Cypress v. Newport News General and Non-Sectarian Hospital Association, Inc. Appellant's Brief

    ■United States (Enurt nf Appeals
F oe the F ourth Circuit

No. 10,672

I n  t h e

George C. Cypress, et al.,

-v.-
Appellants,

T he Newport News General and N on-Sectarian 
H ospital A ssociation, I ncorporated, et al.,

Appellees.

on appeal from the united states district court for the 
EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION

APPELLANTS’ BRIEF

J ack Greenberg 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New Yoi'k, New York

P hilip W alker 
648 25th Street 
Newport News, Virginia

Attorneys for Appellants

Conrad K. H arper 
Of Counsel



I N D E X

PAGE

Statement ..............................................................................  1

The Pleadings ....................................................   2

Summary of Pacts ....................................................  4

Recital of Testimony ................................................  7

District Court Opinion .............................    22

Questions Presented ..........................................................  27

A rgument—

I. Negro Physicians Are Excluded Prom Staff 
Membership at Riverside Hospital in Violation 
of the Fifth and Fourteenth Amendments when
(A) Whites Are Readily Placed on the Staff,
(B) the Qualifications of the Negroes Are Un­
questioned (C) the Hospital Presents No Evi­
dence of Any Non-Racial Ground for Exclusion 
and (D) Three-Fourths of an All-White Staff
Must Vote for a Negro’s Admission ................... 28

A. Negro Doctors Are Excluded From Practice
at Riverside Hospital  .......................................  28

B. The Hospital May Not Exclude Qualified 
Negroes by Means of a Procedure Which 
Burdens Negro, and Not White, Applicants .... 32

II. Appellants Are Entitled to Injunctive Relief 
Against the Hospital’s Practice of Assigning 
Rooms on the Basis of Race ........................... 36

Conclusion ................................................ ............. ...........  39



11

T able of Cases

page

Anderson v. City of Albany, 321 F.2d 649 (5th Cir.
1963)  ......................................................................... . 38

Anderson v. Martin, 375 U.S. 399 ..................................  32

Chambers v. Hendersonville Board of Education,
F .2 d ------ (4th. Cir. 1966) .................................29,30,33,35

Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ....... ....36, 38
Evans v. Newton, 382 U.S. 296 ....................................... 38
Evers v. Dwyer, 358 U.S. 202 ......................................  38

Franklin v. Giles County School Board,------ F.2d ——
(4th Cir. 1966) ................................................................  33

Goss v. Board of Education, 373 U.S. 632 ................... 32
Greene v. McElroy, 360 U.S. 474 ........ ....... ........ ...........  33
Griswold v. Connecticut, 381 U.S. 479 ........................... 38

Hall v. St. Helena Parish, 197 F. Supp. 649 (E.D. La.
1961), aff’d 368 U.S. 515 ..............................................  32

Hawkins v. North Carolina Dental Society, 355 F.2d
718 (4th Cir. 1966) .................................................. 29,33,35

Hernandez v. Texas, 347 U.S. 475 ................................  29
Hunt v. Arnold, 172 F. Supp. 847 (N.D. Ga. 1959) .....  34

Interstate Commerce Commission v. Louisville and 
N. R. Co., 227 U.S. 88 ................................ ...............  33

James v. Duckworth, 170 F. Supp. 343 (E.D. Va.
1959) ..................................... .......... .................. .......... . 32

Johnson v. Branch,----- - F .2d ------  (4th Cir. 1966) 32
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 

U.S. 123 ........................................................ ..... A W -33



Ill
PAGE

Louisiana v. United States, 380 U.S. 145 (1965) ...........  34
Lucas v. Colorado General Assembly, 377 U.S. 713.....  32
Ludley v. Board of Supervisors Louisiana State Uni­

versity, 150 F. Supp. 900 (E.D. La. 1957) aff’d 252 
F.2d 372 (5th Cir. 1958) cert. den. 358 U.S. 819 ...... 34

Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) ........... 33
Morrison v. Davis, 252 F.2d 102 (5th Cir. 1958) .......  38

Pierre v. Louisiana, 306 U.S. 354 ................................... 35

Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ...............32, 38

Rackley v. Orangeburg Regional Hospital, 310 F.2d 
141 (4th Cir. 1962) .......... .......... .................................36, 38

Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959
(4th Cir. 1963) cert, denied 376 U.S. 938 .....32, 35, 36, 38

Slochower v. Board of Education, 350 U.S. 551 .........  33

United States v. Logue, 344 F.2d 290 (5th Cir. 1965) .... 34 
United States v. Mississippi, 339 F.2d 679 (5th Cir.

