{ "id": 8524196, "name": "JONATHAN DUNBAR WESTON v. CAROLINA MEDICORP, INC., and FORSYTH MEMORIAL HOSPITAL, INC., d/b/A FORSYTH MEMORIAL HOSPITAL", "name_abbreviation": "Weston v. Carolina Medicorp, Inc.", "decision_date": "1991-04-02", "docket_number": "No. 9021SC677", "first_page": "370", "last_page": "381", "citations": [ { "type": "official", "cite": "102 N.C. App. 370" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "54 ALR3d 868", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "42 U.S.C.S. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "42 U.S.C.S. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "313 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "166", "parenthetical": "proper for trial court to direct attorney to prepare proposed findings and conclusions" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526145 ], "year": 1984, "pin_cites": [ { "page": "256-57", "parenthetical": "proper for trial court to direct attorney to prepare proposed findings and conclusions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0250-01" ] }, { "cite": "491 U.S. 164", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6211653 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "176" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/us/491/0164-01" ] }, { "cite": "809 F.2d 1371", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1643347 ], "year": 1987, "pin_cites": [ { "page": "1375" } ], "opinion_index": 0, "case_paths": [ "/f2d/809/1371-01" ] }, { "cite": "678 F.2d 593", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1470572 ], "year": 1982, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/f2d/678/0593-01" ] }, { "cite": "421 U.S. 454", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541307 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "459-60" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/us/421/0454-01" ] }, { "cite": "709 F.2d 284", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11323674 ], "year": 1983, "pin_cites": [ { "page": "286-87", "parenthetical": "state action required for First Amendment claim" } ], "opinion_index": 0, "case_paths": [ "/f2d/709/0284-01" ] }, { "cite": "793 F.2d 1159", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1587399 ], "year": 1986, "pin_cites": [ { "page": "1163-64", "parenthetical": "state action required for claims under First and Fourteenth Amendments" } ], "opinion_index": 0, "case_paths": [ "/f2d/793/1159-01" ] }, { "cite": "487 U.S. 42", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774710 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "48", "parenthetical": "violator must act under color of state law" }, { "page": "48-49", "parenthetical": "violator must act under color of state law" } ], "opinion_index": 0, "case_paths": [ "/us/487/0042-01" ] }, { "cite": "341 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720582, 4719788, 4714509, 4714299, 4715580 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0586-04", "/nc/315/0586-03", "/nc/315/0586-05", "/nc/315/0586-02", "/nc/315/0586-01" ] }, { "cite": "333 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527323 ], "year": 1985, "pin_cites": [ { "page": "385-86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0382-01" ] }, { "cite": "604 F. Supp. 326", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5714600 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "333-34", "parenthetical": "insufficient nexus where state statute required private hospital to have bylaws but state did not approve them and did not monitor hospital's actions taken pursuant to them" }, { "page": "333-34", "parenthetical": "state did not approve bylaws nor did it monitor action taken pursuant to them" } ], "opinion_index": 0, "case_paths": [ "/f-supp/604/0326-01" ] }, { "cite": "881 F.2d 200", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11288136 ], "year": 1989, "pin_cites": [ { "page": "202", "parenthetical": "no state action where legislation authorized revocation of staff privileges" } ], "opinion_index": 0, "case_paths": [ "/f2d/881/0200-01" ] }, { "cite": "213 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "304", "parenthetical": "\"construction, maintenance and operation of a public hospital by either a city or a county is a proprietary function\"" } ], "opinion_index": 0 }, { "cite": "287 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560927 ], "year": 1975, "pin_cites": [ { "page": "25-26", "parenthetical": "\"construction, maintenance and operation of a public hospital by either a city or a county is a proprietary function\"" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0014-01" ] }, { "cite": "674 F.2d 1023", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1150876 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "1026", "parenthetical": "citation omitted" }, { "page": "1026", "parenthetical": "insufficient nexus where hospital implemented governmental