{ "id": 5248192, "name": "Herbert W. Virgin, Jr., Plaintiff-Appellant, v. American College of Surgeons, a Corporation, Paul Hawley, Director of the American College of Surgeons, and Michael L. Mason, Secretary of the American College of Surgeons, Defendants-Appellees", "name_abbreviation": "Virgin v. American College of Surgeons", "decision_date": "1963-05-29", "docket_number": "Gen. No. 48,758", "first_page": "352", "last_page": "371", "citations": [ { "type": "official", "cite": "42 Ill. App. 2d 352" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 ALR2d 1387", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "231 P2d 6", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "37 Cal2d 134", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4407000 ], "opinion_index": 0, "case_paths": [ "/cal-2d/37/0134-01" ] }, { "cite": "137 NE2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill App2d 258", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5159883 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/11/0258-01" ] }, { "cite": "144 NE2d 446", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill App2d 173", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5173061 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0173-01" ] }, { "cite": "75 Ala 248", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8491546 ], "opinion_index": 0, "case_paths": [ "/ala/75/0248-01" ] }, { "cite": "20 ALR2d 536", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "43 Harv L Rev 993", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1930, "pin_cites": [ { "page": "998-1008" } ], "opinion_index": 0 }, { "cite": "156 NYS 780", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3268857 ], "year": 1915, "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nys/156/0780-01" ] }, { "cite": "43 HarvL Rev 993", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 1930, "pin_cites": [ { "page": "1022" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1275, "char_count": 32653, "ocr_confidence": 0.533, "pagerank": { "raw": 3.9077311346255306e-07, "percentile": 0.9020147506669308 }, "sha256": "62e06954d145d4ba8be065800a5bd3106685cc8242f1190d1d8410e02e79afbf", "simhash": "1:8a45f5c30b35d82f", "word_count": 5425 }, "last_updated": "2023-07-14T21:56:26.410241+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURKE and FRIEND, JJ, concur." ], "parties": [ "Herbert W. Virgin, Jr., Plaintiff-Appellant, v. American College of Surgeons, a Corporation, Paul Hawley, Director of the American College of Surgeons, and Michael L. Mason, Secretary of the American College of Surgeons, Defendants-Appellees." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE BRYANT\ndelivered the opinion of the court:\nThis is an appeal from a judgment in actions at law and in chancery brought by plaintiff, Dr. Herbert W. Virgin, Jr., against the American College of Surgeons, a corporation, and against individual defendants, Paul Hawley, Director and Michael L. Mason, Secretary, of said corporation. The action at law was for the issuance of a writ of mandamus commanding all defendants to reinstate plaintiff as a Fellow of the American College of Surgeons and to expunge from its records all matters relating to the expulsion of plaintiff.\nThe Court found the issues against the plaintiff and in favor of all defendants, denying plaintiff\u2019s petition for writ of mandamus and dismissing plaintiff\u2019s application for declaratory judgment.\nPlaintiff at the time of the trial was 53 years of age. He is married, has three children, two boys and one girl, then 23, 21 and 18 years of age. He is a graduate of Northwestern University Medical School and is a member of the Dade County Medical Society, Florida Medical Association, the American Medical Association, the Southern Medical Association and a Fellow of the Southeastern Surgical Congress, the American Academy of Orthopedic Surgeons, the International College of Surgeons and the defendant College.\nHe has been an orthopedic surgeon for 24 years, has practiced orthopedic surgery in Florida since 1940, and in Miami since 1943. Prior thereto he practiced in Wisconsin and was licensed there and in Illinois. He is frequently called upon to testify in court because of the nature of his practice. Over the five years preceding trial of this case, his testimony has been about 55-60% for the defense. He was recognized by the President of the Greater Miami Chapter of the College as \u201cprobably the best technical orthopedic surgeon in Miami.