1964) .................................................................................. 34
United States v. Wilbur Ward, 345 F.2d 857 (5th Cir.

1965) .................................................................................. 34

Wieman v ......Updegraff, 344 U.S. 183 ...........................  32

Other A uthorities

Merck Manual of Diagnosis and Therapy, 10th Ed.,
1961 ......      37

Virginia Administrative Agencies Act, Va. Code
§9-6.10 33



I n  t h e

Itttfrfc (Emtrt of Appeals
F ob the F ourth C ircuit 

No. 10,672

George C. Cypress, et al..
Appellants,

T he N ewport News General and N on-S ectarian 
H ospital A ssociation, I ncoporated, et al.,

Appellees.

on appeal from the united states district court for the

EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION

APPELLANTS’ BRIEF

Statement

This is an appeal from an April 21, 1966 order of the 
District Court for the Eastern District of Virginia dis­
missing on the merits the claims of Negro physicians and 
patients to nondiscriminatory medical staff admission and 
use of treatment facilities at a Hill-Burton Act hospital, 
the Riverside Hospital of Newport News, Virginia (299a). 
The opinion of the district court is reported at 251 F. Supp. 
667 (282-296a).



2

The Pleadings

Plaintiffs brought this action October 11, 1963 on behalf 
of themselves and others similarly situated to enjoin the 
hospital, and its administrator, from continuing to deny 
staff membership to Negro physicians and segregating 
Negro from white patients in violation of the Fifth and 
Fourteenth Amendments to the Constitution (5-16a). The 
complaint asserted “federal question” and “ civil rights” 
jurisdiction under 28 U.S.C., §§1331, 1343(3); 42 U.S.C., 
§§1981, 1983 (5a, 6a) and, in summary alleged that (1) 
Negro physicians practicing in Newport News had been 
refused medical staff membership pursuant to the River­
side’s policy of excluding Negroes; (2) Darnell Jackson 
and Sandra Rose Clark, children suffering from sickle cell 
anemia, a chronic disease requiring frequent hospitaliza­
tion, desire treatment at Riverside but the hospital ex­
cludes their physician, Dr. George C. Cypress, and segre­
gates patients by race; and (3) Riverside is a tax exempt 
and state regulated hospital which has received approxi­
mately $2,250,000.00 from the United States pursuant to a 
“ state plan” for hospital construction formulated by the 
Commonwealth in accordance with the specifications of 
the Hill-Burton Act (13a, 14a, 11a).

On December 5, 1963, the hospital moved to dismiss the 
action on the ground that the court lacked jurisdiction 
over the subject matter (17a, 18a). On March 2, 1964, the 
hospital answered denying that it refused to admit Ne­
groes to its staff or segregated patients on the basis of 
race (19a, 20a) and affirmatively alleging that denial of 
staff membership to Dr. Cypress “ was for just and good 
cause and was not on the basis of race” (20a). It was 
also denied that the hospital was subject to the Fourteenth 
Amendment, that “ separate but equal” provisions of the



3

Hill-Burton Act and regulations were unconstitutional, and 
that the suit was a proper class action (19-21a). Beceipt 
of funds from state and federal governments was admitted 
(20a).1

At the trial, held July 14-15, 1964, appellants offered the 
testimony of Dr. Cypress (72a) and Dr. C. Waldo Scott 
(100a) another Negro physician who had been refused 
staff membership. Three white physicians, Dr. Allan But­
ler (113a), Dr. Samuel Standard (164a) and Dr. Colvin 
Salley (183a) testified as to the qualifications of Dr. Cy­
press and Dr. Scott. Two Negro physicians, Dr. B. E. 
Beid (236a) and Dr. G. P. Carter (237a) testified to their 
interest in the class action brought by Dr. Cypress; Dor­
othy Wright (188a), mother of Darnell Jackson, testified 
to her desire to have her child treated by Dr. Cypress at 
the Biverside Hospital.

The hospital called as its sole witness the administrator, 
Nelson L. St. Clair, Jr. (194a).

