possible reasons and damage the publics health in the
process. It can terminate a competent physician because he or she is
taking patients away from less competent doctors sitting on the
committee. It can protect dangerous physicians and endanger the public
because they are part of thegood old boy network, personal friends or
because such incompetent physicians might retaliate against equally
incompetent doctors sitting on the peer review committee by going to the
press if they are terminated. The peer review committee can fatten their
wallets by limiting the number of doctors who can practice in a given
area which damages the publics health since there arent enough doctors
in the area and which violates our commitment to the free market.
This,of course, is why most of the cases brought to court involve
allegations that federal antitrust laws have been violated. At a time
when the country is struggling with the increasing cost of health care,
it is crucial to focus on these dangerous nationwide peer review systems
as much as on the HMOs and the conflicts and collusion between many
doctors and the insurance industry.

A few other cases cited by the U.S.Supreme Court in University of
Pennsylvania v. E.E.O.C. should prove useful before proceeding to the
due process and discrimination arguments. In Holland v. Muscatine Gen.
Hospital, 971 F.Supp. 385, 390(S.D. Iowa 1997) the Federal District
Court refused to recognize the privilege in an action brought under
Title VII of the Civil Rights Act of 1964 and stated that the adequacy
of the peer review investigation itself is in issue.It is important to
recognize that private hospitals and corporations can be sued under this
law. There is no need to find state action or that the private
hospital or employer has been accepting Hill-Burton or any other form of
federal or state assistance. In Marshall v. Spectrum Medical Group, 198
F.R.D. 1, 5 (D. Me. 2000) the Court refused to recognize a privilege in
an action brought under the Americans with Disabilities Act, in part
because the suit alleged abuse of the peer review process.
The U.S. Court of Appeals for the Fourth Circuit (which includes
Virginia) relied heavily on Memorial Hospital v. Shadur, 664 F. 2d
1058,1062,1063 (7th Cir. 1981) in Virmani v. Novant Health,Inc.,supra.
In Shadur(quoted in Virmani),the U.S.Court of Appeals for the 7th
Circuit stated:

There is no evidence that state legislatures considered the potential
impact on discrimination cases of a privilege for medical peer review
proceedings. Thus, the states policy decisions,reflecting different
concerns than those implicated here, do not inform the judgment of this
court in this case. Weighing further against recognizing a privilege
here is that, in contrast to a medical malpractice or defamation action,
if a plaintiff succeeds in a discrimination case, he advances important
public interests in addition to his personal interests. Cf.id. (refusing
to recognize a privilege for medical disciplinary proceedings in an
antitrust case and observing that
if the plaintiff was successful in proving his claim, he would
vindicate not only HIS OWN RIGHT TO PRACTICE MEDICINE(emphasis
supplied) ...., but also THE STRONG PUBLIC INTEREST IN OPEN AND FAIR
COMPETITION WHICH IS EMBODIED IN THE SHERMAN ACT UNDER WHICH THE CASE
ARISES).(emphasis supplied)

In Virmani,supra, the Fourth Circuit continued its reliance on the
U.S.Supreme Courts holding in University of Pennsylvania,supra, 493
U.S. at 189. We should not recognize a privilege
where it appears that Congress has considered the relevant competing
concerns but has not provided the privilege itself. University of
Pa.,493 U.S. at 189.The district court below found that Congress had
considered and rejected a privilege for medical peer review materials
when it enacted the Health Care Quality Improvement Act of 1986
(HCQIA). 42 U.S.C.A. Sections 11101-11152(West 1995). The U.S. Court
of Appeals then notes that the U.S. Supreme Court followed the reasoning
of other district courts that had considered the issue and determined
that Congress decided not to establish a privilege for peer review
documents. See,e.g., Johnson v. Nyack Hospital, 169 F.R.D. 550, 560
(S.D. N.Y. 1996).
Congresss findings with respect to the HCQUIA reflect its concern that
medical malpractice and the need to improve the quality of medical care
were national problems. See 42 U. S.C.A. Sec. 11101(1). Congress
determined that effective peer review would provide a remedy to these
problems. See id. Sec. 11101(3). However, The threat of private money
damage liability under Federal laws, including treble damage liability
under Federal antitrust law, unreasonably discourages physicians from
participating in effective professional peer review. Id. sec. 11101(4).
Thus Congress concluded that There is an overriding national need to
provide incentive and protection for physicians engaging in effective
professional peer review. Id. sec. 11101(5). To
provide this incentive and protection, Congress provided immunity from
liability in damages to participants in the activities of professional
review bodies meeting specified standards. See Id. sec. 11111(a).
HOWEVER, CONGRESS CREATED AN EXPRESS EXCEPTION TO THE IMMUNITY PROVISION
IN THE CASE OF CIVIL RIGHTS ACTIONS.See Id. Sec. 11111(a)1(providing
that the exemption from liability in damages SHALL NOT APPLY TO DAMAGES
UNDER ANY LAW OF THE UNITED STATES OR ANY STATE RELATING TO THE CIVIL
RIGHTS OF ANY PERSON OR PERSONS, including the Civil Rights Act of 1964,
42 U.S.C. 2000e, et. seq..and the Civil Rights Acts, 42 U.S.C. 1981, et.
seq.)