\u201d\nDr. Virgin applied for Fellowship in the defendant College in 1940. After a thorough investigation into his professional qualifications and moral and ethical standing, he was admitted to the College as a Fellow in 1947.\nDefendant, the American College of Surgeons, is incorporated as a corporation not-for-profit under laws of Illinois. Its principal place of business is in Chicago, Illinois, where it owns property of substantial value. Defendant, Paul Hawley, is the Director and defendant Michael L. Mason, is the Secretary of the American College of Surgeons.\nThe objects of the American College of Surgeons, as stated in its articles of incorporation, are:\n\u201cThe purpose or purposes for which the corporation is organized is to establish and maintain an association of surgeons, not for pecuniary profit but for the benefit of humanity by advancing the science of surgery and the ethical and competent practice of its art; by establishing standards of hospital construction, administration and equipment, and all else that pertains to them; by engaging in scientific research to determine the cause, nature and cure of disease; by aiding in better instruction of doctors; by formulating standards of medicine; and methods for the improvement of all adverse conditions surrounding the ill and injured wherever found. To accomplish these benevolent and charitable aims, it shall be within the purposes of this corporation to use those means which from time to time may seem to it wise, including research, education, the establishment and maintenance of libraries, museums, and other agencies or institutions appropriate hereto, and the cooperation of any other such activities, agencies or institutions already established or which may hereafter be established.\u201d\nThe authority for governing the American College of Surgeons is vested solely in the Board of Regents of the College. Dr. I. S. Ravdin was the Chairman of the Board of Regents and Dr. Loyal Davis was Vice-Chairman. Dr. Paul Hawley, Director of the College, is the chief executive officer of the College and in general charge, under the bylaws, of all matters of administration of the College under the direction of the Board of Regents. He is head of the College\u2019s full time staff but not a member of the Board of Regents. Prior to becoming Director he was chief executive officer of the National Blue Shield and Blue Cross insurance corporations for two years. Prior to that he was Chief Medical Director for the Veterans\u2019 Administration for 26 months. He served for 30 years in the regular Army during which he had been involved in 8 or 10 courts martial in the capacities of witness, part of the court and defense counsel. He has been a physician for 45 years but is not a surgeon, the extent of his medical practice being \u201clargely epidemiology and tropical medicines.\u201d\nDr. George Stephenson is an Assistant Director of the College and all \u201cjudiciary problems\u201d come within his department. Dr. Robert Myers is also an Assistant Director for the College. Among other things, he conducts investigations on behalf of the College.\nThe initial contact in getting the College to investigate Dr. Virgin was made in late 1954 when Dr. Arthur Welland discussed the Virgin \u201csituation\u201d with Dr. Stephenson at a State Credentials Committee meeting in Jacksonville, Florida.\nThe personal antagonism or feud between Weiland and Virgin for many years was known. Weiland and Virgin often testified on opposite sides of personal injury suits, Virgin for plaintiff and Weiland for defendant.\nAfter the American Board of Orthopedic Surgery refused to institute disciplinary proceedings, Dr. Spurling wrote \u201cGeneral Hawley\u201d on February 8, 1955 about the professional and ethical qualifications of Dr. Virgin. He enclosed his correspondence with the American Board of Orthopedic Surgery and a letter to Spurling from Dr. Weiland, stating that Weiland would be \u201cmost certainly more than willing to go ahead\u201d with Spurling on the Virgin matter; he had many of his \u201cattorney friends\u201d gather copies of testimony in which he was marking pertinent passages; that the \u201cbest way to get this thing going\u201d would be for Spurling, himself, to write the Director of the College and suggest that the Dade County Chapter of the College be asked for a report on Dr. Virgin\u2019s activities. Dr. Weiland said \u201cI can assure you that if this is done, we will carry our end forward. In the event you do not feel that this is the right way, please let me know and we will go along on it together just as we planned when you (Spurling) were down here.