For convenience of presentation, a summary of facts is 
followed by a recital of testimony on an individual basis.

1 The present hospital facility was financed in part by a grant of 
$3 million from the United States and the Commonwealth of Virginia 
under the Hill-Burton hospital construction program (25a). The federal 
grant agreement is in evidence as plaintiffs’ exhibit 9 but has not been 
printed. The hospital also receives appropriations from the City of New­
port News, Virginia and the Commonwealth. During the years 1961-1963 
the hospital received the following sums from the City (27a) :

1961 .....................................  $43,842.82
1962 .....................................  $73,133.69
1963 .....................................  $68,295.97

During the period 1961-1963 the hospital received the following ap­
propriations from the Commonwealth:

1961 ..........................
1962 ..........................
1963 ..........................

$6,326.31
$7,873.51
$7,792.89



4

Summary of Facts

Riverside Hospital is a modern 323 bed hospital which 
supplies the Newport News area with a wide range of 
medical services, the best facilities, and its highest stand­
ard of patient care (78a, 108-09a, 137a, 224-25a). Approxi­
mately 169 whites and 18 Negroes practice medicine in 
the community but Negroes have not been granted staff 
membership (76a). The medical staff of the hospital con­
sists of 117 whites and no Negroes (76a, 108a, 25a, 28-39a). 
As no patient may be admitted or treated by a physician 
who is not a member of this staff (41a), Negro physicians 
are unable to use the hospital although Negroes who are 
patients of white physicians may be treated at Riverside. 
Six of the seven Newport News pediatricians certified as 
specialists by the American Board of Pediatrics are on 
the medical staff (33a, 73a, 77a, 78a).2 They are white; 
the other pediatrician, Dr. Cypress, a Negro, has been 
denied membership on the staff (240a, 242a). There are 
19 surgeons in Newport News, eighteen whites and one 
Negro, Dr. C. Waldo Scott (Tlla, 112a). Seventeen of 
the 18 whites are members of the Riverside surgical staff 
(34a, 35a) ;3 the sole Negro, Dr. Scott, has been refused 
staff membership (241a). While Dr. Scott is certified as 
a specialist in surgery by the American Board of Surgery, 
9 of the white physicians on the surgical staff are not (33- 
35a). Tables A, B, C, and D reflect these statistics:

2 Specialty boards examine the training and skill of physicians and 
certify them as licensed specialists (72a, 102a). Some hospitals will not 
consider a physician for staff membership unless he is board certified 
in his specialty (173a) for the likelihood of finding an “able” physician 
is “ far greater”  among certified specialists (173a). It is only proper to 
refuse staff membership to board certified physicians “ under appropriate 
specific considerations”  (139a).

3 Dr. Scott testified he believed the number was 15, but the hospital’s 
roster of staff members, appended to answer to interrogatory Number 1, 
indicates the correct number of surgical staff members is 17 (33-35a).



5

MEDICAL STAFF MEMBERSHIP AT RIVERSIDE 
HOSPITAL, NEWPORT NEWS, VIRGINIA4

TABLE A

Total number Total number
of physicians 
in community White Negro

of medical 
staff members White Negro

187 169 18 117 117 0

TABLE B

Board certified Board certified
pediatricians 
in community White Negro

pediatricians on 
hospital staff White Negro

7 6 1 6 6 0

TABLE C

Surgeons in 
community White Negro

Surgeons on 
hospital staff White Negro

19 18 1 17 17 0

TABLE D

Board certified Board certified
surgeons in 
community White Negro

pediatricians on 
hospital staff White Negro

9 8 1 8 8 0

Dr. Cypress on two occasions and Dr. Scott once have 
applied for and been denied membership on the medical

4 Source: 28-39a; 41a; 76-78a; 108-112a; 219a; 226a.



6

staff (240-242a). Reasons were not assigned for rejections 
of their applications, and when Dr. Cypress sought a 
conference with hospital officers, the hospital did not reply 
to his letter (75a, 107a, 206a, 207a).

