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February 14, 1985

CLEBURNE COUNTY HOSPITAL, SAM B. RECTOR, Individually and as Administrator of Cleburne County Hospital, V. H. Dickson, Individually and as Chairman of the Board of Governors of Cleburne County Hospital, LARRY CRABTREE, Individually and as Secretary of the Board of Governors of Cleburne County Hospital, D. E. BARNETT, THOMAS WHITAKER, J. M. STUART, B. J. McNAIR and OSCAR PATCHELL, Individually and as Members of the Board of Governors of Cleburne County Hospital, DELANE WRIGHT, Individually and as Ex-Officio Member of the Board of Governors of the Cleburne County Hospital, W. M. WELLS, MICHAEL E. BARNETT, MAX BALDRIDGE, WILLIAM H. NEVINS, NATHAN L. POFF, DONALD H. McCLANAHAN, HARROL L. CRANFORD, JOE B. SCRUGGS and ROBERT CLARK, Individually and as Members of the Medical Staff of Cleburne County Hospital, ROBERT R. WILSON and H. C. WILLIAMS, Individually and as Members of the Dental Staff of the Cleburne County Hospital

The opinion of the court was delivered by: HOWARD

 Plaintiff, Dr. Wayne Smith, instituted this proceeding on the 26th day of April, 1977, asserting that the defendants, Cleburne County Hospital, the Board of Governors -- V. H. Dickson, Chairman, County Judge Delane Wright, Ex-Officio Member, Larry Crabtree, Secretary, D. E. Barnett, Thomas Whitaker, J. M. Stuart, B. J. McNair and Oscar Patchell, members -- and the Medical Staff consisting of Doctors William M. Wells, Michael E. Barnett, Max Baldridge, William H. Nevins, Nathan L. Poff, Donald H. McClanahan, Harral L. Cranford, Joe B. Scruggs, Robert Clark, Steve Blackburn, Jim Ashabramer, Robert R. Wilson and H. C. Williams, denied him medical staff privileges at the Cleburne County Arkansas Hospital because of public and private statements he made criticizing the quality of medical service afforded patients at the hospital and recommending that the standard of patient case be improved all in violation of his right to free speech as secured under the First and Fourteenth Amendments to the Federal Constitution.

 Defendants, on the other hand, have asserted that Dr. Smith voluntarily withdrew from the medical staff of the hospital and further, pursuant to this Court's order directing Dr. Smith to invoke available administrative remedies, defendants denied Dr. Smith's application for reinstatement because of Dr. Smith's personality conflicts with the medical and nursing staff, and the likelihood that the quality of patient care would be diminished if he were reinstated.

 The Court concludes that the termination of Dr. Smith's medical staff privileges at the Cleburne County Hospital was not voluntary, but was revoked by defendants because of Dr. Smith's public criticism of the standard of patient care at the hospital rather than confining his criticism "in house". In other words, defendants' action was in direct retaliation against Dr. Smith for engaging in First Amendment protected activity, as hereinafter discussed and analyzed.

 Plaintiff has asserted the following jurisdictional grounds: 28 U.S.C. §§ 1343(3) and 1343(4); 42 U.S.C. §§ 1983 and 1985(3). This action was initially instituted as a class action in behalf of doctors, nurses and medical care patients in Cleburne County, but proceeded to trial as an individual action. *fn1"


 The Cleburne County Hospital is a facility owned and operated by Cleburne County, Arkansas, and affords extensive medical and surgical services to residents of Cleburne County.

