{ "id": 8521879, "name": "R. ERNEST COHN, D.C., and the NORTH CAROLINA CHIROPRACTIC ASSOCIATION, Plaintiffs-Appellants v. WILKES REGIONAL MEDICAL CENTER and NEIL G. CASHION, JR., FRANK W. DOOLEY, CHARLES M. DRUM, JR., GEORGE FORESTER, JR., PAUL C. HOLBROOK, GAITHER M. KEENER, JR., GERALD LANKFORD, BLAKE LOVETTE, JOHN Q. MYERS and REX REEVES, AS TRUSTEES OF WILKES REGIONAL MEDICAL CENTER, Defendants-Appellees", "name_abbreviation": "Cohn v. Wilkes Regional Medical Center", "decision_date": "1994-01-04", "docket_number": "No. 9223SC1072", "first_page": "275", "last_page": "279", "citations": [ { "type": "official", "cite": "113 N.C. App. 275" } ], "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": "297 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560900, 8560934, 8560883, 8560952, 8560924 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0127-02", "/nc/307/0127-04", "/nc/307/0127-01", "/nc/307/0127-05", "/nc/307/0127-03" ] }, { "cite": "293 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525273 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0414-01" ] }, { "cite": "354 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "489", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749394 ], "year": 1987, "pin_cites": [ { "page": "262", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0258-01" ] }, { "cite": "120 L.Ed.2d 922", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "953 F.2d 154", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10516951 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f2d/953/0154-01" ] } ], "analysis": { "cardinality": 541, "char_count": 11293, "ocr_confidence": 0.751, "pagerank": { "raw": 2.1011900981159953e-07, "percentile": 0.7618171947476474 }, "sha256": "1affa0cc47edc5a765ab92c9a57ff54ffe87e77bb49d81e5fec54621dc94e98b", "simhash": "1:98c8c42975ff6cb3", "word_count": 1753 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and McCRODDEN concur." ], "parties": [ "R. ERNEST COHN, D.C., and the NORTH CAROLINA CHIROPRACTIC ASSOCIATION, Plaintiffs-Appellants v. WILKES REGIONAL MEDICAL CENTER and NEIL G. CASHION, JR., FRANK W. DOOLEY, CHARLES M. DRUM, JR., GEORGE FORESTER, JR., PAUL C. HOLBROOK, GAITHER M. KEENER, JR., GERALD LANKFORD, BLAKE LOVETTE, JOHN Q. MYERS and REX REEVES, AS TRUSTEES OF WILKES REGIONAL MEDICAL CENTER, Defendants-Appellees" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe facts of this appeal are as follows: Plaintiff chiropractor is licensed by the State of North Carolina. Plaintiff maintains his office in Wilkesboro, North Carolina, and provides chiropractic service to patients in Wilkes County. Plaintiff North Carolina Chiropractic Association (Association) is a professional association, incorporated and authorized to transact business in North Carolina. All members of the Association are chiropractors licensed under the laws of North Carolina to provide to patients care and services which are within the scope of practice of the profession of chiropractic as defined by North Carolina General Statutes \u00a7 90-143 (1990). In the years 1984, 1985 and 1987, plaintiff chiropractor made application for certain medical privileges at defendant hospital; plaintiff applied for both in-patient and out-patient privileges. Each of plaintiff\u2019s applications has been denied by defendant Board of Trustees.\nPlaintiffs allege the various reasons given for the denials of plaintiff chiropractor\u2019s applications were \u201cmere pretext,\u201d and that defendants had essentially \u201cinstituted and maintained a blanket prohibition denying access to all resources, facilities, and co-admitting and/or admitting privileges available at Wilkes Regional Medical Center to any and all chiropractors, including Plaintiff Cohn.\u201d\nPlaintiffs filed this action on 20 December 1991 asserting violations of North Carolina General Statutes \u00a7 90-153 (1990) and North Carolina General Statutes \u00a7 90-157.1 (1990). Plaintiffs sought declaratory and injunctive relief to declare and enforce their rights to administer chiropractic care to their patients in the manner and form permitted under these statutes. Defendants responded by moving for the following: (1) to hold the matter in abeyance pending certain federal litigation; (2) to dismiss the action pursuant to North Carolina General Statutes \u00a7 1A-1, Rule 12(b)(6) (1990) for failure to state a claim upon which relief can be granted, claiming the statutes in question do not prohibit hospitals from denying chiropractors the right to hospital privileges; and (3) to dismiss the Association as a party plaintiff for lack of standing.