program" } ], "opinion_index": 0, "case_paths": [ "/f2d/674/1023-01" ] }, { "cite": "884 F.2d 835", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11356298 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "838", "parenthetical": "private hospital's termination of personnel director not state action" }, { "page": "841", "parenthetical": "lease provision required private hospital to accept indigent patients" } ], "opinion_index": 0, "case_paths": [ "/f2d/884/0835-01" ] }, { "cite": "79 L.Ed.2d 685", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "pin_cites": [ { "parenthetical": "private hospital placed physician on one-year probation" } ], "opinion_index": 0 }, { "cite": "465 U.S. 1025", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11365152, 11365281, 11365545, 11365738, 11365866, 11365080, 11366032, 11365489, 11365013, 11365624, 11365946, 11366109, 11365406 ], "year": 1984, "pin_cites": [ { "parenthetical": "private hospital placed physician on one-year probation" } ], "opinion_index": 0, "case_paths": [ "/us/465/1025-03", "/us/465/1025-04", "/us/465/1025-07", "/us/465/1025-09", "/us/465/1025-10", "/us/465/1025-02", "/us/465/1025-12", "/us/465/1025-06", "/us/465/1025-01", "/us/465/1025-08", "/us/465/1025-11", "/us/465/1025-13", "/us/465/1025-05" ] }, { "cite": "713 F.2d 414", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1874617 ], "weight": 3, "pin_cites": [ { "page": "415" }, { "page": "416" }, { "page": "416", "parenthetical": "insufficient nexus where physician did not allege that state participated in disciplinary procedures" } ], "opinion_index": 0, "case_paths": [ "/f2d/713/0414-01" ] }, { "cite": "419 U.S. 345", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175165 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "351" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/us/419/0345-01" ] }, { "cite": "540 F.2d 392", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 315344 ], "year": 1976, "pin_cites": [ { "page": "395", "parenthetical": "private hospital terminating physician's staff membership and privileges" } ], "opinion_index": 0, "case_paths": [ "/f2d/540/0392-01" ] }, { "cite": "206 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "146", "parenthetical": "due process expressions under federal and state constitutions are synonymous" } ], "opinion_index": 0 }, { "cite": "285 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565161 ], "year": 1974, "pin_cites": [ { "page": "474", "parenthetical": "due process expressions under federal and state constitutions are synonymous" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0467-01" ] }, { "cite": "488 U.S. 179", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494943 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "191", "parenthetical": "Fourteenth Amendment does not protect individual from private conduct" }, { "page": "484", "parenthetical": "Fourteenth Amendment does not protect individual from private conduct" }, { "page": "192" }, { "page": "484-85" }, { "page": "192" }, { "page": "485", "parenthetical": "citations omitted" }, { "page": "191" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/us/488/0179-01" ] }, { "cite": "228 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "496", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 8", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547182 ], "year": 1976, "pin_cites": [ { "page": "13", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0008-01" ] }, { "cite": "457 U.S. 922", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196193 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "930" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/us/457/0922-01" ] }, { "cite": "457 U.S. 991", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196949 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "1002" }, { "page": "545" }, { "page": "1005" } ], "opinion_index": 0, "case_paths": [ "/us/457/0991-01" ] }, { "cite": "347 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "28", "parenthetical": "where plaintiff did not assign error to trial court's findings, they were conclusive" } ], "opinion_index": 0 }, { "cite": "317 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779714 ], "year": 1986, "pin_cites": [ { "page": "582-83", "parenthetical": "where plaintiff did not assign error to trial court's findings, they were conclusive" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0579-01" ] }, { "cite": "470 U.S. 564", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299693 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "573-74" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/us/470/0564-01" ] }, { "cite": "395 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "emphases added" } ], "opinion_index": 0 }, { "cite": "327 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497547, 2497103, 2495092, 2497208, 2498398 ], "year": 1990, "pin_cites": [ { "parenthetical": "emphases added" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0432-03", "/nc/327/0432-01", "/nc/327/0432-04", "/nc/327/0432-05", "/nc/327/0432-02" ] }, { "cite": "392 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "108-09", "parenthetical": "emphases added" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525489 ], "year": 1990, "pin_cites": [ { "page": "651", "parenthetical": "emphases added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0648-01" ] }, { "cite": "42 U.S.C.S. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 5, "pin_cites": [ { "parenthetical": "Law. Co-op. 1986" } ], "opinion_index": 0 }, { "cite": "42 U.S.C.S. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "parenthetical": "Law. Co-op. 1986" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1065, "char_count": 26927, "ocr_confidence": 0.766, "pagerank": { "raw": 3.1900490836762135e-07, "percentile": 0.8650840261343422 }, "sha256": "ec232a8d20d0dda43ec32cdec3cc09b5edf1fdb3d5e0e87f1ac4c56acff729f4", "simhash": "1:f7b96a30237cb956", "word_count": 4184 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Cozort concur." ], "parties": [ "JONATHAN DUNBAR WESTON v. CAROLINA MEDICORP, INC., and FORSYTH MEMORIAL HOSPITAL, INC., d/b/A FORSYTH MEMORIAL HOSPITAL" ], "opinions": [ { "text": "GREENE, Judge.\nThe plaintiff appeals the judgment filed 22 November 1989 wherein the trial court denied the injunctive relief sought by the plaintiff.\nIn this case, the trial court sat as the factfinder. \u201cIt is well settled that when the trial judge sits as factfinder, his findings of fact are binding [on appeal] if they are supported by any competent evidence in the record, but his conclusions of law are reviewable.\u201d R.L. Coleman & Co. v. City of Asheville, 98 N.C. App. 648, 651, 392 S.E.2d 107, 108-09, disc. rev. denied, 327 N.C. 432, 395 S.E.2d 689 (1990) (emphases added); see also N.C.G.S. \u00a7 1A-1, Rule 52(c). Accordingly, the proper standard on appeal to challenge the trial court\u2019s findings of fact is the \u201cany competent evidence\u201d standard. Here, all of the plaintiffs assignments of error with regard to the trial court\u2019s findings assert that they are \u201cclearly erroneous.\u201d The \u201cclearly erroneous\u201d standard is the federal standard for review of the trial court\u2019s findings of fact. Fed. R. Civ. P. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-74, 84 L.Ed.2d 518, 528 (1985). The plaintiff\u2019s assignments of error with regard to the findings of fact are therefore ineffective to challenge the sufficiency of the evidence to support the findings under the \u201cany competent evidence\u201d standard of appellate review. Accordingly, the trial court\u2019s findings of fact are conclusive on this appeal. See Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 582-83, 347 S.E.2d 25, 28 (1986) (where plaintiff did not assign error to trial court\u2019s findings, they were conclusive).\nWe summarize the trial court\u2019s pertinent findings as follows: The plaintiff is an African-American physician specializing in obstetrics and gynecology and has practiced his specialty in Winston-Salem, North Carolina, since 1979. In 1979, he was granted medical staff privileges at-Forsyth Memorial Hospital. The defendant Carolina Medicorp, Inc. [Medicorp], is a non-profit corporation which has owned the hospital\u2019s facilities since 1984. Defendant Forsyth Memorial Hospital, Inc. [Hospital], is a separate, private, non-profit corporation affiliated with Medicorp. The Hospital is the corporation which operates the hospital, and its board of trustees is the governing authority for the hospital.\nPrior to 1984, Forsyth County owned the hospital\u2019s facilities. In 1983, the Forsyth County Commissioners voted to transfer the facilities to Medicorp, and the deed effectuating the transfer was executed and filed in January of 1984. The transfer was made pursuant to N.C.G.S. \u00a7 131E-8 (1988 & Supp. 1990) which mandates the operation of the hospital \u201cas a community general hospital open to the general public\u201d and the provision of medical services \u201cto indigent patients as the municipality or hospital authority and the nonprofit corporation shall agree.\u201d As a condition of the transfer, the County Commissioners have the right to appoint the majority of the Hospital\u2019s board of trustees. Forsyth County has no other involvement in the operation of the Hospital. Forsyth County has not provided any funding to Medicorp or the Hospital since 1984. All of the actions complained of in this proceeding are ones taken by Hospital rather than Medicorp.\nIn 1986, the Hospital adopted infectious disease control policies for patients infected with the HIV (Human Immune Deficiency) virus. These policies \u201crequired a physician admitting a patient with the HIV infection to place the patient on blood and body fluid isolation, a status which identifies a patient as being potentially infectious and also requires the use of protective measures for health care personnel coming in contact with the patient.