An overwhelming body of evidence, including testimony 
of eminent expert witnesses and the Health Director of 
the City of Newport News, supports the finding of the 
district court that both Dr. Cypress and Dr. Scott are 
“highly qualified according to this record” (284a). The 
education, ability, character, and experience of the two 
Negro doctors was not seriously contested by the hospital 
at trial although it had alleged previously that Dr. Cypress 
was denied membership for “ just and good cause” (20a), 
and had indicated, as shown by the pre-trial order, that 
white physicians would be called to testify (45a, 46a). No 
evidence was adduced that the Negro doctors are unquali­
fied or that any professional or ethical disability explained 
denial of staff membership. The hospital’s only witness, 
administrator St. Clair, conceded that both physicians 
qualified under standards set forth by the by-laws of the 
staff (221a, 226a, 262a, 254a):

By the Court:

Q. I take it that you have no reason to point out 
to me in any respect wherein either Dr. Cypress or 
Dr. Scott are lacking in training, experience and dem­
onstrated competence? A. No, sir.

The hospital’s evidence consisted of testimony from the 
administrator describing the procedures through which an 
application passed from credentials committee (which ap­
proved both Negro doctors) to specialty staffs (which 
transmitted Dr. Cypress’ application without recommen­
dation and Dr. Scott’s with recommendation that it be



7

rejected) to the medical staff where a successful appli­
cant requires affirmative votes from three fourths of the 
117 doctor staff voting by secret ballot (where both ap­
plicants failed to receive the necessary votes) to the Board 
(which always ratifies the decision of the medical staff) 
(195a, 253-55a, 206a, 226a, 67a). The failure of the spe­
cialty staff to enter a recommendation with respect to Dr. 
Cypress was “the first time that it happened” (206a). 
Throughout this process no hearing is held or findings 
entered with respect to the qualifications of an applicant 
and no reasons are assigned to a denial of membership 
(206a, 207a, 210a, 107a). The by-laws of the medical staff 
provide that the specialty staff will submit a “ report”  to 
the medical staff but none was submitted in the cases of 
the Negroes (207a, 254a). When questioned about this re­
quirement the administrator at first denied its existence 
(207a), then testified he had no recollection of written 
reports ever being submitted by the specialty staff (207- 
210a).

With respect to patient segregation the evidence shows 
that: “ Medical floors are integrated to an extent. We do 
not put Negro and white patients in the same room” (63a). 
Only when parents are consulted and Mr. St. Clair deter­
mines there will be no conflict, are Negro and white 
pediatric patients placed in the same rooms. The court 
found “Riverside concedes that its practice is not to assign 
Negro and white patients to the same room” (295a).

Recital of Testimony

George C. Cypress

Dr. Cypress is a licensed, Negro, medical doctor certified 
as a pediatric specialist by the American Board of Pedi­
atrics (72-73a). He has been Chief of Pediatrics at a



8

United States Army Hospital, a teacher and consultant 
at numerous hospitals and government agencies and a 
member of the staff of Dixie Hospital in Hampton, Vir­
ginia and Whittaker Hospital in Newport News, where he 
is Chief of Pediatrics and Medical Director (73a, 74a, 79a, 
81a, 244-48a).

In April, 1961, and again in April, 1962, Dr. Cypress 
applied for membership on the medical staff at Riverside 
(74a). Subsequently, he received letters from the hospital 
stating, without elaboration, that his application for staff 
membership had been denied (74-75a, 240a, 242a). From 
the time he submitted these applications until receipt of 
letters of rejection, Dr. Cypress was not asked to appear 
before any body of the hospital or otherwise contacted 
(75a). After the second application was denied a letter 
was written to the hospital requesting a conference to 
discuss reasons for denial.6 The hospital did not reply 
(75a).

Eighteen other Negroes practice medicine in the Newport 
News-Hampton area, but none is a member of the River­
side medical staff (76a). Of the seven pediatricians prac­
ticing in the area, Dr. Cypress is the only nonwhite (77- 
78a), and the only pediatrician in the area who has been 
refused staff membership at the hospital (78a).

Dr. Cypress applied for staff membership because “ Riv­
erside Hospital is the best-equipped hospital on the penin­

6 The second application listed one organization, the Virginia Pediatric 
Society, of which Dr. Cypress was not a member (77a, 83a). For six 
years he had received notification of meetings from the Society (77a) 
and attended its meetings, which were held simultaneously with a medical 
society of which he was a member, the American Academy of Pediatrics, 
Virginia Section. Dr. Cypress testified that he mistakenly considered 
himself a member of the Virginia Pediatric Society (77a, 83a) and the 
district court found no evidence that the misrepresentation “was ever 
considered in rejecting the application”  or even “ discovered prior to the 
preparation for the trial”  (287a).