It should also be emphasized that the Seventh Circuit expressly declined
to recognize a medical peer review privilege in Memorial Hospital v.
Shadur, supra, 664 F.2d.1058,10639 &th Cir. 1981(per curiam) when it
rejected the privilege in a civil antitrust action and stated that The
public interest in private enforcement of federal antitrust law in this
context is simply too strong to permit the exclusion of relevant and
possibly crucial evidence by application of the Hospitals
privilege.(emphasis supplied)
Since overriding the privilege in civil rights cases under any law of
the United States or any state is only one step in the process (although
an absolutely crucial one) if a just
decision is to be reached,it is important to stress the language
previously quoted which emphasizes that if a plaintiff is successful in
proving his claim, he would Vindicate not only his own RIGHT(emphasis
supplied) to practice medicine ...., but also the strong public interest
in open and fair competition which is embodied in the Sherman Act under
which the case arises. This use of the term RIGHT and the constant
emphasis of the U.S. Supreme Court ,other Federal Courts and Congress
itself on the overriding importance of protecting civil rights under any
law of the United States clearly brings these cases within the
protection of the due process clauses of the 14th and 5th Amendments to
the U.S. Constitution so long as state action (such as the receipt of
Hill-Burton funds) on the part of private hospitals can be shown.

The liberty and property interests of persons are accorded even greater
protection throughout the legal history of the United States than the
protection against racial and other forms of discrimination which
include the Equal Protection clause of the 14th Amendment and the other
federal civil rights acts already referred to.Before discussing the
relevance of the terms liberty and property to the right to pursue a
profession and the numerous decisions of the U.S. Supreme Court which
include this and other rights within the concepts of liberty and
property of which persons(including corporations) cannot be deprived
without the due process of law (including hearings as well as full
trials), it should be noted that the Fourth Circuit Court of Appeals has
held that otherwise private,nonprofit hospitals that receive Hill-
Burton funds come within the ambit of the Fourteenth Amendment and
are,therefore, affected by state action which renders them
instrumentalities of government and thus within the reach of the Fifth
and Fourteenth Amendments to the Constitution of the United States.(See
Duffield v. Charleston Area Medical Center, Inc., 503 F. 2d 512 (4th
Cir. 1974) and Michies Jurisprudence, Hospitals and Sanitariums, Sec.
4,page 261 When a hospital has received Hill- Burton financial
assistance, the federal and state involvement is such as to subject the
hospital to the obligations of the Fourteenth Amendment, and will
sustain federal jurisdiction of a claim of denial of procedural due
process, as guaranteed by such amendment, in the withdrawal or
revocation of a doctors hospital privileges.In the case of a withdrawal
or denial of hospital privileges, procedural due process entitles a
physician to a full evidentiary administrative hearing before such
privileges may be permanently or finally terminated. See also, Sams v.
Ohio Valley Gen. Hosp. Assn, 257 F.Supp. 369(N.D. W.Va. 1966) note 7,
Michies Jurisprudence, supra at p.261: If a hospitals involvement in
the Hill-Burton program denotes state action in one case, then it must
also do so in the other. In neither case does the finding of state
action rest upon what group the plaintiffs are members of or of what
state action discrimination they specifically complain.

See also, Sams v.Ohio Valley Gen. Hosp. Assn, 413 F.2d 826 (4th Cir.
1969) at note 4 Michies Jurisprudence at page 260. Substantial federal
moneys invited and flowing into private ,nonprofit hospitals under the
Hill Burton Act entail,in return, obligations of federal constitutional
mandates. Disregard of them is state action,for the Act trusts the state
to maintain a fair and just governance of these hospitals accepting the
aid of the legislation. Of course, a regularly licensed physician and
surgeon......does have a right to become a member of the staff of a
public hospital, and in the event such right is denied, he must be
afforded an opportunity to be heard and to offer his defense to any
charges upon which such denial is based. State ex rel. Bronaugh v. City
of Parkersburg. 148 W. Va. 568, 136 S.E. 2d 783 (1964) Michies
Jurisprudence,supra, pages 258-259.
In the present case, the physician and surgeon is a duly licensed
practitioner who can bring an action in Federal Court on the grounds of
discrimination because of his race(Indian), and under the Federal
antitrust laws whether or not state actionexists. However if any
defendant comes within the ambit of state action the physician can
also sue on the grounds that his
constitutional rights under the Due Process and Equal Protection clauses
of the Fourteenth Amendment have been violated.In this particular case,
it appears that his rights to liberty and property under the Due Process
clause of both the Fifth and the Fourteenth Amendments have been
violated in the substantive as well as in the procedural sense.However,
if for some reason(for example the expiration of a statute of
limitations) he decides not to pursue his claims against hospitals in
the past, the analysis in this memorandum should prove useful if he
decides to apply at various hospitals in Virginia or other states,
Washington, D.C. or within various federal districts- some of which may
have case law which is more favorable to him than others. If he applied
at a public hospital, it would be very difficult to refuse to admit him
to the staff or deny him privileges. At private hospitals it could also
prove difficult to deny his application-particularly if the hospital
took Hill-Burton funds or other forms of government assistance
sufficient to constitute state action.

