SOBELOFF, Circuit Judge:
Plaintiffs, a Negro pediatrician and two of his patients, brought this class action for an injunction against the racially discriminatory policies and practices of the Riverside Hospital in Newport News, Virginia.
Dr. George C. Cypress, the physician-plaintiff, is a "board-certified" pediatrician
The District Court held that neither the physician-plaintiff nor the patient-plaintiffs were entitled to relief, but offered to refrain from entering a final decree until Dr. Cypress and a Negro surgeon, similarly denied staff privileges, had complied with his suggestion that they reapply to the hospital within sixty days. The plaintiffs asserted, however, that the procedure outlined by the District Court would not adequately protect their rights from abuse and requested that a final decree be entered. The District Court thereupon dismissed the action on the stated grounds that the plaintiffs had failed to prove that Negro doctors were denied staff privileges "for reasons of race alone," and that plaintiffs had no standing to complain with respect to discriminatory room assignments.
The record discloses that Riverside Hospital is a modern, 323-bed, state-regulated hospital, which has received approximately $2,250,000 in federal funds for construction under the Hill-Burton Act.
Testimony showed that Dr. Cypress first applied for staff privileges in April, 1961, and was rejected. When he reapplied a year later his application was again denied. Dr. Cypress is the only pediatrician in the community who has been denied staff privileges at Riverside Hospital; all six of the white pediatricians in the community are on the staff. Dr. C. Waldo Scott, a Negro "board-certified" surgeon, applied for membership on the Riverside Hospital staff in March, 1963; he too was denied staff privileges. Seventeen of the eighteen white surgeons in Newport News are members of the staff, although only eight of them are board-certified.
No grounds were given for rejecting the applications of the two Negro doctors. Dr. Cypress wrote the hospital requesting a conference to discuss the reasons for the denial, but the hospital failed even to accord him the courtesy of a reply, and he instituted the present action in October, 1963. In its answer, the hospital contended that the denial of staff privileges "was for just and good cause, and was not on the basis of race," yet at no point in the pre-trial proceedings or at trial did Mr. St. Clair, the hospital administrator and the defendants' only witness, assign a reason for the rejection of either Negro doctor's application.
The hospital's by-laws prescribe the procedures for appointing a doctor to the medical staff. The application is first presented to the Credentials Committee, which reviews the application, and if it is approved, it is submitted to the specialty staff to which the applicant is applying. The application is then routed to the General Staff together with the recommendations of the specialty staff. The General Staff then votes on the application, and its recommendations are transmitted to the Board of Managers, which has never failed to endorse the medical staff's recommendation.
Dr. Cypress' application was transmitted by the pediatrics staff without recommendation. The hospital administrator conceded that this was the first time, to his knowledge, that a specialty staff had acted in this fashion. Dr. Scott's application was transmitted by the surgical staff with the recommendation that it be rejected.
Several prominent experts in their respective fields testified at the trial to the outstanding professional qualifications and skill of the two Negro physicians.
In the court below, and in this court, the appellees contended that the proceeding brought by Dr. Cypress and the two patients is not a proper class action. However, we agree with the District Court that Dr. Cypress could appropriately bring such an action. Although Drs. Cypress and Scott are the only Negro physicians in the community who have applied to Riverside Hospital, two other Negro physicians expressly testified that they were interested in obtaining staff
The ineluctable conclusion, therefore, is that all Negro physicians practicing medicine in the Newport News area, and not only the two individuals who already have applied for staff privileges, should be considered members of the interested class. We further are of the opinion that eighteen is a sufficiently large number to constitute a class in the existing circumstances.
The hospital also argues that appellants have misjoined distinct classes. We find no merit in this contention. The record plainly establishes that numerous patients of Drs. Cypress and Scott desired to be admitted to what all parties as well as the District Court agree is the best hospital in the area in view of its modern facilities. These patients, however, are unreasonably forced to a hard choice. They must elect either to forego treatment at that hospital or relinquish their personal physicians, since patients can be admitted to Riverside only on referral by members of the staff. It is obvious, therefore, that the right of Negro doctors to be admitted to staff privileges at Riverside is of great concern to the infant patients and to others.
Turning now to the merits of the dispute, we think that the District Court correctly articulated the rule to be applied:
251 F.Supp. at 673. The court noted that the inference disappears when a reasonable explanation is given showing that denial of staff membership is not because of the race, creed, or color of the applicant. However, the District Court failed to apply the rule properly and fell into plain error when it found that the plaintiffs had not proved the existence of discrimination. The hospital has made a bald assertion that the Negro doctors were denied staff privileges "for just and good cause" but, significantly, at no point in the proceedings has it offered any reason for the rejection of the applications, although it was afforded ample opportunity to do so.