9

sula” and “I would like to be at the best hospital in the 
area so that I can give the best care to my patients” (78a, 
86a). Another factor was the intern and resident staff of 
the hospital which relieves “ some of the burden” of car­
ing for patients and provides opportunity for consulta­
tions about patient care (78a, 93a, 95a). Although he 
presently places patients in Dixie and Whittaker hospitals, 
Whittaker does not have any interns or residents. Dixie 
does not have a full staff, and the few associated with 
the hospital are not used in pediatrics (97a). As the only 
Negro pediatrician in the Newport News-Hampton area, 
Dr. Cypress is a busy doctor but when questioned by the 
hospital’s attorney he stated that, he did not believe his 
workload would be a valid ground for denial of member­
ship. Noting that Riverside may limit or withdraw staff 
membership when a physician does not comply with hos­
pital obligations, he thought it premature to assume his 
workload would interfere with his practice at Riverside 
(83a, 85a, 88a).6 He stated that if he were on the staff he 
would consider dropping other hospital affiliations but he 
wanted the opportunity accorded to white physicians to 
make such a decision based on his actual workload after 
admission (86-88a). He thought he was entitled to “pick 
the best hospital” in order to “give the highest quality of 
medical care”  (85-86a). Dr. Cypress also testified that he 
had received no complaints about his availability; that al­
though there is a shortage of physicians, especially pedia­
tricians, in Newport News, he had never turned down a 
patient; and that whenever unavailable he arranged for 
a physician to “ cover” his cases (83a, 84a, 94a).

6 Compare 154a, 219a, 222a, 262a, 263-269a,



10

Dr. Charles W aldo S cott

Dr. Scott is a Negro physician, licensed to practice in 
Virginia, and certified as a specialist in surgery by the 
American Board of Surgery (100-01 a). A  cum laude grad­
uate of Howard University and University of Michigan 
Medical School, he also holds a M.S. degree in zoology 
from Howard University (100-01a), is a fellow of the 
American College of Surgeons (102a) and a member of 
a number of medical societies (102a). Aside from being 
chairman of the surgical staff at Whittaker Hospital, he 
is a staff member at two other hospitals, a Veterans Ad­
ministration hospital consultant, and a former instructor 
in general surgery at the Howard University Medical 
School (103-04a, 249a).

In March, 1963, Dr. Scott applied for membership on 
the medical staff at Riverside (106a). He sought member­
ship because Riverside is a modern hospital, large enough 
to have “innovations” for the comfort and care of patients 
and specialists with whom he would like to consult (108- 
09a). A  number of his patients had expressed disappoint­
ment at not being able to be placed in Riverside (109a). 
In June, 1963, he received a letter from the administrator 
stating only that his “application for staff membership 
at Riverside hospital has been denied” (107a).

There are a total of 169 white physicians and 18 Negroes 
practicing in the area; 117 of these—all white—are mem­
bers of the medical staff of the Riverside hospital (108a). 
Dr. Scott is the only Negro of the 19 general surgeons 
practicing in the community. He believed that approxi­
mately 15 of the 18 white surgeons are of the Riverside 
surgical staff (lll-12a).

Dr. Scott described his interest in the litigation as fol­
lows : “ I am interested not only for my own benefit, but for



11

the benefit of others who are practicing and others who 
will be coming to the area who are similarly situated as 
are we” (109a).

The hospital declined to cross-examine Dr. Scott (112a). 

Dr. A llan B utler

Dr. Butler, Professor Emeritus at the Harvard Medical 
School and former Chief of Children’s Services at Mas­
sachusetts General Hospital, was qualified by the court as 
an expert in appraising the qualifications of pediatricians 
for hospital staff membership:

Any man who had had the vast experience that Dr. 
Butler has had would, of necessity, know, of course, 
how pediatricians must deal with hospitals and, in a 
general sense, how hospitals deal with pediatricians 
(117-18a).7

Dr. Butler directly observed Dr. Cypress practice medi­
cine at office and hospital and surveyed his educational 
record before appraising his qualifications (121-24a). He 
was impressed by the cleanliness of the office, the caliber 
of the equipment and the competence of Dr. Cypress’ nurse