In Washington, D.C. the Due Process clause of the 5th Amendment would
apply even though D.C. is not a state and might argue that the 14th
Amendment is inapplicable. A little noted,but very important, example of
this problem occurred in 1954 when the U.S.Supreme Court used the equal
protection clause of the 14th Amendment to declare segregated public
schools unconstitutional in the states. Brown v. Board of Education of
Topeka et. al. 74 S. Ct. 686.
However the Court couldnt use the 14th Amendment to desegregate the
public schools in D.C. because D.C. is not a state and the 14th
Amendment only applied to the states. Therefore it had to use the Due
Process clause of the 5th Amendment and held that the black children had
been deprived of their liberty under it since there is no equal
protection clause or any other race-based clause in the 5th Amendment
since it was enacted long before the Civil War or the abolitionist
movement. This shows how broad and powerful the term liberty is.In this
case it encompassed education even though there is no right to education
in the U.S. Constitution.

The U.S.Supreme Court has also used the terms liberty and property
contained in the Due Process clauses of the 5th and 14th Amendments very
liberally to create the highly industrialized, corporation-dominated
country we know today, but liberals often forget (or are ignorant of)
the fact that the terms liberty and property can be used to secure basic
human rights (such as the right to pursue and hold lawful
employment,various public entitlements such as unemployment
compensation, social security, SSI, public assistance and the right to
privacy) and should be used to establish the right to health care,
housing, food and a job at a living wage or a guaranteed annual income.
Without such basic needs being met, it is absurd to say that a person
has liberty. You cant vote, exercise free speech or enjoy freedom of
religion if youre dead, dying or suffering so badly from lack of income
health care or shelter that you cant truly be said to have liberty.
This failure of the Constitution to provide for the most basic
life-sustaining needs of human beings impacts most severely on children.

They should have a bill of rights which guarantees these needs as well
as their safety whether their parents are responsible for their denial
of liberty and life itself or not.The ninth Amendment allows us to
create rights not enumerated in the Constitution. It should be used in
combination with the key concepts of life,liberty and property which are
protected by the Due Process Clauses already in the Constitution to
secure basic rights without which none of our other rights enumerated in
the Bill of Rights can be protected or enjoyed.

Personal and property rights merge in the concept of liberty. American
Constitutional law has a long history which demonstrates this
fundamental interdependence. The fact that at times the U.S. Supreme
Court, other Federal Courts and state courts have favored one essential
aspect of individual liberty over another is both a symptom and a
creator of the dominant political and economic ideology of the
particular time in our history in which they made their decisions.
However the fundamental interdependence is deeply rooted in the ideas of
our Founding Fathers,in the U.S. Constitution and state constitutions
they created and in common sense and statements of major leaders of
different political persuasions then and now.

A few years after the Civil war, the Fourteenth Amendment was enacted.
Its Due Process clause was initially interpreted narrowly as being
intended only to protect African-Americans in their newly- acquired but
very limited freedom. Ironically, if the clause had been interpreted
more broadly and logically to include property rights within the concept
of liberty, African - Americans would have taken a much greater leap
towards genuine freedom. Without land and a mule and tools, the
newly-freed slaves couldnt support themselves and could hardly be said
to be truly free. This is an early demonstration of the fundamental
interdependence between personal and property rights which makes liberty
real rather than just a phrase on a piece of paper.

The unbalanced and ineffective interpretation of the Due Process Clause
was set in motion by the U.S.Supreme Court in 1873 in the Slaughter
House cases which adopted the view that the Due Process Clause could not
be used to strike down state restrictions on property rights.( See The
American Heritage History of the Law in America by Bernard
Schwartz-published by American Heritage Publishing Co., Inc., New York,
1974. I am condensing and paraphrasing this portion of the essay from
this excellent book-beginning at page 133.) The state law involved in
the Slaughter House Cases was enacted amid charges of widespread bribery
and gave one company the exclusive right to slaughter livestock in New
Orleans. This put one thousand butchers out of
business. Although the law was held constitutional, four justices
dissented strongly,stating that: .....a law which prohibits a large
class of citizens from adopting a lawful employment, or from following a
lawful employment previously adopted, does deprive them of liberty as
well as property, without due process of law.

However over the next quarter century, this dissent developed into the
law of the land. The U.S. Supreme Court held that the power to regulate
was not the power to confiscate and laid down the rule that the Due
Process Clause permitted the courts to review the substance of
rate-fixing legislation - at least to determine whether particular rates
were so low as to be confiscatory.