\nThis matter was held in abeyance pending the final disposition of the federal litigation relating to this matter. Once Cohn v. Bond, et al., 953 F.2d 154 (4th Cir. 1991), cert. denied, 120 L.Ed.2d 922 (1992) was concluded, defendants renewed these motions for dismissal, adding the assertion that there is no private right of action available to enforce the statutes under which plaintiffs seek relief. On 31 July 1992, the trial court dismissed the complaint, concluding \u201cthe Complaint is not barred by the statute of limitations but . . . it fails to state a claim upon which relief can be granted.\u201d Plaintiffs filed timely notice of appeal to this Court.\nPlaintiffs argue the trial court erred in granting defendants\u2019 motions to dismiss plaintiffs\u2019 complaint for failure to state a claim upon which relief can be granted.\nNorth Carolina General Statutes \u00a7 90-153 states in its entirety:\n\u00a7 90-153. Licensed chiropractors may practice in public hospitals.\nA licensed chiropractor in this State may have access to and practice chiropractic in any hospital or sanitarium in this State that receives aid or support from the public, and shall have access to diagnostic X-ray records and laboratory records relating to the chiropractor\u2019s patient. (Emphasis added.)\n\u201cWords in a statute generally must be construed in accordance with their common and ordinary meaning, unless a different meaning is apparent or clearly indicated by the context.\u201d State v. Raines, 319 N.C. 258, 262, 354 S.E.2d 486, 489 (1987) (citation omitted). We believe the Legislature\u2019s use of the word \u201cmay\u201d contrasted with the use of the word \u201cshall\u201d in North Carolina General Statutes \u00a7 90-153 set out above indicates it is not a requirement that a licensed chiropractor have access to and practice chiropractic in any hospital. We believe the straightforward meaning of these words as they are set out in North Carolina General Statutes \u00a7 90-153 does not \u201cconfer[] the absolute right on chiropractors practicing within the state to be given hospital privileges in publicly funded institutions,\u201d as plaintiffs assert in their brief.\nNorth Carolina General Statutes \u00a7 90-157.1, set out in its entirety, reads:\n\u00a7 90-157.1. Free choice by patient guaranteed.\nNo agency of the State, county or municipality, nor any commission or clinic, nor any board administering relief, social security, health insurance or health service under the laws of the State of North Carolina shall deny to the recipients or beneficiaries of their aid or services the freedom to choose a duly licensed chiropractor as the provider of care or services which are within the scope of practice of the profession of chiropractic as defined in this Chapter.\nPlaintiffs argue that reading North Carolina General Statutes \u00a7 90-157.1 in tandem with North Carolina General Statutes \u00a7 90-153 leads to the \u201cinescapable\u201d conclusion \u201cthat all North Carolina public hospitals must, upon request, admit at least one chiropractor to its staff.\u201d (Emphasis retained.) We find no merit to this argument.\nWe call attention to Cameron v. New Hanover Memorial Hospital, Inc., 58 N.C. App. 414, 293 S.E.2d 901, disc. review denied, 307 N.C. 127, 297 S.E.2d 399 (1982). Cameron was an action wherein two podiatrists brought suit against a public hospital alleging a wrongful denial of hospital staff privileges. One theory expounded by the plaintiffs in Cameron was that they were entitled to practice podiatry at the hospital under the terms of North Carolina General Statutes \u00a7 90-202.12 (1990), which states:\nNo agency of the State, county or municipality, nor any commission or clinic, nor any board administering relief, social security, health insurance or health service under the laws of the State, of North Carolina shall deny to the recipients or beneficiaries of their aid or services the freedom to choose the provider or care or service which are within the scope of practice of a duly licensed podiatrist or duly licensed physician as defined in this Chapter.\nOur Court held \u201cwe do not read G.S. 90-202.12 to require [the hospital] to grant staff privileges regardless of the standards set by its Board of Trustees which are reasonably related to the operation of the hospital. Generally, the protection offered by the statute is for patients to have the freedom to choose a qualified \u2018provider of care or service.\u2019 \u201d (Emphasis retained.) Cameron, 58 N.C. App. at 453, 293 S.E.2d at 924.\nNorth Carolina General Statutes \u00a7 90-202.12 is worded similarly to North Carolina General Statutes \u00a7 90-157.1, save the profession involved. We agree with the reasoning in Cameron, and find that the protection afforded by North Carolina General Statutes \u00a7 90-157.1, similarly, is for patients to have the freedom to choose a qualified provider of care or service.