The undisputed fact is that nearly 70% of the white physicians in the community but no Negro physicians are on the staff of Riverside Hospital. (The percentage is even higher, of course, for pediatricians and surgeons, since all white pediatricians and all white surgeons but one are members of the staff.) This circumstance, coupled with the rejection of two Negro physicians possessing outstanding qualifications by an all-white medical staff voting by secret ballot, and in the absence of any evidence of any non-racial ground for the exclusion, compels the inference that they were barred because of race. This inference is further buttressed by the fact that Riverside concededly takes race into account in other aspects of hospital administration, it being admitted by
Highly pertinent to the question before us is our decision in Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189 (4th Cir. 1966). There we held that Negro teachers were dismissed on racial grounds when they had shown that they met all objective qualifications, and the school board failed to produce any evidence meriting dismissal on valid nonracial grounds. We said:
364 F.2d at 192. (Emphasis supplied.) To cast this burden upon the plaintiffs would seriously attenuate the doctrine of equal access to federally-aided health facilities — the doctrine expounded in Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963) — by effectually limiting relief to the rare case where the defendant is willing to admit its wrongdoing.
We perceive no justification for the District Court's requirement that the rejected Negro physicians should again run the administrative gauntlet. We think the suggested procedure lacking even the rudiments of due process. As proposed by the District Court, a rejected applicant was permitted to request a "hearing," "at the expense of said applicant," before the General Staff, provided he first
251 F.Supp. at 674. The court specified that the so-called "conference" or interrogation was to be conducted behind closed doors without the assistance of attorneys. "It is not a matter of sworn testimony, burden of proof, etc., but such a `hearing' * * * will enable the General Staff to question the applicant at length." Ibid. (Emphasis supplied.) Nor was there to be any possibility of judicial review of the hospital's final action. The District Court concluded its description of the contemplated proceeding as follows:
Ibid. We unequivocally reject the notion that Negro applicants are to be subjected to such procedures before their Fourteenth Amendment rights can be vindicated.
In the case before us, the manner in which hospital appointments are made — by approval of a three-fourths majority of the all-white General Staff voting by secret ballot — is clearly impermissible in light of our decision in Hawkins v. North Carolina Dental Soc., 355 F.2d 718 (4th Cir. 1966), because it manifestly burdens Negro but not white applicants. In Hawkins, we condemned a requirement of recommendations from two members of a dental society, none of whose members was Negro:
The plaintiffs complain not only of the hospital's discriminatory policy toward Negro physicians; they also assert that the hospital considers the factor of race in making room assignments to patients. The hospital administrator himself admitted that the medical floors are only integrated "to an extent," and that "we do not put Negro and white patients in the same room." The administrator testified that he might put Negro and white patients in the same room on the pediatrics floor, but only after "I personally consulted with the parents of the two children and determined that I was not going to have any conflict."
The District Judge considered himself without power to rule on this aspect of the case, believing it had not been sufficiently developed, and because he thought plaintiffs lacked standing. It is settled, however, since our decision in Rackley v. Board of Trustees of Orangeburg Regional Hosp., 310 F.2d 141 (4th Cir. 1962), that the plaintiffs do have standing to raise this question. There, we permitted plaintiffs to attack segregated ward and room facilities although the plaintiffs bringing suit were an outpatient and her mother. The two patient-plaintiffs in the instant case are suffering from sickle cell anemia — a chronic disease requiring recurrent hospitalization for blood transfusions. The mother of one testified that her child had once before been at Riverside Hospital and that when further hospitalization became necessary, she preferred to have her child in Riverside because of its modern treatment facilities. Where plaintiffs allege that the hospital assigns rooms on a discriminatory basis, and the hospital administrator unequivocally confesses the policy of discrimination, a patient should not have to wait until he has been segregated before he will be heard to attack the unlawful practice.
In a colloquy with plaintiffs' counsel, the District Judge asked whether it was "discrimination per se merely because a hospital has deemed fit to place white patients in one ward, Negro patients in another ward?" We answer that it is. Any distinction made on the basis of race in a publicly-supported institution is a patent violation of the law, not to be tolerated by a court that is controlled by the Constitution of the United States.