Meanwhile the sate courts were also developing this doctrine of
substantive due process. In the Tenement House Cigar Case in 1885, New
Yorks highest court stated that the liberty protected by due process
meant ones right to live and work where and how he will; laws that
limit his choice or place of work are infringements upon the
fundamental rights of liberty, which are under constitutional
protection.Other state courts followed a similar due process approach
and had a direct influence on the U.S. Supreme Courts adoption of the
substantive due process concept. In Allgeyer v. Louisiana, 165 U.S.578
(1897), for the first time, a state law was
struck down by the U.S. Supreme Court on the ground that it infringed
upon the liberty guaranteed by due. The statute in question prohibited
an individual from contracting with an out-of- state marine insurance
company for the insurance of property within the state. Such a law, it
was held, deprives the defendants of their liberty without due process
of law. The liberty referred to in the Due Process Clause,said
Justice Rufus W. Peckhams opinion, embraces property rights, including
that to pursue any lawful calling: In the privilege of pursuing an
ordinary calling or trade, and of acquiring, holding and selling
property, must be embraced the right to make all proper contracts in
relation thereto. The Law in America,supra, 134 - 136.
An important reaffirmation of the fundamental interdependence of
personal and property rights without which individual liberty cannot be
attained can be found in the thorough discussion of these related rights
by the U.S. Supreme Court in Lynch v. Household Finance Corp. 405 U.S.
538, 551, 552 (1972). It is interesting to note that both Liberals
and Conservatives accept the fundamental concept of substantive due
process and affirm it when it upholds their political views and attack
it when it doesnt. It has been pointed out that the emergence of modern
large- scale industry,the protection afforded corporations as persons
under the Fourteenth Amendment,(corporations were consistently assumed
by the Supreme Court to be personsso that when the issue was raised in
Santa Clara County v. Southern Pacific Railroad in 1886,the Court
refused to hear argument on the issue-despite the fact that the issue
had been extensively briefed by counsel - and wrote no opinion on the
point. The Law in America,supra, 130-132), the consequent efforts at
control of business and of judicial review of such legislation emerges
from Allgeyer and its progeny.The Law in America,supra, at 136.
On the other hand, the doctrine of Selective Incorporation through
which almost all of the rights enumerated in the Bill of Rights(the
first ten Amendments to the U.S. Constitution) were gradually applied to
the states,(The Bill of Rights originally applied only to the Federal
Government), was accomplished by the very same method of substantive due
process. The Court used the term and concept of ordered liberty in the
identical Due Process Clauses of the 5th and 14th Amendments to include
the various rights enumerated in the Bill of Rights and apply them to
the states on the grounds that these various rights all came within the
concept of liberty. We should use these two related but different
achievements to secure new economic and personal
rights for children and adults-recognizing that the concepts of
life,liberty and property protected by the Due Process Clauses of the
5th and 14th Amendments are one of the best vehicles we have to improve
our revolution when Congress and the President find it politically
expedient to let the American Revolution stagnate and perhaps regress.
The basic economic needs and political and
spiritual rights of individuals(including children) are deeply related
to the rights of society as a whole and its ability to progress while
maintaining order and safety without unduly restricting individual
freedom. A constant balancing process is inevitable,and it is clear that
the pendulum sometimes swings too far one way which often sets off an
equally unbalanced reaction or backlash. The best way to avoid these
extremes is to recognize the fundamental interdependence of personal and
property rights and the fundamental interdependence of individual
freedom and a well-ordered society-in the U.S. and around the world.
Although U.S.law is not applicable to the rest of the world, much of our
flawed but critical attempt to achieve freedom has been copied by others
and our Constitution has been used as a model for securing human rights
by the United Nations. The U.N Declaration on Human Rights was enacted
primarily through the dedicated effort of Eleanor Roosevelt. However, it
and the subsequent expansion which includes basic human economic needs
in the U.N. Covenants reflect the fact that our Constitution never
specifically included such needs although it provides a few methods of
meeting these needs at home and abroad through fair trade and the powers
accorded Congress (particularly in Article 1, Section 8) and the powers
given to the President in Article 2 which deal primarily with foreign
policy.
Both human rights and property rights are foundations of our society,
said President John F.Kennedy. Individual property rights should be
secured because and to the extent that they coincide with social
interests. (The Law in America,supra, at 335)

Ed. Davis

Edward Gray Davis
2030 Meadowlake Ct.
Norfolk VA 23518
Tel: 757-855-4746
graydavis@surfbest.net
graydavis3838@yahoo.com
11/17/02