\nFinally, plaintiff makes reference to North Carolina General Statutes \u00a7 131E-85 (1988), which sets out specific criteria a governing board of a hospital is to consider when granting or denying privileges to practice in their hospital to physicians, dentists and podiatrists. Plaintiff argues that by not including chiropractors within this statute, or without enacting a similarly worded statute, the legislature articulated a different state policy concerning the profession of chiropractic, rather than one which would have allowed the denial of hospital privileges to chiropractors. We disagree.\nNorth Carolina General Statutes \u00a7 131E-85(a) concludes by noting \u201c[n]othing in this Part shall be deemed to mandate hospitals to grant or deny to any such individuals or others privileges to practice in hospitals.\u201d We do not believe the Legislature, when enacting North Carolina General Statutes \u00a7 131E-85, meant to take away the discretion afforded hospital boards to make decisions regarding other health care providers, such as chiropractors. North Carolina General Statutes \u00a7 131E-85(a) allows governing boards of hospitals to consider \u201cthe reasonable objectives and regulations of the hospital, including, but not limited to appropriate utilization of hospital facilities\u201d when granting or denying privileges to practice in their hospital. Defendant hospital could properly consider factors such as these in the case sub judice, evidenced in the resolution adopted by the Board of Trustees.\nBecause we find the complaint was deficient in failing to set forth a claim upon which relief could be granted, we need not address plaintiffs\u2019 argument that the Association has standing to bring this suit, or defendants\u2019 argument that the statute of limitations had expired in this matter.\nThe decision of the trial court is affirmed.\nJudges COZORT and McCRODDEN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Moore and Brown, by B. Ervin Brown, II, and R. J. Lingle, of counsel, for plaintiffs-appellants.", "Womble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., and M. Elizabeth Gee, of counsel, and E. James Moore, for defendants-appellees." ], "corrections": "", "head_matter": "R. ERNEST COHN, D.C., and the NORTH CAROLINA CHIROPRACTIC ASSOCIATION, Plaintiffs-Appellants v. WILKES REGIONAL MEDICAL CENTER and NEIL G. CASHION, JR., FRANK W. DOOLEY, CHARLES M. DRUM, JR., GEORGE FORESTER, JR., PAUL C. HOLBROOK, GAITHER M. KEENER, JR., GERALD LANKFORD, BLAKE LOVETTE, JOHN Q. MYERS and REX REEVES, AS TRUSTEES OF WILKES REGIONAL MEDICAL CENTER, Defendants-Appellees\nNo. 9223SC1072\n(Filed 4 January 1994)\n1. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th) \u2014 hospitals not required to give privileges to chiropractors\nThe legislature\u2019s use of the word \u201cmay\u201d instead of \u201cshall\u201d in N.C.G.S. \u00a7 90-153 indicates that it is not a requirement that a licensed chiropractor have access to and practice chiropractic in any hospital, and the statute does not confer the absolute right on chiropractors practicing within the state to be given hospital privileges in publicly funded institutions.\nAm Jur 2d, Hospitals and Asylums \u00a7 9.\n2. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th) \u2014 patient\u2019s freedom of choice \u2014no requirement that chiropractors be on qualified providers list\nThe freedom of choice protection afforded hospital patients by N.C.G.S. \u00a7 90-157.2 is for patients to have the freedom to choose a qualified provider of care or service, and the statute does not require all North Carolina public hospitals to admit upon request at least one chiropractor to their staffs.\nAm Jur 2d, Hospitals and Asylums \u00a7 9.\n3. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th) \u2014 hospital privileges \u2014 discretion in hospital boards \u2014 discretion not affected by statute\nIn enacting N.C.G.S. \u00a7 131E-85, which sets out specific criteria a governing board of a hospital is to consider when granting or denying privileges to practice in its hospital to physicians, dentists, and podiatrists, the legislature did not intend to take away the discretion afforded hospital boards to make decisions regarding other health care providers, such as chiropractors.\nAm Jur 2d, Hospitals and Asylums \u00a7 9.\nAppeal by plaintiffs from order entered 11 August 1992 by Judge Julius A. Rousseau in Wilkes County Superior Court. Heard in the Court of Appeals 30 September 1993.\nMoore and Brown, by B. Ervin Brown, II, and R. J. Lingle, of counsel, for plaintiffs-appellants.\nWomble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr., and M. Elizabeth Gee, of counsel, and E. James Moore, for defendants-appellees." }, "file_name": "0275-01", "first_page_order": 305, "last_page_order": 309 }