\u201d\nOn March 18, 1955, Dr. Weiland replied to Myers\u2019 letter of February 11, 1955, that he did not feel it was necessary to prefer \u201cdefinite charges\u201d against Dr. Virgin but he did have numerous pertinent exhibits which were \u201cprepared and ready along with Dr. Spurling\u2019s data\u201d and they would be prepared to exhibit them \u201cat any time you care to call the investigation.\u201d\n\"When the Virgin investigation began in February, 1955, Section 4, Article IX of the College Bylaws provided that, in questions of fitness of a Fellow, the Director might ask that \u201can investigation be made by the Judiciary Committee or other Committee . . . in the Fellow\u2019s State, province or other area.\u201d Section 5, Article V of the Bylaws provided for the establishment of Judiciary Committees which were subject to the control of and reported to the Board of Regents. A Judiciary Committee for the Florida area was in existence during the Virgin investigation.\nMyers did not begin his actual investigation until after June 4, 1955 when Section 4, Article IX was amended allowing the Director to request investigation by an \u201cindividual,\u201d in addition to allowing the Director to ask for investigation by a \u201cJudiciary Committee or other Committee,\u201d and eliminating the requirement for investigation within the Fellow\u2019s own state. There was no provision in the College Bylaws for the \u201cindividual\u201d investigator to report directly to the Board of Regents. Dr. Myers testified that he did not know if the Virgin investigation had anything to do with the amendment of Section 4, Article IX but he did not start his investigation until after it was amended.\nOn June 15 and 16, 1955, Meyers arranged with Weiland by telephone call and confirming letter that he would stop to see Spurling on June 5 and start in Miami on July 6, leaving his return date open, \u201cas I plan to spend as much time as necessary to accomplish the investigation.\u201d On June 17, Weiland wrote Hawley, requesting that, \u201cfor the protection of us all,\u201d a representative of the Dade County Chapter be present as an observer at the conference with Myers on July 6.\nAfter Weiland and Myers made the arrangement for the meeting in Weiland\u2019s office, Myers wrote Dr. Virgin on June 23, 1955, requesting an interview on July 7, or 8 to \u201cdevelop information about certain aspects of your surgical practice.\u201d\nOn July 6, 1955, Myers participated in a meeting in Weiland\u2019s office which lasted from 9:30 a. m. or 9:45 a. m. to 3:00 p. m. or 3:30 p. m. All or nearly all of the doctors taking part in this conference were friends of Dr. Welland when the meeting was to investigate Dr. Virgin. It did not occur to Myers that Virgin ought to be there to hear the accusations against him. Myers did not inquire as to whether the doctors present testified frequently for defendants.\nMyers saw Virgin for the first time on July 8, 1955. During the interview on July 8, Myers interrogated Virgin, as to various matters of his practice over a ten-year period. Myers testified that the following cases were discussed: the Wesley Midget case, the Karl King case, Manheim v. Pierce, the Goff case, the Rose Collins case, and the Jerry Cantor case. He testified that they did not discuss Kenney v. Temple and he could not recall if they discussed the Maul\u00e9 Industries letter.\nMyers told Virgin that there had not been any complaints filed and did not disclose the source of his information. Myers did not ask for any information after the July 8 interview. After Myers left, Virgin wrote names of patients mentioned by Myers on the back of an envelope but made no other notes.\nThe \u201cJudiciary Case\u201d was a five-page document prepared, largely but not exclusively from the 25-page Myers report. It was the statement of the case against Dr. Virgin which was presented for consideration by the Board of Regents.\nThe \u201cJudiciary Case\u201d contained the following: about one-third consisted of general remarks about Dr. Virgin\u2019s background, his relationship with Wei-land and the investigation of Virgin; Virgin was accused of \u201cTestimony to encourage excessive awards\u201d in the Midget, King, Goff, and Cantor cases; he was accused of \u201cFalse Testimony\u201d in the Collins, King, Manheim and Wilkes cases; accusations of \u201cQuestionable Surgical Judgment\u201d were made in connection with the King, Collins and Bender cases; Virgin was accused of \u201cExcessive Fees\u201d in the King, Collins and Midget cases with reference made to a lower fee in the Keirney case; he was accused of \u201cSelf-Laudation\u201d in the Maul\u00e9 Industries letter; the charge of \u201cPatient Pirating\u201d was made in the Bender case; under \u201cPoor Medical Records,\u201d Virgin was accused of \u201csuspension\u201d at Mercy Hospital for being 50 records in arrears, using a female technician to make progress notes, \u201cdemotion\u201d at St. Francis Hospital for failure to write records, and writing a late operative note in the King case.