Clarification of Original 7 page Memo and some Suggestions

Dear Doctors Butler,Waite, Murtaugh, Day and Semmelweis members,
Thank you for your kind responses and your information. I would like to
be a part of the effort to address the peer review problem and hope Dr.
Amarasinghe will soon send you my original memo and will now have more
time to devote to this important cause.
Some of you may have the original memo which is dated 5-18-02 and begins
Dear Dr. Amarasinghe.It has my old street address on it, but the
e-mail is still correct, and I am currently staying with Dr. Amarasinghe
at 2030 Meadowlake Ct., Norfolk, VA 23518. My phone is (757) 855-4746
and the e-mail is still graydavis@surfbest.net.
The first three pages essentially deal with what physicians can do under
existing law, and page 3 is the most critical part of this analysis.
Beginning at page 4, I discuss the Due Process Clauses of the
5th(applies to the Federal Government) and the 14th(applies to the
states) Amendments.
This letter is intended to supplement and hopefully clarify pages 4-7 of
the memo and to open discussion as to how we might best proceed to
change the existing law so that the basic elements of both PROCEDURAL
and SUBSTANTIVE DUE PROCESS are applied to the peer review process.
Ideally this could be done by getting a member of Congress(and as many
other members as possible) to introduce and sponsor or co-sponsor
legislation which would accomplish this in itself or by amending the
HCQIA so as to expand the existing exception and include the basic
elements of due process so that they will apply to the peer review
process in hospitals which are public or are affected by state action
such as the receipt of Hill- Burton funds. I understand that perhaps 90%
of hospitals either receive public funds,affect interstate commerce or
receive some sort of federal or state assistance sufficient to destroy
the immunity from legal action under the U.S. Constitution which a
totally private hospital enjoys. It should be remembered that such
immunity from constitutional attack does NOT mean that truly private
hospitals are immune from attack under the federal and state civil
rights laws which I have discussed in the first three pages of the memo
and in the various letters I have written to some of you recently.
We may want to contact The Center for Constitutional Rights in New York
City (212) 614-6464 to see if they can reccomend particular legislators
who are staunch advocates of Constitutional and Civil Rights who might
be willing to draft and introduce the needed legislation. Of course the
A.C.L.U. should also be contacted, but they are usually less willing to
take the really tough cases although they may be willing to reccomend
legislators whom they consider staunch advocates of Constitutional and
Civil Rights who might be willing to introduce Federal legislation to
apply due process to the peer review system.
Due process is a phrase which has been interpreted by the Supreme Court
over the years in two different but often complementary ways, and I
think that our attempt to apply due process to the peer review system
should utilize both. The first interpretation is known as PROCEDURAL DUE
PROCESS, and it is the usual way most people think of Due Process.
This includes the right to be given notice of the charges against you,
the right to confront your accuser(s), the right to have compulsory
process for obtaining witnesses in your favor(subpoenas), the right to a
hearing or trial, the right to counsel(in criminal cases) and so on.
Obviously it is necessary to apply these basic aspects(or at least most
of them) to the peer review process.
It is important to note that procedural due process isnt confined to
trials but is now required in administrative hearings and even in most
school disciplinary proceedings. I have done many Administrative
Hearings(e.g. attempts to deny terminated employees unemployment
compenstion, S.S.I.and S.S.D.I., Social Security, Workers Compensation,
Restriction or termination of welfare and veterans benefits,etc.) and
all of them require most of the basic elements of procedural due process
(see the U.S Supreme Court case Goldberg v. Kelly(1970) the cite for
which I dont have with me but can find easily) -. although
Administrative Hearings are not full trials and dont have to include
all of the elements of procedural due process which a full trial might.
But the basics are there even though the extent of procedural due
process may vary with the severity of the charge and whether the case is
heard at a hearing or in a full trial. Of course the right to counsel
applies to criminal trials but not civil trials except to some in which
a person may lose something very significant such as loss of custody of
a child to the State Child Protective Services Agency. On the other
hand, it is surprising to many to learn how much procedural due process
is now required in even minor school disciplinary proceedings. I have
represented students in cases which can only result in temporary
suspension for up to ten days, and these proceedings involve witnesses
for and against as well as hearings before the school board. If
expulsion is a possibility, procedural due process (written in the state
law as well as in the school regulations or by-laws) usually approaches
the level accorded those involved in a full trial - including the right
to counsel. I once represented a high school senior in Court because the
school tried to deny her the right to participate in her graduation
ceremonies (although it did not try to deny her right to graduate)
because she had missed the rehearsal for the graduation ceremony because
she had gone to Pittsburgh to visit a cancer victim she had known all
her life who was about to die. Although I believe procedural due process