On July 7, 1966, after the trial in the District Court and during the pendency of the appeal, Dr. Cypress applied a third time for membership on the Riverside Hospital medical staff and on October 20, 1966 was granted active staff privileges.
As appellants point out, it was only after a five-year struggle, including a costly lawsuit, to obtain privileges readily accorded their white counterparts, that the hospital found — a few short weeks before the case was heard on appeal — that the unspecified "just and good cause" which assertedly warranted the exclusion of Dr. Cypress was no longer significant. Such a last minute change of heart is suspect, to say the least. We recently had occasion to observe in Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966), under somewhat different circumstances, that "protestations of repentance and reform timed to anticipate or to blunt the force of a lawsuit offer insufficient assurance" that the practice sought to be enjoined will not be repeated. See United States v. Oregon State Medical Soc., 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1952).
The need for injunctive relief is not to be judged in a vacuum. Just as it is an equitable axiom that an injunction will not issue merely because no demonstrable harm will result from its issuance, so an equity court will unhesitatingly grant this relief where in its estimation the circumstances reasonably indicate its necessity. Our appraisal must take into consideration more than the single, tardy, reluctant, and incomplete step — the admission of Dr. Cypress. We measure this against its background: the persistent refusals of the medical staff, voting by secret ballot, to approve Dr. Cypress' application; the continuing failure of the defendant to this day to take any action with respect to Dr. Scott; the absence of any further action to remove segregation bars against Negro patients and publicly to renounce the racial policy to which it has long adhered. It cannot be said upon this record that full compliance with the law is assured without the issuance of an injunction.
Nor is the injunction rendered superfluous by certification of the hospital by the Department of Health, Education, and Welfare as one eligible to participate in federally-assisted programs. In support of its motion to dismiss, appellees point out that the Office of Equal Health Opportunity (OEHO) has advised the hospital that it is in compliance with Title VI. Appellees, arguing that Title VI is as inclusive and effective as any decree of this court in the protection of appellants' rights, would have us hold that an injunctive order is unnecessary. In support of this proposition, it was represented that "the Office of Equal Health
Reversed and remanded for the entry of an order of injunctive relief.
TESTIMONY RELATING TO THE QUALIFICATIONS OF THE TWO NEGRO PHYSICIANS WHOSE APPLICATIONS WERE REJECTED BY THE HOSPITAL
I. Dr. George C. Cypress, Jr.
Dr. Allan Butler, Professor Emeritus at Harvard Medical School, former Chief of Children's Services at Massachusetts General Hospital, and past president of the American Pediatric Society, not only reviewed Dr. Cypress' educational record and his training, but also directly observed Dr. Cypress treat patients both at his office and at the hospital, and examined the records of several of Dr. Cypress' patients. Dr. Butler testified that this observation of the Negro physician was
Record, vol. II, p. 95. Based on this "first-hand contact" as well as his review of Dr. Cypress' education and training, Dr. Butler stated that
Record, vol. II, p. 96.
Dr. Colvin W. Salley, Health Director of Newport News and former commanding officer at the Fort Eustis, Virginia army hospital, where he was Dr. Cypress' supervisor when Dr. Cypress was employed at that hospital as a civilian pediatrician, also testified concerning Dr. Cypress' abilities.
Record, vol. II, p. 190.
II. Dr. Charles Waldo Scott
Dr. Samuel Standard, Director of Surgery at Morrisania Hospital in New York and professor of clinical surgery at New York University and Bellevue Medical Center, was able to observe Dr. Scott in his practice as well as review his experience and training.
Record, vol. II, p. 170. His opinion of Dr. Scott, based on this survey, was that
Record, vol. II, pp. 165-169
ALBERT V. BRYAN, Circuit Judge (dissenting in part):
I depart from the opinion of the Court only in one aspect. It accords no tolerance whatsoever to the opinion of the doctor in the assignment of rooms.
I think the opinion should contain an acknowledgment of the necessity in certain instances of varying the assignment rule laid down by the Court, that is something in the following sense: If in the judgment of the attending or hospital physician or surgeon, it would be detrimental to the recovery of a patient, because of his actual though unfounded prejudice, to be placed or remain in a ward or room with a patient of another race, then the hospital by removing the objecting patient to another ward or room will not contravene the equality of treatment enjoined in this opinion.
I have never understood that the Due Process or Equal Protection clauses would deny a patient, whether medical or psychiatric, any innocuous treatment which might be honestly advised by his physician or surgeon for his physical or mental improvement. Nor have I ever thought the Constitution was blind to the realities of illness, actual or emotional.