7 Dr. Butler has practiced pediatries in Massachusetts and Michigan 
(141-142a) and taught medicine at Harvard Medical School, Infants’ 
and Children’s Hospitals of Boston, Massachusetts General Hospital, 
Eye and Ear Infirmary of Boston, Stanford and Tulane Universities 
(114a). He has been a member of the staff at Massachusetts General 
Hospital, the Eye and Ear Infirmary, Boston Lying In Hospital, Tux- 
bury State Hospital, Boston Psychopathic, Metropolitan Hospital of 
Detroit and Stanford University Medical Center (114a). He is a former 
President of the New England Pediatric Society and the American 
Pediatric Society and has been an official or a member of the Society 
for Pediatric Research, Society for Clinical Investigation, the Associa­
tion of American Physicians and the American Academy of Pediatrics 
(115a). Prom 1929 to 1960, he published over 100 papers on medical 
subjects (115a). At Massachusetts General Hospital and Metropolitan 
Hospital in Detroit his duties included organizing the medical staff (116a, 
143a).



12

and secretary (121a). He was “very impressed” by the 
utilization of the nurse in caring for office patients (122a). 
Record-keeping was “ excellent” (122a). The choice of 
drugs and use of medications shown on records examined 
by Hr. Butler was also “ excellent” (“and this is a part of 
medical therapy that can either be done very well or very 
badly” ) (122a). He observed Dr. Cypress examine and 
treat a number of office patients and found examination 
and administration of therapy “ good” (122-23a). “ Through­
out” he was impressed by Dr. Cypress’ “wise utilization 
of consultants” (123a). At Whittaker Hospital, he watched 
Dr. Cypress treat seven patients, including three prema­
ture infants, and went over their medical records “and 
again it was good” (123a).

The opportunity Dr. Butler had to observe Dr. Cypress’ 
care for his patients “ is probably a more thorough first­
hand contact in going over his records and watching him 
take care of patients than I have had in the opportunity 
to appraise the qualifications of . . . the perhaps fifty physi­
cians—maybe more—that I examined as Chief of Clinical 
Services at the Metropolitan Hospital in building up the 
staff of that hospital” (123a). Based upon observation, 
and consideration of Dr. Cypress’ record, Dr. Butler testi­
fied that he would recommend him for the staff at hos­
pitals at which Dr. Butler had held positions of responsi­
bility, including “ one of the outstanding hospitals of the 
United States” (116a-124a).

Dr. Butler testified that Dr. Cypress’s large practice 
might give him another reason for endorsing Dr. Cypress 
(125a)8 for a major consideration in granting staff mem­

8 Dr. Butler’s favorable opinion of Dr. Cypress would not be modified 
by whether he had correctly listed membership in the Virginia Pediatric 
Society, for he himself often confused medical societies (120a, 152-153a). 
Dr. Cypress “ justifiably confused” the American Aeademy of Pediatrics, 
Virginia Section and the Virginia Pediatric Society (152a).



13

bership is “ How could we help this doctor in his services 
to the people he is caring for in the community” 9 (134a). 
His recommendation of Dr. Cypress would not be affected 
by the number of other staff appoitnments Dr. Cypress 
might have for numerous staff appointments are not 
grounds for refusing membership (125a, 127a). This is es­
pecially true if the added hospital is the best in the com­
munity,10 has interns and residents,11 and increases a doc­
tor’s access to consultants (127a-29a). The majority of 
practicing physicians in the United States are affiliated 
with more than one hospital (160a) and the majority of 
pediatricians on the staff at the Massachusetts General 
Hospital, hold appointments at three or more hospitals, 
often at distances of 15 to 25 miles from their offices (125a- 
27a). Dr. Butler stated that he would “ not necessarily” 
grant staff membership to a doctor on the basis of spe­

9 Even if a physician is not entitled to full privileges he should still 
be taken on a staff with limited privileges if this would facilitate the 
services he is rendering to the community (134a). Dr. Butler had even 
recommended persons of whose judgment he did not think too highly 
because such a doctor would be in contact with the physicians at the 
hospital and thereby improve the service he would render to his patients 
(135a).