should be applied to school cases even when suspension rather than
expulsion is the worst that can happen (since students often frame one
another for various reasons), it is absurd to live in a system which
takes procedural due process so seriously in relatively minor cases and
denies it to physicians who are in danger of losing their careers,
reputation,health and income through a process which has severe,
negative impact on the public health simultaneously.
This severe impact on a physician illustrates the second, or SUBSTANTIVE
aspect of DUE PROCESS. I discuss this beginning at page 4 of my memo in
the second paragraph and devote most of pages 5-7 to it. I cite several
cases in the memo, but there are many others which show clearly how the
U.S Supreme Court has construed the terms liberty and property
broadly but logically to see that the SUBSTANTIVE aspect of due process
must also be protected by the Due Process Clauses of the 5th and 14th
Amendments. A good example of the Courts construction of the term
liberty in the substantive sense is found in the following language
used by the Court in Meyer v. Nebraska, 262 U.S. 390(1923). Speaking of
the libertyprotected by the due process clause, Mr. Justice McReynolds
stated:Without doubt, it denotes not merely freedom from bodily
restraint, BUT ALSO THE RIGHT OF THE INDIVIDUAL TO CONTRACT, TO ENGAGE
IN ANY ANY OF THE COMMON OCCUPATIONS OF LIFE, TO ACQUIRE USEFUL
KNOWLEDGE, TO MARRY, ESTABLISH A HOME
A HOME AND BRING UP CHILDREN.....AND, GENERALLY, TO ENJOY THOSE
PRIVILEGES LONG RECOGNIZED AT COMMON LAW AS ESSENTIAL TO THE ORDERLY
PURSUIT OF HAPPINESS BY FREE MEN. This statement not only reminds us of
Jeffersons most famous phrase in the Declaration of Independence but
reaffirms the traditional concept of Liberty as embodying not just
freedom FROM but freedom TO.
As my memo points out, the term property has also been given the same
broad but logical construction by the U.S. Supreme Court. Depriving one
of surgical privileges which severely reduces ones income, ones right
to acquire useful knowledge, ones right to pursue ones chosen career
or employment and ones privilege (or right - in Jeffersons phrase) to
pursue happiness is clearly to deprive one of both Liberty and
Propertywithout the PROCEDURAL due process required by the
Constitution, and this is exactly what the outrageous peer review
process often does and is clearly prone to repeat at will. One can
hardly imagine a more perfect example of a process which is inherently
prone to deprive a physician of his or her PROCEDURAL AND SUBSTANTIVE
RIGHTS GUARANTEED BY THE IDENTICAL DUE PROCESS CLAUSES OF THE 5TH AND
14TH AMENDMENTS.
The term Liberty as it occurs in the 14th Amendments due process
clause is so important that it was used as the vehicle through which
virtually all the enumerated rights contained in The Bill of
Rights(the first ten amandments to the U.S. Constitution) were
gradually applied and enforced on the states. As you know ,the Bill of
Rights originally and for many years applied only to the Federal
Government. However, the term Liberty is so broad and contains so many
rights if it is to have any meaning, that the U.S Supreme Court was able
to use it to apply almost all of the many, specific and different rights
contained in the first ten Amendments to the states on the grounds that
a person cannot be said to enjoy ordered liberty unless he or she has
the rights to free speech,freedom of religion,the press,
association,etc.(the First Amendment)-the freedom from illegal search
and seizure (4th Amendment) the freedom against self -incrimination or
to have private property taken for public use without just compensation
(5th Amendment), the various procedural rights which apply in criminal
prosecutions(6th Amendment) freedom from excessive bail and cruel and
unusual punishment(8th Amendment) and so on.(See paragraph 2 on page 7
of my memo). It is also useful to note that the Ninth Amendment opens
the door to the creation or recognition of rights not specifically
enumerated in the Constitution when it states that The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people. This was used along with other
parts of the Bill of Rights in the historic case Griswold v.
Connecticut,381 U.S.479;14 L. Ed. 2d. 510; 85 Sup. Ct. 1678(1965) in
which the U.S. Supreme Court struck down a Connecticut statute which
prohibited cotraception even by married persons and in doing so created
a new right of privacy. Of course this led ultimately to its decision in
Roe v. Wade protecting a womans right to terminate a pregnancy,in
consultation with her physician, during the first six months as part of
her right to privacy - the Court set the time limit based on testimony
regarding when the fetus might be viable if born. Of course the
controversy is still intense on this issue and has had an enormous
effect on Presidential elections(particularly the last one) because of
the Presidents power to nominate justices to the Supreme Court who may
be pro- choice or pro-life. Regardless of ones position on this or
the Courts overruling of the Florida Supreme Court in the Bush- Gore
election(on the grounds that the Equal Protection Clause of the 14th
Amendment would be violated if a voter in one county who imperfectly
perforated his ballot in the same way as a voter in another county had
his vote counted while the voter in the other county had his declared
invalid),this shows the continuing power of the Court and the
Constitution to affect every aspect of our lives. These powers should be
used to change the peer review system. Laws and practices can exist
indefinitely, even though they violate the most fundamental rights
guaranteed by the Constitution, unless someone challenges them through
legislation, in the courts or both.
Sincerely,