\nAt the end of the \u201cJudiciary Report\u201d under \u201cSummary,\u201d Hawley approved a statement that \u201cthe evidence would seem to show\u201d that Virgin was guilty of false testimony to encourage excessive awards, charging excessive fees, self-laudation, \u201cpatient pirating\u201d and poor medical records. Hawley also approved a statement that \u201cthese are adequate reasons for expulsion\u201d and recommended that Dr. Virgin be expelled.\nAlthough Hawley later wrote to Loyal Davis that \u201cwe had three times\u201d the amount of evidence presented to the Board of Regents but Hawley had limited the presentation to charges \u201cabout which there could be no question.\u201d\nOn August 29, 1955, plaintiff received a letter from Stephenson stating that his \u201cname was to be presented to the Board of Regents . . . for punitive action\u201d under Sections 3 and 4, Article IX of the amended bylaws, that \u201ccharges to be preferred\u201d were based on information that Virgin\u2019s conduct had \u201cbeen injurious to the reputation and best interests of the College, is inconsistent with its purposes, and shows a failure to maintain the standards of conduct set forth in the Fellowship Pledge\u201d and that Virgin could appear at the meeting if he cared to.\nSection 4, Article IX of the College Bylaws, as amended June 4, 1955, provided: \u201cBefore disciplinary action is taken . . . written notice shall he sent by registered mail\u201d to the Fellow \u201cnot less than thirty (30) days prior to a regularly called meeting of the Board\u201d advising him that \u201cdisciplinary action may be taken against him at such meeting; and that he may appear at the meeting, ... be heard and submit such evidence as he deems proper\u201d to show action should not be taken.\nOn September 7, 1955, Dr. Virgin wrote Dr. Hawley, acknowledging Stephenson\u2019s letter of August 29, 1955 and stating: (a) he assumed that no final action was contemplated at the October meeting of the Regents because of the short time allotted and because Stephenson\u2019s letter referred to charges \u201cto be preferred\u201d; (b) he assumed that if it were decided at the October meeting that charges should be preferred, the matter would be referred to the Judicial Committee established in the Greater Miami Chapter of the College for formal investigation and hearing; (c) he thought that no formal charges had been lodged yet, because of Myers\u2019 statements and Stephenson\u2019s letter to that effect; (d) it would be necessary for him to know the formal charges, if any, which were preferred against him so he could discuss them intelligently; (e) he requested copies of charges made, information about the patients involved and the persons making complaints, information regarding names and dates of cases in which testimony was questioned, specification of canons of ethics and parts of the Fellowship Pledge allegedly breached, a copy of Myers\u2019 report; and (f) he inquired whether it was desired that he bring witnesses and evidence to the October meeting, whether the meeting was merely to determine if charges should be made, and if the matter would be referred to tbe Judicial Committee in Miami if formal charges were made. Dr. Hawley was aware of the contents of Virgin\u2019s letter and consulted counsel in determining how to answer it.\nOn September 7, 1955, Dr. Ravdin, Chairman of the Board of Regents wrote Stephenson requesting knowledge of the case against Virgin. On September 13, 1955, Stephenson replied to Dr. Ravdin\u2019s letter, enclosing a copy of the \u201cJudiciary Case\u201d and stating that Virgin had been asking for detailed specification of names, dates and places and that they would consult counsel to determine an \u201cappropriate answer.\u201d\nNot until September 21, 1955, did Stephenson answer Virgin, sending a copy of the bylaws and quoting the June 4, 1955 amendment, explaining that it was not mandatory for the Director to have a \u201cJudiciary Committee\u201d investigate, emphasizing that disciplinary action might be taken \u201cat such meeting,\u201d stating that the proceedings were not \u201clegalistic\u201d and that it would not be necessary for Virgin to bring witnesses to appear before the Board. No details were given as to the nature of charges to be preferred.