\u201d\nIn February of 1988, the plaintiff admitted a patient whom he had known to be infected with the HIV virus since 1987. In August of 1987, the plaintiff reconfirmed that the patient was infected with the HIV virus. During this patient\u2019s admission to the hospital in February of 1988, she was treated for premature labor and discharged. The plaintiff did not place the patient on blood and body fluid isolation, did not notify any of the health care personnel treating the patient that she was infected with the HIV virus, and did not enter any information in the patient\u2019s medical chart at the hospital indicating that she had this infectious condition. Later in the month, the patient returned to the hospital in labor and had a rapid delivery which was managed by a nurse.\nThe nurse who handled the \u201cdelivery did not have gloves on both of her hands as is required by the policy known as \u2018universal precautions\u2019 (which is recommended by the U.S. Center for Disease Control and is required by State communicable disease regulations and the Hospital\u2019s policies) due to the speed at which the events during the course of the delivery occurred.\u201d Once Hospital personnel learned that the patient had the HIV virus, members of the nursing staff became concerned that the plaintiff had not followed the Hospital\u2019s blood and body fluid isolation policy. At an administrative hearing conducted to determine if the plaintiff had violated Hospital policy, Dr. Weston testified and admitted that he had conducted a confirmatory test on the patient in August of 1987 which indicated that she did have the HIV virus. The hearing committee concluded that the plaintiff had violated the Hospital policy and disrupted hospital operations. The investigating committee recommended that the plaintiff be suspended from the Medical Staff for three months. The hearing committee presented its recommendations to the Executive Committee which unanimously approved the recommendation that Dr. Weston\u2019s privileges be suspended for three months. \u201cWhile the Medical-Dental Staff Bylaws provided Dr. Weston with the right to appeal this recommendation to the Hospital\u2019s Board of Trustees, he chose not to do so.\u201d\nIn 1989, the plaintiff was involved in various incidents which raised questions concerning whether the Hospital should continue to allow the plaintiff to practice medicine at the hospital. In one incident, a patient died from excessive blood loss after a surgery performed by the plaintiff. Another incident involved the plaintiff\u2019s alleged mismanagement of a laparoscopy, which is \u201ca procedure involving insertion of an instrument into a patient to remove an ectopic (outside of the uterus) pregnancy from an ovarian tube.\u201d Another incident involved an alleged improper, premature cesarean section which endangered the baby\u2019s life. Another incident involved the alleged dropping by the plaintiff of a baby on its head during delivery.\nBased upon these events, the plaintiff was summarily suspended from the Medical Staff. The plaintiff appealed the summary suspension to the Executive Committee and to the Hospital\u2019s board of trustees. Both bodies affirmed the suspension pending a full investigation. A three-member investigating committee was appointed to investigate these events. After the investigation, the Executive Committee deliberated and recommended that the plaintiff\u2019s staff privileges \u201cbe revoked because his \u2018medical judgment is impaired at this time.\u2019 The Executive Committee encouraged Dr. Weston to reapply for his privileges whenever he can demonstrate that his medical judgment has been restored and that he can comply with the qualifications for membership on the Medical-Dental Staff.\u201d\nBased upon these findings, the trial court concluded, among other things, that the \u201cHospital\u2019s termination of plaintiff\u2019s Hospital Staff privileges was not \u2018state action,\u2019 \u201d that the plaintiff did not have a contract with the Hospital, and that \u201c[n]one of the actions challenged by plaintiff .. . were arbitrary, capricious, unreasonable, discriminatory, retaliatory or otherwise in violation of law.\u201d Based upon its conclusions, the trial court ordered \u201cthat the plaintiff have and recover nothing of the defendants . . . .\u201d\nThe issues are whether (I) a private, non-profit hospital in suspending and revoking a physician\u2019s staff privileges engages in state action; (II) N.C.G.S. \u00a7 130A-143 (1990) granted the plaintiff the absolute right to decide whether to divulge information about a patient\u2019s HIV test results to other medical personnel; (III) the plaintiff may bring claims for retaliation and discrimination pursuant to 42 U.S.C.S. \u00a7 1981 (Law. Co-op. 1986); and (IV) a trial court may adopt the proposed findings of fact and conclusions of law prepared by an attorney.