Gray Davis

Edward Gray Davis
2030 Meadowlake Ct.
Norfolk VA 23518
Tel: 757-855-4746
graydavis@surfbest.net
graydavis3838@yahoo.com
11/17/02

Dear Dr. ---,
Thank you very much for your response which Dr. Amarasinghe has given
me. The critical section of the HCQIA which allows damages is discussed
on page 3 of my memo near the bottom of the 4th paragraph. It is in bold
face and states : However, Congress created an EXPRESS EXCEPTION TO THE
IMMUNITY PROVISION IN THE CASE OF CIVIL RIGHTS ACTIONS, See Id. Sec.
11111(a)1(providing that the exemption from liability in damages SHALL
NOT APPLY TO DAMAGES UNDER ANY LAW OF THE UNITED STATES OR ANY STATE
RELATING TO THE CIVIL RIGHTS OF ANY PERSON OR PERSONS, including the
Civil Rights Act of 1964, 42 U.S.C. 2000e et.seq. and the Civil Rights
Acts, 42 U.S.C. 1981 et. seq.)
In short the HCQIA(42 U.S.C. Sec. 11111(a)1) does allow damages when the
physician alleges a violation(s)
of any civil rights law as part of his complaint. This includes the
antitrust laws. It is particularly significant that the U.S. Supreme
Court was careful to point out this exception allowing damages in its
decision in Univ. of Pennsylvania v. EEOC, 493 U.S. 182 at page 189. The
Defendants had made the argument that damages were precluded by Congress
in the HCQIA, and this caused the Supreme Court to dismiss that argument
by pointing to the EXPRESS EXCEPTION contained in Section 11111(a)1
which allows damages in the case of civil rights actions. A complaint
alleging that a peer review committees action was unfair must include a
specific complaint that the review violated one or more of the numerous
civil rights laws, and this isnt difficult to do. Of course the
plaintiff needs to show that he or she has been damaged, but this
shouldnt be difficult to do when one has lost privileges and/or income
as a result of the unfavorable review. An interesting example of a
doctor being awarded damages in an out of court settlement is the Shah
v. Memorial Hospital case which I refer to on page 2. Dr. Amarasinghe
knows him and his attorney, and we have included an article from the
Danville Register of June 1, 1989 which describes the case.
It is interesting to note that Dr. Shah received damages based on his
claim of economic discrimination - not on his claim of racial
discrimination. Both are valid civil rights claims allowed by Congress
and the U.S. Supreme Court. Such a result would not be possible if
Congress had mandated that a physician cannot collect money damages for
an unfavorable peer review peer review. The express exception which
Congress provided in 42 U.S.C. Sec. 11111(a)1 is the key, and the U.S
Supreme Court has expressly confirmed it. It may be that the physicians
who have been told by lawyers that they cannot collect damages have been
talking to lawyers who were unaware of the specific exception. You say
at the end of the day so Im not sure whether you have received this
information after talking with a lawyer or actually going to court and
pleading the case properly to include the express exception allowing
damages when you allege a violation(s) of one or more of the numerous
Federal and state civil rights laws. It could be that some physicians
have been put off by lawyers who dont think they can afford to take the
case or that the lawyer pleaded the case improperly by failing to
include the specific, express exception written by Congress and affirmed
by the U.S. Supreme Court which allows money damages to be awarded when
the complaint includes an alleged violation(s) of one or more of the
civil rights laws. The Shah case occurred in the 4th Circuit(one of the
most conservative in the country) which is probably one reason that Shah
received money damages for economic rather than racial discrimination.
However both claims are perfectly legitimate as part of the broad range
of civil rights claims that can be made and result in the award of money
damages under the HCQIA as expressly approved by the U.S. Supreme Court.
I wish you well in your efforts. Please do not hesitate to contact me or
Dr. Amarasinghe again since he knows Shah and can probably put you in
touch with his attorney, Bob Meals.
Sincerely,
Gray Davis

Re: Dr. Waite 11-3-02 By Gray Davis
2030 Meadowlake Ct. Norfolk, VA
23518 graydavis@surfbest.net