10 A major consideration in the choice of hospital to admit a child 
who is not critically ill is to get the child to a pediatric unit where there 
is proficiency in nursing, proper attention to psychological stress, and 
entertainment. Such a pediatric unit cannot be provided economically if 
smaller than 25 beds. Riverside hospital has a pediatric unit of the size 
which ought to make it able to provide these services (162-163a, cf. 225a).

11 The assistance o f interns and residents makes “ all the difference in 
terms of the beating the doctor takes” (155a). Responsibilities are 
delegated to them (156a) and this is a timesaving procedure for the 
doctor (156a). Working in a hospital which does not have interns or 
residents is a tremendous burden on a doctor (156-158a). Dr. Butler 
conceded that a problem in American medicine is treating seriously ill 
patients in more than one hospital when there are no interns and resi­
dents in the hospitals but stated this problem is not pertinent to denial 
o f staff membership, for it affects a majority o f practicing physicians 
in the United States (159-60a) and restricting a physician’s practice to 
one hospital is not the way to solve it (158a).



14

cialty certification alone, but denial of membership to a 
board certified physician is only proper “under appro­
priate specific considerations” (138a-39a).

When asked by counsel for the hospital to comment on 
the fact that other pediatricians in the Newport News 
area have reduced the number of their staff affiliations, 
Dr. Butler testified (160a-61a):

A. Right. And how do you know but what if Dr. 
Cypress is on the staff of the Riverside Hospital the 
way these other pediatricians are that, he, too, wouldn’t 
restrict his care of hospitalized patients more to River­
side than he can now do? My guess is he would.

Q. It could well be. A. Right.
Q. The point is, though, that he would be on the 

staffs of others and would have to divide his time. 
A. No, he might resign from the staffs of others if he 
had the privilege—

Q. In other words, you are getting into speculation 
now of what he might do? A. Well, this has been 
done by other members of the staff of the Riverside 
Hospital. After joining the Riverside Hospital, they 
have lessened their staff membership in other hos­
pitals.

Dr. Samuel Standard

Dr. Standard, a specialist in surgery and Director of 
Surgery at Morrisania Hospital in New York City (164a), 
was qualified by the court “ in the field of general surgery” 
and also “in his capacity as a director of surgery for 
various hospitals” (167a).12 Dr. Standard has “unique

12 Before becoming Director o f Surgery, Dr. Standard was in the 
private practice of surgery (,164a). Prom 1939 to 1950 he was Director 
of Surgery at Monteflore Hospital in New York and from 1950 to 1962 
he was Director of Surgery at Sydenham Hospital in New York (164-



15

experience” in appraising the qualifications of “ somewhere 
around a hundred” (165a, 167a) surgeons and a number 
of hospitals for the Hospital Accreditation Committee 
(composed of representatives of the American Medical 
Association, American College of Surgery, and the Ameri­
can Board of Surgery) and also for organizations such 
as the Health Insurance Plan of New York (165a-66a).

Dr. Standard observed Dr. Scott perform surgery at 
the Whittaker Hospital, appraised a random selection of 
his charts, discussed professional problems, and surveyed 
his educational record (168-69a). The time spent ob­
serving Dr. Scott was “as much, or perhaps more than” 
that given those considered for staff membership at Dr. 
Standard’s hospitals (173a). In his opinion Dr. Scott is 
a highly qualified surgeon and a graduate of a highly 
rated medical school with an unusually good educational 
record (168a-70a). He has a “ flawless technique” in the 
operating room (166), and is “technically well above the 
average” (170a). “ [H ]e has a fine knowledge of both 
preclinical medicine and clinical medicine” (169a). “ On 
the whole his charts would stand up well in any accredited 
hospital” (171a). The times of his operations are those 
“any meticulous surgeon would take” (171a). “He has a 
sense of confidence and serenity which a young surgeon 
must develop . . .” (172a). Based on direct observation 
and educational qualifications, Dr. Standard would be very 
happy to have a man of Dr. Scott’s caliber on the surgical 
staff of his hospital “as an example for a group of resi­
dents” (172a).

65a). Dr. Standard is a member of county, state and national medical 
associations and a member of the New York Surgical Society and New 
York Cancer Society (166a). He is a member o f the American College 
of Surgeons and a diplomat of the American Board of Surgery (166a) 
and is presently professor of clinical surgery at New York University 
and Bellevue Medical Center (165a).