\nI\nThe plaintiff argues that the trial court erred in concluding that the defendants did not violate the plaintiff\u2019s state and federal constitutional due process rights in suspending and revoking the plaintiff\u2019s staff privileges. We note initially that the trial court found that \u201c[a]ll of the actions complained of in this proceeding are ones taken by Forsyth Memorial Hospital, Inc. [Hospital], rather than Carolina Medicorp, Inc. [Medicorp].\u201d As mentioned at the outset, we are bound by the trial court\u2019s findings. Therefore, we limit our discussion to whether the Hospital violated the plaintiff\u2019s due process rights. Furthermore, the trial court found and concluded that the Hospital was a private, non-profit hospital. We are bound by the finding and we may not question the conclusion because the plaintiff did not properly assign error to it. N.C.R. App. P. 10.\n\u201cThe Fourteenth Amendment of the [United States] Constitution provides in part that \u2018[n]o State shall . . . deprive any person of life, liberty, or property without due process of law.\u2019 \u201d Blum v. Yaretsky, 457 U.S. 991, 1002, 73 L.Ed.2d 534, 545 (1982). This Amendment \u201cprotects individuals only from governmental and not private action . . . .\u201d Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 73 L.Ed.2d 482, 491 (1982). Article 1, \u00a7 19 of the North Carolina Constitution provides in part that \u201c[n]o person shall be ... in any manner deprived of his life, liberty, or property, but by the law of the land.\u201d This Article, like the Fourteenth Amendment, was designed \u201c \u2018to protect the individual from the State.\u2019 \u201d North Carolina Real Estate Licensing Board v. Aikens, 31 N.C. App. 8, 13, 228 S.E.2d 493, 496 (1976) (citation omitted). Accordingly, \u201cstate action\u201d is required to trigger the protections of the \u201csynonymous\u201d due process provisions of the Fourteenth Amendment to the United States Constitution and Article 1, \u00a7 19 of the North Carolina Constitution. NCAA v. Tarkanian, 488 U.S. 179, 191, 102 L.Ed.2d 469, 484 (1988) (Fourteenth Amendment does not protect individual from private conduct); see Bulova Watch Co. v. Brand Distribs. of North Wilkesboro, 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974) (due process expressions under federal and state constitutions are synonymous).\n\u201cIn the typical case raising a state-action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action.\u201d Tarkanian, 488 U.S. at 192, 102 L.Ed.2d at 484-85. This is so because \u201cthe relationship between a private corporation and a state or local government may be such or the function performed by the corporation may be such that actions taken by the corporation may be governmental rather than private actions.\u201d Briscoe v. Bock, 540 F.2d 392, 395 (8th Cir. 1976) (private hospital terminating physician\u2019s staff membership and privileges). Here, the alleged state action by the Hospital involves the suspension and revocation of the plaintiff\u2019s staff privileges. Accordingly, for the Hospital\u2019s conduct to be classified as state action, the plaintiff must show that a sufficiently close nexus exists between the State and the challenged action of the \u2022Hospital so that the Hospital\u2019s action \u201c \u2018may be fairly treated as that of the State itself.\u2019 \u201d Yaretsky, 457 U.S. at 1004, 73 L.Ed.2d at 546 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L.Ed.2d 477, 484 (1974)); Lubin v. Crittenden Hosp. Ass\u2019n, 713 F.2d 414, 415 (8th Cir.1983), cert. denied, 465 U.S. 1025, 79 L.Ed.2d 685 (1984) (private hospital placed physician on one-year probation).\nWhether the Hospital\u2019s suspension and revocation of the plaintiff\u2019s staff privileges was \u201cstate action depends upon the specific facts and circumstances surrounding the challenged action.\u201d Albright v. Longview Police Dep\u2019t, 884 F.2d 835, 838 (5th Cir. 1989) (private hospital\u2019s termination of personnel director not state action). The required nexus may be shown where \u201cthe State creates the legal framework governing the conduct, ... if it delegates its authority to the private actor, ... or sometimes if it knowingly accepts the benefits derived from unconstitutional behavior . . . .\u201d Tarkanian, 488 U.S. at 192, 102 L.Ed.2d at 485 (citations omitted). The nexus may also be shown where \u201cthe private entity has exercised powers that are \u2018traditionally the exclusive prerogative of the State.