\nOn September 29, 1955, Dr. Virgin again wrote to Stephenson, acknowledging Stephenson\u2019s letter of September 21 with the bylaw amendment and Stephenson\u2019s original letter of August 29, stating that neither of those letters nor any previous communication have given him any information as to the nature of the charges or cause of the investigation, requesting that he be given an opportunity to know the nature of the charges, by whom they were made and the facts to justify the investigation in view of the fact that disciplinary action might be taken against him at the meeting of the Board of Regents. He stated that, at present, he was without any idea of what evidence would be proper to bring before them. He requested only the right to an opportunity to present his evidence as allowed by the bylaw. He also asked for assurance he would only he examined on matters discussed with him by Myers so he could at least be adequately prepared on them.\nOn October 6, 1955, Dr. Stephenson wrote to Dr. Virgin, stating that Virgin\u2019s letter of September 29 had been discussed with Hawley who said they could not foretell or limit the questions to be asked by the Board but that the Board would undoubtedly delay a final decision if they felt the answers were unsatisfactory because of his lack of specific information.\nOn October 13, 1955, Stephenson wrote Virgin, notifying him of the exact time he would appear before the Regents. On October 14, 1955, Virgin wrote Stephenson notifying him that he would meet with the Regents on October 30 and requesting the exact time and place. On October 15,1955, Virgin wrote Stephenson, acknowledging his instructions to appear at 11:00 a. m., Sunday, October 30, 1955 at the Conrad Hilton in Chicago.\nOn October 30, 1955, Dr. Virgin appeared before the Board of Regents of the College and was interrogated concerning various matters of his professional practice extending over a ten-year period. He was accompanied by his attorney, Ben Hendricks of Miami, Past President of the Miami Bar Association. They brought to the meeting a large suitcase and large briefcase full of material about the cases on which Dr. Virgin had been questioned by Dr. Myers.\nImmediately prior to Virgin\u2019s appearance before the Board, and in his absence, the \u201cJudiciary Case\u201d was read to the Regents and an oral presentation was made by Stephenson. Copies of the \u201cJudiciary Case\u201d had been distributed to the Regents by placing them on their desks on that morning.\nMr. Hendricks then reviewed the steps leading up to hearing and stated that they had attempted to prepare those matters discussed by Myers and Virgin.\nDr. Virgin was then interrogated by Dr. Ravdin and other Regents. When Dr. Virgin attempted to nse the King transcript to clarify his testimony about the Naffziger Test, Ravdin curtly refused to allow him to do so.\nThe following cases listed in the \u201cJudiciary Case\u201d were not touched upon at all in the interrogation of Virgin by the Board on October 30, 1955: The Wesley Midget case; the Hugh Goff case; the Jerry Cantor case; the Gloria Manheim case; the Wilkes case; the portion of the King and Collins cases listed under \u201cQuestionable Surgical Judgment\u201d; the Jules Bender case; the King, Collins, Dorothy Keirney and Midget cases as to excessive fees.\nThe following subjects were diseussed for the first time at that meeting: The Maul\u00e9 Industries letter; whether Virgin was a \u201cPlaintiff\u2019s Doctor\u201d; whether he made contingent fee arrangements; and Blue Shield fees.\nWhen the interrogation was concluded Dr. Ravdin remarked how \u201cvery happy\u201d they were \u201cthat you have come here today\u201d; that they would \u201cgive this whole matter very careful thought\u201d; and that \u201cwe may ask you to come back and see us again.\u201d Dr. Virgin then replied that he would \u201cbe glad to\u201d and would like to at anytime be able to \u201cpresent a fuller and better developed presentation of my side.\u201d Mr. Hendricks again requested a copy of the charges \u201cin order that we may be able to send you various information.\u201d Dr. Ravdin replied, \u201cThe Regents have made no charges against Dr. Virgin. The Regents have said that these charges have come to the College and we have asked Dr. Virgin to come here merely that he might give us his idea of these charges.