 The business affairs of the hospital are under the supervision and control of a Board of Governors consisting of eight persons -- a chairman, an ex-officio member who is the incumbent county judge, a secretary and five members. The Board of Governors, pursuant to the by-laws of the Cleburne County Hospital are appointed by the county judge. *fn2"

(a) To adopt suitable by-laws.
(b) To select a competent hospital administrator and exercise general supervision over his duties.
(c) To approve the policies established by the hospital administrator.
(d) To approve the equipment and facilities necessary for the proper operation of the hospital.
(e) To select and approve competent and qualified medical staff and exercise general supervision over their duties and responsibilities.
(f) To approve the policies and recommendations of the medical staff.
(g) To require accepted recognized professional medical standards in providing health care services.
(h) To require businesslike management of the financial affairs of the hospital and to employ an annual audit and to provide adequate financing by securing sufficient income.
(i) To review and act on the recommendations of all committees.
(j) To cooperate with the medical staff of the Cleburne County Hospital in the adoption and enforcement of the medical staff by-laws which shall contain, among other things, rules for granting and revoking staff appointments, granting, limiting and revoking professional privileges, election of medical staff officers, establishment of departments and committees and meetings thereof, patient care and preparation of patient records and teaching medical personnel.
(k) To attend to all other matters not enumerated but required by the law of the State of Arkansas.

 The by-laws of the hospital further authorize the Board of Governors (Board) to establish a Joint Conference Committee consisting of a chairman, vice chairman, secretary of the Board, the chief administrator and the executive officers of the medical staff. The Joint Conference Committee is empowered to review recommendations and hear complaints from hospital personnel and staff physicians and submit to the Board the Committee's recommendations on those matters submitted for review.

 The by-laws divide the medical staff into honorary, consulting, active, courtesy and dental members. The hospital medical staff members are appointed annually by the Board based on the recommendations of the members of the medical staff. The fiscal year of the hospital commences on October 1st and ends September 30th of each year. Thus, appointments to the medical staff are made on October 1st of each year and extends to September 30th.

 The plaintiff, Dr. Wayne Smith, commenced the general practice of medicine in July, 1968, in Cleburne County, Arkansas. The Cleburne County Hospital is the only hospital where plaintiff has applied and acquired medical staff privileges. *fn3"

 From October 1, 1972, to September 30, 1973, plaintiff served as Vice Chief of Staff of the hospital; and from October 1, 1973, to September 30, 1974, he served as Chief of the Medical Staff.

 On or about July 2, 1976, plaintiff began to criticize the quality of the patient care at the Cleburne County Hospital. Plaintiff's complaints were discussed with the medical staff, the Board, the Chief Administrator of the hospital, citizens of Cleburne County and the local news media.

 Plaintiff's public expression, and particularly his statements to the news media, were registered after considerable press coverage was given to public meetings held by concerned citizens and in response to public pronouncements by Board members and members of the medical staff. For example, the Arkansas Sun, in its Wednesday, October 27, 1976, edition reported that "three concerned citizens" advised the Board of a public meeting held by concerned citizens in Cleburne County "for the purpose of discussing the Cleburne County Hospital." The matters discussed by the concerned citizens were: (a) complaints regarding the non-enforcement of by-laws with reference to surgical schedule at the hospital, (b) failure of nurses to attend to patients' needs; (c) concern about the finances of the hospital; (d) the decline in census of the number of patients; (e) concern "over worker morale, lack of communication and employee complaints"; (f) "public opinion of patient treatment which has to do with hospital operations and the medical staff"; (g) concern about "Dr. Smith's expressed plan to resign from the staff."

 According to the news article, certain Board members acknowledged that there were problems at the hospital, but are "under correction. The reins were down on the ground, they have been picked up." (PX 69). Other Board members expressed surprise at the group's "meeting and their alarm."

 The news article of October 27th, as well as other articles on the subject in the Arkansas Sun and the Cleburne Times, generated numerous letters to the editorial section of the local newspapers expressing views supportive of Dr. Smith and equally as many expressing support for the Board. These letters naturally created further interest in the patient care at the hospital resulting in additional meetings between Board members, the administrator and citizens of Cleburne County.

 On December 20, 1976, the Board requested the Arkansas State Health Department to conduct an inspection and survey of the hospital facilities and the quality of patient care.