\u2019 \u201d Yaretsky, 457 U.S. at 1005, 73 L.Ed.2d at 547 (citation omitted). Because neither the State nor any local government created any legal framework governing the challenged conduct, delegated authority to the Hospital, or accepted any benefits from any alleged unconstitutional behavior, these methods for establishing the nexus do not apply. Furthermore, \u201c[although health care is certainly an \u2018essential public service\u2019, it does not involve the \u2018exercise by a private entity of powers traditionally exclusively reserved to the State.\u2019 \u201d Modaber v. Culpeper Memorial Hosp., Inc., 674 F.2d 1023, 1026 (4th Cir. 1982) (citation omitted) (private hospital revoked physician\u2019s staff privileges); see also Lubin, 713 F.2d at 416; Sides v. Cabarrus Memorial Hosp., Inc., 287 N.C. 14, 25-26, 213 S.E.2d 297, 304 (1975) (\u201cconstruction, maintenance and operation of a public hospital by either a city or a county is a proprietary function\u201d). Accordingly, the required nexus may not be established under the \u201cpublic function\u201d method either.\nThe plaintiff argues that state action should be found to exist for four separate reasons, each of which lacks merit. First, the General Assembly enacted N.C.G.S. \u00a7 131E-8 thus allowing and governing the conveyance of the hospital to Medicorp and granting Medicorp\u2019s power to operate the hospital. The fact that a state statute governs the method of conveying municipal hospitals to private, non-profit corporations does nothing to explain how a private, non-profit hospital\u2019s suspension and revocation of staff privileges constitutes state action. See Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989) (no state action where legislation authorized revocation of staff privileges); Garst v. Stoco, Inc., 604 F. Supp. 326, 333-34 (E.D. Ark. 1985) (insufficient nexus where state statute required private hospital to have bylaws but state did not approve them and did not monitor hospital\u2019s actions taken pursuant to them).\nSecond, the label given to N.C.G.S. Chapter 131E, Article 2 is \u201cPublic Hospitals,\u201d and under N.C.G.S. \u00a7 143-318.10(b) (1990), the Hospital is a \u201cpublic body.\u201d The label given Chapter 131E is irrelevant in determining whether a private, non-profit hospital\u2019s suspension and revocation of staff privileges constitutes state action. Likewise, the definition of a \u201cpublic body\u201d for purposes of the open meetings statute does not establish a sufficient nexus for state action.\nThird, the county commissioners have the right to appoint the majority of the Hospital\u2019s board of trustees. The trial court found that this right was a \u201ccondition of the deed transferring the\u201d hospital to Medicorp. The appointment right of some but not all of the trustees, though indicative of state action, does not alone compel the conclusion that the suspension and revocation of the plaintiff\u2019s staff privileges constituted state action in this case. Though Forsyth County appoints the majority of the Hospital\u2019s board, the trial court found that the \u201cCounty has no other involvement in the affairs of the Hospital.\u201d The County does not fund the Hospital. The plaintiff does not argue and the record does not reveal that the County had any control over the board of trustees. Without any governmental control over the Hospital\u2019s board, the nexus between the County and the Hospital\u2019s revocation of the plaintiff\u2019s staff privileges is at best remote. Lubin, 713 F.2d at 416 (insufficient nexus where physician did not allege that state participated in disciplinary procedures); see also Garst, 604 F. Supp. at 333-34 (state did not approve bylaws nor did it monitor action taken pursuant to them).\nFourth, the statute requires the Hospital to operate as a community general hospital open to the public and to provide care to indigent patients. This fact does not transform a private, nonprofit hospital\u2019s disciplinary decisions into state action. Albright, 884 F.2d at 841 (lease provision required private hospital to accept indigent patients); see also Modaber, 674 F.2d at 1026 (insufficient nexus where hospital implemented governmental program). Accordingly, because of the absence of state action, we need not address the plaintiffs arguments addressed at the alleged due process violations.\nII\nThe plaintiff argues that the trial court committed prejudicial error in concluding that the defendants did not wrongfully, arbitrarily, or capriciously suspend and revoke the plaintiff\u2019s staff privileges. The plaintiff argues that N.C.G.S. \u00a7 130A-143 gives him the absolute discretion to decide whether to divulge information about HIV test results. On the basis of the alleged statutory right, the plaintiff argues that to the extent the defendants considered the plaintiffs exercise of this alleged statutory right in suspending and revoking his staff privileges, it acted wrongfully, arbitrarily, or capriciously in violation of Claycomb v. HCA-Raleigh Community Hosp., 76 N.C. App. 382, 385-86, 333 S.E.2d 333, 336 (1985), disc. rev. denied, 315 N.C. 586, 341 S.E.2d 23 (1986).