Dear Dr. Waite,
Enclosed is a legal memo I wrote for Dr. Amarasinghe last May which
explores many of the issues raised by the outrageous peer review process
and ways of resolving them in favor of the physician unfairly targeted
by his or her peers. Of course new legislation would be desirable, but
the cases cited in the first three pages of the memo offer hope -
particularly Memorial Hospital v. Shadur, 664 F.2d 1058,1062,1063 (7th
Cir. 1981) and the fact that the U.S, Supreme Court relied heavily on it
when it decided Univ. of Pennsylvania v. EEOC, 493 U.S. 182 (1990).
Most of the rest of the memo deals with the application of the Due
Process clauses of the 5th and 14th Amendments to such cases. Of course,
as you know, the U.S. Constitution cant be used against private
hospitals, but there are many private hospitals which can be attacked
using the Constitution if they receive Hill- Burton funds or other
public monies. Of course the cases in which the physician alleges a
violation of any civil right protected by Federal law(such as antitrust
law or the Civil Rights Acts) can be pursued against purely private
hospitals and their peer review committees as well as public ones.
The great power of the Due Process clauses of the 5th and 14th
Amendments lies in the fact that the U.S. Supreme Court and other courts
have often interpreted the words liberty and propertyvery broadly to
include the right to pursue any legal form of employment and other
rights without which a person can hardly be said to have liberty or
property or the means of attaining them. Many of these cases are cited
in the memo and include both liberal and conservativecases. In fact
some of the best language comes from the conservative cases which are
so anxious to protect a person or corporations liberty and/or property
rights that they include them within the protection of the 5th and/or
14th Amendments prohibition of deprivation of life, liberty or property
without the due process of law. The current peer review process can
hardly be said to conform to the standards of due process of lawas the
memo makes clear. I wish the 6th Amendment could also be used since it
includes the very things the physician under review needs- such as the
right to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense. Unfortunately,as you know, the
6th Amendments right to a speedy and public trial by an impartial jury
only applies to criminal prosecutions. Although the consequences of an
unfavorable peer review (secret, kangaroo court, retaliatory) proceeding
may often be more damaging than conviction of a crime, such peer review
proceedings arent trials of a person accused of committing a crime.
In so many ways they resemble a criminal trial without the safeguards
which the Constitution and other laws provide that I think we must
continue to attack them - not only to protect the doctors but the public
- as the Shadur case states at page 3 of my memo. That page is also
particularly important because it discusses the U.S. Supreme Courts
careful review of how Congress created the Health Care Quality
Improvement Act of 1986(HCQIA) and made an express exception to the
immunity provision in any case where damages due to the violation of any
law of the U.S. or any state relating to the civil rights of any person
or persons may have occurred to the physician. As I mentioned earlier,
this isnt confined to what one might normally think of as Civil
Rights such as racial,gender or age discrimination but includes
economic discrimination and the whole panoply of federal antitrust law.
Those who might not favor aggressive enforcement of such civil rights
laws are almost always rabid in their desire to enforce laws which
restrict competition and allow a few less competent physicians to
destroy or damage a more competent physicians career in secret so they
can keep their fees high and endanger the publics health by restricting
the supply of physicians and excluding from that supply highly competent
physicians while forcing the public to seek treatment from a restricted
supply of physicians which includes dangerous ones.
Congratulations on the crucial work you have been doing in bringing this
largely hidden danger to the attention of so many.
Sincerely,
Gray Davis

Edward Gray Davis
2030 Meadowlake Ct.
Norfolk VA 23518
Tel: 757-855-4746
graydavis@surfbest.net
graydavis3838@yahoo.com
11/17/02

Dear Ms. Szabo,
Congratulations on your article( The Virginian - Pilot, Saturday, Nov.
16, 2002, page B1) describing the efforts of Delegate Sears and members
of the Virginia Board of Medicine to empower the Board and protect the
public from dangerous doctors. However I think that the current system
is also prone to abuse of a different type which damages the public
health, damages competent physicians and protects dangerous doctors by
denying the most fundamental elements of due process to those accused of
various infractions whether the charges are true or not.
The enclosed memo attempts to deal with this widespread problem -
particularly at pages 2 and 3. There is a clear need for new legislation
which protects the public from dangerous physicians and allows
violations of antitrust and civil rights laws in the process. Sometimes
dangerous physicians are part of the good old boy club and protect
themselves and their dangerous colleagues (and their high fees) through
restricting competition by denying privileges to more competent
physicians who are unable to defend themselves (except through costly
suits in Federal Court- a remedy which most physicians are unaware of)
since there is no Administrative Procedure which accords them due
process or access to the relevant records. Although my memo deals
primarily with reform at the Federal level and the need to amend the
Health Care Quality Improvement Act of 1986 to make the basic elements
of due process mandatory rather than merely recommended, the basic issue
is the same at the state level. It is impossible to protect the public
from dangerous doctors and good doctors from prejudiced and perhaps
dangerous doctors unless these proceedings are governed by procedural
due process which culminate in a hearing before an impartial Board of
Medicine which has access to all the relevant evidence and in which the
accused can confront his/her accusers. It is shocking to discover that
the most important cornerstone of our freedom (the Constitutional right
not to be deprived of life, liberty or property without the due process
of law) is destroyed by secrecy and the use of confidentiality by
hospitals and peer review committees to block the search for truth and
open the door to a wide variety of abuses and illegalities which
adversely impact both the unfairly targetted physician and the publics
health.
Due process is applicable in Administrative law (even including school
disciplinary proceedings), and this is critical to fundamental fairness
as well as to protecting the public by providing an impartial process
which is our best method for determining which physicians are dangerous,
which are competent and which may have unfairly labeled physicians
superior to themselves as dangerous by removing or denying them
privileges in secret out of prejudice, the impulse to retaliate,
jealousy or their desire to make more money at the publics expense by
lowering the supply of competent physicians in the area.

Sincerely,
Gray Davis