 On December 23, 1976, the following statement appeared in the Cleburne County Times which was endorsed by ten physicians who possessed staff privileges at the hospital:

The Cleburne County Hospital has received criticism from one member of the Medical Staff during recent weeks. We would like to make it clear to our patients, and to all county residents, that we are proud of our hospital and its employees. We feel confident that the majority of the Medical Staff gives their full cooperation and support to the Hospital Board of Governors, the Administrator, and other employees. We feel that our patients receive care that is not only adequate, but in many instances, superior, compared to other hospitals in the state. We feel that the majority of the nursing personnel at Cleburne County Hospital are dedicated, efficient and compassionate human beings. Finding fault is never difficult to do in any institution, and ours is no exception. However, we are determined to see that the faults we find are cured as quickly as possible by working within the organization, not by withdrawing from it.
We expect our patients to tell us if they find a problem at our hospital which has escaped our attention, secure in the knowledge that we will do our best to keep problems to a minimum and to correct those quickly which are found.
As taxpayers, you have every right to expect that a modern, clean, well-equipped, well-staffed hospital is provided for you, and that that hospital is managed in a business-like, efficient manner. We feel that your expectations are fulfilled in our hospital. *fn4"

 On December 29, 1976, Dr. Smith wrote a letter to Board members Dickson, Reed, Crabtree, Barnett and Whitaker, stating essentially that the hospital is "very inadequate" and that their indifference contributes to the problem and that each, in effect, should resign from the Board.

 On January 27, 1977, Dr. Smith, during a Board meeting, stated that unless the Board took immediate steps to resolve the problems at the hospital, he would take the matter to court and further indicated his interest in seeking the public office of Cleburne County Judge.

 On February 1, 1977, after the requested survey was conducted, the Arkansas Department of Health sent the following communication to the Administrator of the hospital:

Dear. Mr. Rector:
Reference is made to an inspection of Cleburne County Hospital on January 31, 1977 by representatives of this Division. The following items are noncompliances with the Rules and Regulations for Hospitals and Related Institutions in Arkansas:
I. Dietetic Services:
1. The hot food for the noon meal of January 31 was prepared too far in advance of the meal to be served.
2. The pot washing procedures were incorrect as only two vats of the three compartment sink were used for wash and rinse. The temperature of water for rinse registered 155 deg. F. and the temperature should be 170 deg., preferably 180 deg. F.
3. Cartons of milk in the refrigerator were observed to be outdated.
II. Medical Staff:
1. All phone orders are not co-signed within 24 hours. According to Medical Staff by-laws and Arkansas Rules and Regulations for Hospitals all phone orders must be co-signed within 24 hours by the physician making the order.
III. Medical Reports: None
IV. Pharmacy:
1. Drug cabinets and refrigerators on the Nursing Units have not been thoroughly checked by the pharmacist and nurses. Some out-dated drugs were found in each of these drug storage areas: the nurses' station, Coronary Care crash cart, Operating Room, Emergency Room, and the infant emergency tray for the Delivery Room.
2. Locked storage was not provided for drugs, including some controlled substances, in the Delivery Room and the Operating Room. This is especially important because these areas are unattended two shifts a day.
3. Pharmacy records did not include quantities dispensed as floor stock or as individual patient drugs. Adequate control must be maintained on prescription drugs through complete records.
4. Six of nine current charts reviewed indicated that stop order policies were not being followed. None of the patient charts had notes on the front asking the doctor whether certain drugs were to be discontinued or reordered.
5. The Pharmacy and Therapeutics Committee has held only two of the required quarterly meetings (January and November, 1976).
V. General Administration & Physical Plant:
1. The By-Laws of the Governing Body should be amended by amendment to include an overall statement of an overall admission policy for the facility using part II, Section I, Para C-8, Rules and Regulations for Hospitals in Arkansas as a guideline.
2. There was observed some electrical medical equipment wired with two wire power cords. All equipment wired with two wire power cords should be rewired with a three wire power cord to provide a grounded circuit.
3. There was infant cribs, a stretcher and a crash cart stored in the O.B. area corridor. Egress should not be hampered in any corridor and corridors should be ...

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