\nThe pertinent provisions of N.C.G.S. \u00a7 130A-143 read:\nAll information and records, whether publicly or privately maintained, that identify a person who has AIDS virus infection or who has or may have a disease or condition required to be reported pursuant to the provisions of this Article shall be strictly confidential. This information shall not be released or made public except under the following circumstances:\n(3) Release is made to health care personnel providing medical care to the patient ....\nNorth Carolina Gen. Stat. \u00a7 130A-143 mandates that all information that any person has the AIDS virus infection is \u201cstrictly confidential.\u201d However, the statute provides thirteen exceptions where release of the confidential information is permitted. One such exception permits release to \u201chealth care personnel providing medical care to the [infected] patient.\u201d The statute does not mandate release of this information to health care providers. Therefore, were it not for the Hospital\u2019s blood and body fluid isolation policy, the plaintiff would be correct in his argument that the release of this information was within his discretion. However, the plaintiff was bound by the Hospital\u2019s policy of identifying patients \u201cas being potentially infectious,\u201d and that policy is consistent with N.C.G.S. \u00a7 130A-143. Therefore, the Hospital\u2019s actions in disciplining the plaintiff for his failure to comply with the policy was not a wrongful, arbitrary, or capricious act.\nIll\nThe plaintiff argues (1) that the trial court erred in finding and concluding that the defendants\u2019 actions in suspending the plaintiff\u2019s staff privileges for three months and then in revoking his staff privileges altogether were not retaliatory for purposes of 42 U.S.C.S. \u00a7 1981, 42 U.S.C.S. \u00a7 1983 (Law. Co-op. 1986), and the First and Fourteenth Amendments to the United States Constitution, and (2) that the trial court committed prejudicial error in concluding that the Hospital did not racially discriminate against the plaintiff pursuant to 42 U.S.C.S. \u00a7 1981 when it revoked his staff privileges.\nHaving concluded that there was no state action involved in the Hospital\u2019s actions, we do not address the merits of the 42 U.S.C.S. \u00a7 1983 claim because such a claim requires state action. Tarkanian, 488 U.S. at 191, 102 L.Ed.2d at 484 (state action required under \u00a7 1983); West v. Atkins, 487 U.S. 42, 48, 101 L.Ed.2d 40, 48-49 (1988) (violator must act under color of state law). We do not address the federal constitutional claims for the same reason. Niehaus v. Kansas Bar Ass\u2019n, 793 F.2d 1159, 1163-64 (10th Cir. 1986) (state action required for claims under First and Fourteenth Amendments); Fike v. United Methodist Children\u2019s Home of Va., 709 F.2d 284, 286-87 (4th Cir. 1983) (state action required for First Amendment claim). Section 1981 affords a remedy against retaliation and discrimination in private employment, thus state action is not a prerequisite for a \u00a7 1981 action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 44 L.Ed.2d 295, 301 (1975).\nTo recover on a 42 U.S.C.S. \u00a7 1981 claim, the plaintiff was required to prove, among other things, \u201cthat he engaged in activity protected by \u00a7 1981 . . . .\u201d Goff v. Continental Oil Co., 678 F.2d 593, 599 (5th Cir. 1982); see also Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). The activities protected are the making and enforcement of contracts. Patterson v. McLean Credit Union, 491 U.S. 164, 176, 105 L.Ed.2d 132, 150 (1989). \u201cWhere an alleged act of discrimination does not involve the impairment of one of these specific rights, [i.e., the making and enforcement of contracts,] \u00a7 1981 provides no relief.\u201d Id.\nThe plaintiff argues that the prohibited acts of retaliation and discrimination occurred in the course of disciplinary action taken against him by the Hospital. The plaintiff does not argue that he was retaliated or discriminated against by the defendants in the making of a contract. Furthermore, the trial court concluded that the plaintiff did not have a contract with the Hospital. The plaintiff did not assign error to this conclusion. Therefore, the plaintiff does not have a claim for retaliation or discrimination in the enforcement of a contract. Accordingly, the plaintiff does not have a 42 U.S.C.S. \u00a7 1981 claim for retaliation or discrimination.\nIV\nThe plaintiff also argues that the trial court\u2019s fact-finding process was erroneous because the trial court virtually adopted verbatim the defendants\u2019 proposed findings of fact and conclusions of law. We disagree. Where the trial court adopts verbatim a party\u2019s proposed findings of fact, those findings will be set aside on appeal only where there is no competent evidence in the record to support them. See N.C.G.S. \u00a7 1A-1, Rule 52; Johnson v. Johnson, 67 N.C. App. 250, 256-57, 313 S.E.2d 162, 166 (1984) (proper for trial court to direct attorney to prepare proposed findings and conclusions).