\u201d\nMr. Hendricks then remarked that \u201cthe use of the words \u2018punitive action\u2019 in the very outset of the matter no doubt caused alarm and concern\u201d; and that they had come \u201cprepared as to any case\u201d the Board \u201cwished to go into, we have as near as possible the complete records for submission to you gentlemen to show that,\u201d whereupon Dr. Eavdin cut him off remarking: \u201cWell, let\u2019s say that the letter might well have said \u2018possible punitive action.\u2019 Thanks very much.\u201d Mr. Hendricks replied, \u201cThank you very much,\u201d Dr. Eavdin responded \u201cYes sir, Mr. Hendricks. Thank you for coming,\u201d and thereupon Dr. Virgin and Mr. Hendricks left the room.\nDr. Hawley, present throughout and experienced in military courts martial as both judge, witness and defense counsel, described the proceeding of October 30th as \u201cone of informing Dr. Virgin of the substance of Exhibit No. 9,\u201d of \u201can exploration of the charges brought against Dr. Virgin and giving him an opportunity to state his position upon,\u201d agreeing that the \u201ccharges\u201d were not presented by the College; that Dr. Virgin \u201cwas being heard, but there was no proceeding at that time to consider his expulsion.\u201d As to whether Dr. Virgin was \u201cbeing given a hearing in the term in which it was generally understood,\u201d Dr. Hawley would say yes if the term \u201cpreliminary hearing\u201d was used. As to whether the College on October 30th was \u201cmerely having a conversation with Dr. Virgin,\u201d Dr. Hawley replied that \u201cit was a little more than that.\u201d When asked \u201chow much more,\u201d he replied, \u201cWell, it was no more than that\u201d and that when Dr. Eavdin \u201cdescribed the proceedings as conversations with the individual (which he did not), he was correct\u201d!\nNo final action was taken against Dr. Virgin at the October meeting. A special Committee composed of Doctors Davis, Cole and McKittrick was appointed to investigate Dr. Virgin, collect further information and report at the December 1955 meeting of the Eegents.\nDr. Davis began the committee meeting by stating that Virgin made a bad impression by bringing his lawyer. Davis did most of the talking. Cole talked to Virgin for a few minutes at the end. The following subjects were discussed: the surgical situation in Miami; relationships of doctors and groups of doctors there; Virgin\u2019s relationship to Weiland; fee problems in Miami; the Mercy Hospital \u201csuspension\u201d; delinquency in records; progress notes by technicians; and specific cases the names of which Dr. Virgin does not remember. However the Collins case (the nurse) was not discussed. Virgin produced some documents in connection with the matters discussed. He did not have the transcripts that he had had at the Board meeting with him. At the end of the meeting which lasted about 90 minutes, Davis commented: \u201cWell, it looks as though this is clearly a question of an older man jealous of a younger man coming into the community and making a success.\u201d\nThe committee met with Myers and Stephenson on December 3 and agreed that both Dr. Virgin and Dr. Weiland had brought discredit to the College, that Weiland should be called before the Board also and that both Weiland and Virgin should be penalized equally.\nOn December 28, 1955, Hawley wrote Weiland that the Board of Regents requested he meet with it at his \u201cearliest convenience\u201d to pursue some questions raised in a recent investigation and would he \u201cplease inform\u201d Hawley if he would be present at the February meeting. No punitive action was mentioned. On January 13, 1956, Hawley wrote Davis that Weiland would appear before the Board on February 13, 1956.\nOn January 20, 1956, Ravdin wrote Hawley that he had spoken to four undisclosed doctors in Miami the day before about the Virgin matter; he spoke to Weiland again; general comments about the Miami situation; he hoped this matter could be straightened out at the next Regents\u2019 meeting; and he \u201cwas very happy to have gone to Miami and to have personally looked into the situation, for it will give me a background for discussion with the Regents.\u201d\nHawley had invited Spurling to dine with the Regents on Saturday evening (the night before he testified) ; and Hawley did not want the Regents to make another \u201cserious error\u201d like they did in \u201cwhitewashing Alstea Callahan\u201d in Birmingham.\nDr. Lee wrote Dr. Ravdin on January 26, 1956 that he was \u201cappalled\u201d by the conclusive, documentary and irrefutable evidence presented against Virgin, he admired Weiland whose motives are the highest, and \u201cPlease do not fail us now.