Such intimately personal considerations are left to the decision of those skilled in the healing arts and particularly sensible to the feelings of the sick person. In not recognizing this sound precept here — in assigning rooms on the basis of the Fourteenth Amendment without regard for the doctor's directions — I believe the Court is doing a disservice to the Constitution, to the efforts of the hospital and to the recovery of some patients.
This question, it seems to me, is squarely before the Court and now. The opinion allows no exception for injurious
I dissent because the Court bars the hospital from accepting a professional and scientific judgment, rather than the Constitution, in alleviating a patient's sufferings.
U.S. Dep't of Health, Education and Welfare, News Release No. HEW-M75, Aug. 11, 1966. (Emphasis supplied.) See also U.S. Dep't of HEW, Report on Civil Rights Compliance: Atlanta, Ga. Hospitals, Aug. 1966, in which it was noted that a recent survey of Negro physicians who had not applied to formerly white hospitals indicated that "some of these Negro physicians are unconvinced that racial bias has actually been removed."
Record, vol. II, p. 76 (Emphasis supplied.)
251 F.Supp. at 672. (Emphasis supplied.)
The HEW guidelines for establishing compliance with Title VI of the Civil Rights Act of 1964 explicitly state that patients are to be assigned to:
Furthermore, in contrast to the declared policy of Riverside Hospital's administrator, Secretary Gardner and Surgeon General Stewart have emphasized that "patients may not be asked if they would be willing to share a room with a person of a particular race." Statement by Secretary of HEW Gardner and Surgeon General Stewart in 40 Hospitals, No. 11 (1966).
The Fifth Circuit, in a recent decision involving school desegregation plans, raised the question as to the weight courts should give to the HEW Guidelines. United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. Dec. 29, 1966), rehearing en banc pending. Judge Wisdom answered this question by declaring that the guidelines were the "minimum standards," and reaffirmed the Fifth Circuit's position, first stated in Singleton v. Jackson Municipal Separate School Dist., 355 F.2d 865, 869 (5th Cir. 1966). There it was said that "in certain respects, HEW standards may be too low to meet the requirements established by the Supreme Court and this Court; we doubt that they would ever be too high." But it was added that regardless of what the guideline may be, courts may "not abdicate [their] judicial responsibility for determining whether a school desegregation plan violates federally guaranteed rights." United States v. Jefferson County Bd. of Educ., 372 F.2d at 852. Similarly, in the case before us, while we accord great weight to the HEW Guidelines for hospitals, our decision is based on our independent determination that Riverside's practice of assigning rooms on the basis of race does not comply with constitutional standards.
Statement by Secretary Gardner and Surgeon General Stewart, supra n. 15 (Emphasis supplied.)
[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. * * * The defendant is free to return to his old ways. [Footnote omitted.] This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. * * * Along with its power to hear the case, the court's power to grant injunctive relief survives discontinuance of the illegal conduct. [Citations omitted.] The purpose of an injunction is to prevent future violations * * *.
Of 39 hospitals visited by the U.S. Commission on Civil Rights last year, all but two had filed assurances of compliance with HEW, yet only 11 of them had significantly altered discriminatory patterns of patient assignment and staff appointments. The Commission found that the remainder continued to operate on a racially discriminatory basis despite the fact that they had signed assurances of compliance. One hospital, for example, which had signed such an assurance "had all its Negro patients segregated in the basement of the hospital building and maintained complete segregation in all its facilities." U.S. Comm'n on Civil Rights, Title VI: One Year After, at 11 (1966). The Commission found some hospitals converting their ward and other mulitple-bed facilities into private rooms, resulting in substantially fewer accommodations while, at the same time, they were constructing additions to the hospital, financed with Hill-Burton funds. Ibid. A hospital in Louisiana barred from its premises both the Commission investigators and HEW officials investigating complaints, yet no corrective action had been taken as of the date the Commission's report was written. Id. at 13. The Commission concluded from its survey that:
Id. at 14.
Hospitals have attempted by various means to avoid compliance, without giving the appearance of non-compliance and thus risking a cut-off of funds. See references to the "HEW Shuffle" in Address by Robert Nash, Chief of OEHO, at American Public Health Ass'n Annual Meeting, Nov. 4, 1966.
We do not mean to imply that Riverside Hospital has used or intends to use such practices to avoid compliance. We cite this merely to indicate that approval by the Department of Health, Education, and Welfare is not synonymous with complete compliance with the law.