\nWe have reviewed the plaintiff\u2019s remaining arguments and find them to be without merit. Accordingly, the judgment of the trial court is\nAffirmed.\nJudges Parker and Cozort concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Kennedy, Kennedy, Kennedy and Kennedy, by Harvey L. Kennedy and Harold L. Kennedy,' III, for plaintiff-appellant.", "Womble Carlyle Sandridge & Rice, by Anthony H. Brett, for defendant-appellees." ], "corrections": "", "head_matter": "JONATHAN DUNBAR WESTON v. CAROLINA MEDICORP, INC., and FORSYTH MEMORIAL HOSPITAL, INC., d/b/A FORSYTH MEMORIAL HOSPITAL\nNo. 9021SC677\n(Filed 2 April 1991)\n1. Appeal and Error \u00a7 341 (NCI4th) \u2014 challenge to findings of fact \u2014 any competent evidence standard \u2014 assignment of error ineffective\nSince the proper standard on appeal to challenge the trial court\u2019s findings of fact is the \u201cany competent evidence\u201d standard, but all of plaintiff\u2019s assignments of error with regard to the trial court\u2019s findings asserted that they were \u201cclearly erroneous\u201d \u2014 the federal standard for review of the trial court\u2019s findings of fact \u2014 plaintiff\u2019s assignments of error with regard to the findings of fact were ineffective to challenge the suffi- . ciency of the evidence to support the findings.\nAm Jur 2d, Appeal and Error \u00a7 839.\n2. Constitutional Law \u00a7 105 (NCI4th)\u2014 doctor\u2019s hospital staff privileges revoked \u2014 due process violation claimed \u2014 no \u201cstate action\u201d \u2014claim not addressed\nThe court need not address plaintiff doctor\u2019s argument that defendants violated plaintiff\u2019s state and federal constitutional due process rights in suspending and revoking his hospital staff privileges, since \u201cstate action\u201d is required to trigger the protections of constitutional due process provisions, and defendant private, non-profit hospital did not engage in state action in disciplining plaintiff.\nAm Jur 2d, Constitutional Law \u00a7\u00a7 821, 822, 824; Hospitals and Asylums \u00a7 10.\n3. Hospitals \u00a7 6 (NCI3d)\u2014 revocation of doctor\u2019s hospital staff privileges \u2014 failure to follow hospital policy \u2014 no absolute discretion in doctor to withhold HIV test results\nThere was no merit to plaintiff doctor\u2019s contention that N.C.G.S. \u00a7 130A-143 gave him the absolute discretion to decide whether to divulge information about HIV test results, and that defendants wrongfully, arbitrarily, or capriciously suspended and revoked plaintiff\u2019s hospital staff privileges because of his failure to follow hospital policy, since the statute does provide that all information that any person has the AIDS virus infection is \u201cstrictly confidential,\u201d but there are thirteen exceptions where release of the confidential information is permitted, one of them being release to \u201chealth care personnel providing medical care to the [infected] patient\u201d; and the plaintiff was bound by the hospital\u2019s policy, which was consistent with N.C.G.S. \u00a7 130A-143, of identifying patients \u201cas being potentially infectious.\u201d\nAm Jur 2d, Hospitals and Asylums \u00a7\u00a7 10, 11.\n4. Constitutional Law \u00a7 88 (NCI4th) \u2014 doctor\u2019s hospital staff privileges revoked \u2014 claims of retaliation and discrimination not considered\nPlaintiff doctor had no claim for discrimination under 42 U.S.C.S. \u00a7 1983 based on defendant hospital\u2019s suspension and later revocation of plaintiff\u2019s staff privileges because no state action was involved in the hospital\u2019s actions. Nor did plaintiff have a claim under 42 U.S.C.S. \u00a7 1981 for retaliation and discrimination in the making or enforcement of a contract where the trial court found that plaintiff had no contract with defendant hospital.\nAm Jur 2d, Civil Rights \u00a7\u00a7 13, 18, 50; Hospitals and Asylums \u00a7 10.\n5. Rules of Civil Procedure \u00a7 52 (NCI3d) \u2014 findings of fact written by attorney \u2014 adoption by court proper\nThe trial court did not err in adopting verbatim defendant\u2019s proposed findings of fact and conclusions of law.\nAm Jur 2d, Trial \u00a7\u00a7 1256, 1257.\nPropriety and effect of trial court\u2019s adoption of findings prepared by prevailing party. 54 ALR3d 868.\nAPPEAL by plaintiff from judgment filed 22 November 1989 in FORSYTH County Superior Court by Judge W. Douglas Albright. Heard in the Court of Appeals 14 December 1990.\nKennedy, Kennedy, Kennedy and Kennedy, by Harvey L. Kennedy and Harold L. Kennedy,' III, for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, by Anthony H. Brett, for defendant-appellees." }, "file_name": "0370-01", "first_page_order": 400, "last_page_order": 411 }