\u201d Ravdin forwarded it to Hawley with the comment, \u201cSure it is that at our next meeting we must take definite action in regard to this situation.\u201d\nDr. Virgin received no notice, by registered mail or otherwise, to appear at the February 10-11, 1956 meeting of the Board or that disciplinary action might be taken against him at that meeting, nor was he there.\nDr. Spurling left and a lengthy discussion ensued resulting in a vote to expel Dr. Virgin for \u201cconduct injurious to the good name of the College.\u201d\nOn February 23, 1956, Hawley wrote to Dr. Virgin that the Board voted unanimously (1) that his \u201cprofessional conduct has upon occasion not been in accordance with the principles of the American College of Surgeons\u201d and (2) to terminate his Fellowship. Section 3, Article IX of the College Bylaws provided: \u201cThe Board of Regents may expel . . . any Fellow\u201d for conduct \u201cinjurious to the good order, peace, reputation, or best interest of the College,\u201d or conduct \u201cderogatory to its dignity, inconsistent with its purposes\u201d or conduct showing \u201ca failure to maintain the standards of conduct set forth in the Fellowship Pledge.\u201d\nDr. Virgin, through his attorneys, requested reinstatement in the College on April 24, 1956, and renewed his request for reinstatement and requested the reasons assigned for expulsion on May 14, 1956. These requests were accompanied by the condition that further disciplinary proceedings be referred to an impartial third party for hearing. The College, through its attorney on June 13, 1962 notified him that the Board refused to reinstate Mm advising also that his expulsion arose \u201cfrom the decision of the Board of Regents that his conduct has been injurious to the reputation and best interest of the College, inconsistent with its purposes, and has shown a failure to maintain the standards set forth in the Fellowship Pledge.\u201d The only ground actually set out in the minutes of the February meeting was \u201cconduct injurious to the good name of the College.\u201d The Bylaws of the College afford Dr. Virgin no further remedy or relief.\nThere had never been any notice to Dr. Virgin that he was to be subjected to discipline because \u201chis conduct has been injurious to the reputation and best interest of the College, inconsistent with its purposes, and has shown a failure to maintain the standards set forth in the Fellowship Pledge,\u201d or even that his \u201cconduct [had been] injurious to the good name of the College.\u201d\nMembership in a voluntary association is an interest of substance within the scope of judicial control. This has been the rule in this country for a number of years.\n\u201cSome associations have a stranglehold upon their members through their control of an occupation . . . which can ill be spared. In such there is an operative policy in favor of relief against wrongful treatment.\u201d Chaffee, The Internal Affairs of Associations, 43 HarvL Rev 993,1022 (1930).\nThe principle that a member of a professional association who is wrongfully expelled has an \u201cinterest of substance\u201d which the Judiciary will protect has been clearly engrained in the law of the United States and England. In the leading case in the United States of Reid v. Medical Society, 156 NYS 780, 783 (Sup Ct, 1915), wherein a physician was reinstated in a medical society after unjust expulsion, the Court stated at page 783:\n\u201cMembership in the County (Medical) Society carries valuable privileges relating to the practice of his profession, both educational and professional, which latter advantages have a potential financial value, and also carry property rights, from which privileges and enjoyment of property rights an expelled member is deprived.\u201d\nWhether the \u201cinterest of substance\u201d which accrues to a member of a professional association is called a \u201cproperty right,\u201d \u201ccontract right\u201d or merely the \u201cmember\u2019s relation to the association,\u201d there is a growing awareness that wrongful expulsion from a voluntary professional association has such a serious effect on the ability of the professional man to successfully pursue his livelihood and that it is a judicially protectable interest. Chaffee, The Internal Affairs of Associations, 43 Harv L Rev 993, 998-1008 (1930). See 20 ALR2d 536-571.\nCourts annul expulsions from voluntary associations when they are (1) not in accordance with the constitution and bylaws of the association, (2) influenced by bias, prejudice or lacking in good faith, or (3) contrary to rudimentary due process or natural justice.\nIn Medical & Surgical Society of Montgomery Co. v. Weatherly, 75 Ala 248, at page 258:\n\u201cThe rule of law is known to be, that this power resides generally in the body of every corporate society, that it is judicial in its nature and must be exercised by a vote of the society expressing the corporate will, and ordinarily the records or minutes of the body must show that the requisite steps were taken in compliance with the charter and bylaws of the corporation, after reasonable notice to the party charged, either express or implied.\u201d\nIn Illinois it has recently been decided as follows, O\u2019Brien v. Matual, 14 Ill App2d 173, page 197, 144 NE2d 446 as follows:\n\u201cBut a court of equity will interfer\u00e9 where it appears the provisions of the Constitution have not been observed, where the association, its officers, or tribunals are not acting within the scope of its or their powers or in accordance with the Constitution, or the member or subordinate body has not been afforded those rudimentary rights which will give him or it an opportunity to defend against any charges made, including reasonable notice thereof, an opportunity to be present at a hearing, to confront and cross examine his or its accusers, to make a defense, and to endeavor to refute any evidence adduced in support of the charges.\u201d\nAnd, it was also decided in Werner v. International Ass\u2019n of Machinists, 11 Ill App2d 258, at page 279, 137 NE2d 100:\n\u201cWhile all of the authorities are to the effect that a court will not reverse the expulsion of a member of a union for an infringement of its rules where it appears that the expulsion is ordered in accordance with the constitution and bylaws of the union, it is also equally well settled that courts will interfere with the decision of an association expelling one of its members if it appears that the rules of the association governing expulsion have not been observed or if the accused member has not been afforded those rudimentary rights which will give him an opportunity to defend against the charges made. These rights include notice to the accused of the charges made against him, an opportunity to he present and confront and cross-examine his accusers and an opportunity to make a defense and refute the evidence produced in support of the charges. (Carson v. Glass Bottle Blowers Ass\u2019n of United States & Canada, 37 Cal2d 134, 231 P2d 6, 21 ALR2d 1387.)\u201d\nIt is, therefore, clearly apparent that Dr. Virgin was not given notice according to the bylaws. He never received any registered mail as the bylaws required, nor was he at anytime allowed to confront his accusers or given a fair hearing upon the charges against him. He was never given any idea of what charges were presented against him. The hearing did not in any way meet the requirements of due notice and proper hearing upon the question of his expulsion and is, therefore, void and the expulsion must be set aside.\nIt is clear that the requirements were not met and the hearing is, therefore, invalid.\nWe hold that Dr. Virgin was never legally expelled from the college and the mandamus must be directed to be entered.\nThe defendants have declared that the college is not interested in retrial of Dr. Virgin at this late date. Therefore, the judgment is reversed and cause remanded with directions to enter judgment for plaintiff, awarding a writ of mandamus, commanding defendants to reinstate plaintiff as a Fellow of the American College of Surgeons.\nJudgment reversed and cause remanded with directions.\nBURKE and FRIEND, JJ, concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE BRYANT" } ], "attorneys": [ "Sears, Streit, Tyler & Dreyer, of Chicago (Barnabas F. Sears, James N. Kosmond and Gerald M. Sheridan, Jr., of counsel), for appellant.", "Vedder, Price, Kaufman & Kammholz, of Chicago (Lawrence Howe, Jr. and James S. Petrie, of counsel), for appellees." ], "corrections": "", "head_matter": "Herbert W. Virgin, Jr., Plaintiff-Appellant, v. American College of Surgeons, a Corporation, Paul Hawley, Director of the American College of Surgeons, and Michael L. Mason, Secretary of the American College of Surgeons, Defendants-Appellees.\nGen. No. 48,758.\nFirst District, Second Division.\nMay 29, 1963.\nSears, Streit, Tyler & Dreyer, of Chicago (Barnabas F. Sears, James N. Kosmond and Gerald M. Sheridan, Jr., of counsel), for appellant.\nVedder, Price, Kaufman & Kammholz, of Chicago (Lawrence Howe, Jr. and James S. Petrie, of counsel), for appellees." }, "file_name": "0352-01", "first_page_order": 360, "last_page_order": 379 }