16

Dr. Standard also relied on Dr. Scott’s certification by 
the American Board of Surgery, a prerequisite for staff 
membership at Dr. Standard’s hospitals (172a-73a). A l­
though board certification is not the sole basis on which a 
surgeon should be granted membership (180a), “ I think 
if we were to take a hundred board certified men and a 
hundred non-board certified men, the likelihood of our 
finding a group that were less able would be far greater 
in the latter group” (173a).

Dr. Standard agreed with Dr. Butler as to the value of 
association with a hospital which has interns and resi­
dents.13 A house staff of interns and residents “ actually 
does the day labor of taking care of patients” (174a). 
The “ important” decisions are made by the attending staff 
(174a) but the “ details, say, of putting a tube down a 
man’s stomach or putting a catheter into his vein or some­
thing like that” are done by the interns and residents 
(174a). These duties which are part of the education of 
the residents and interns “ really [take] the load off the 
surgeon” (174a).

D r, Colvin W . Salley

As Health Director of the City of Newport News since 
1961, Dr. Salley is responsible for the health of the citizens 
of the City (183-84a). A retired colonel in the U. S. Army 
Medical Corps, he was commanding officer at the Fort 
Eustis, Virginia army hospital until 1961 where he was 
Dr. Cypress’ supervisor (184a, 186-87a) when Dr. Cypress 
was employed as a civilian pediatrician, first on a full­
time, and later on a part-time, basis (186a). Dr. Salley’s 
views of Dr. Cypress’ character and ability are as follows: 
He never received complaints about Dr. Cypress, “Nothing

13 See note 11 supra.



17

but praise” (185a). Dr. Cypress now runs a weekly clinic 
for poor children at the Health Department which he has 
never failed to meet (185a). His performance at the clinic 
has been “ superior” (185a). Sick children “with not a cent 
of money”  referred to him by Dr. Salley are always ac­
cepted (185a). Dr. Salley had recommended Dr. Cypress 
for staff membership at Riverside Hospital because in 
29 years of medical practice he has “never been associated 
with a better pediatrician than Dr. George C. Cypress” 
(186a).

D orothy W right

Dorothy Wright works at a laundry at Fort Eustis 
(189a) and is the mother of a thirteen year old Negro 
child, Darnell Jackson, who has suffered from sickle cell 
anemia since 1953 (189a). The child has been treated at 
Riverside and Whittaker hospitals in the past by three 
different doctors, but is now a patient of Dr. Cypress 
(190a). If the child has to go to the hospital again, she 
desires that the child be treated at Riverside because it 
is new and closer to home. She also desires to use Dr. 
Cypress if the child is hospitalized because his treatment 
seems to have helped the child (191-92a).

Dr. R. E. R eid

Dr. Reid is a Negro physician licensed to practice in 
Virginia who has practiced in Newport News for 29 years 
(236-37a). He is interested in obtaining staff member­
ship at Riverside Hospital although he has not applied 
for membership (236-37a). He stated his interest in this 
litigation as follows (236a) :

A. Well, I am a Negro, as we all know, and I feel
that anything that would go against him would go



18

against me so far as availability to practice in any 
hospital in the community, particularly the Eiverside 
Hospital.

He. Gregory P. Carter

Hr. Carter is a licensed Negro physician who has prac­
ticed in Newport News for approximately 16 years (237- 
38a). He would like to become a member of the Eiver­
side staff, but he has not applied (238a). In bringing this 
suit, Hr. Carter feels that Hr. Cypress represents him 
(237a).

Nelsox L. St. Clair, J r.

Administrator St. Clair has served in that capacity or 
as acting or assistant administrator since January, 1961 
(50a, 63a).14 Hr. Cypress’ first application for member­
ship was approved by the Credentials Committee, but was 
sent from the pediatric staff to general staff without rec­
ommendation, the first time such a procedure had been 
used (52-53a, 206a). When Hr. Cypress reapplied in 1962, 
the application was not reprocessed because less than a 
year had elapsed since the first application but Hr. Cypress 
was not notified of this failure to reprocess (53a, 75a). He 
knew of no reason for Hr. Cypress’ rejection other than 
the fact that he had failed to obtain the necessary three- 
fourths votes of the medical staff (54-55a). Hr. Scott’s 
application was approved by the Credentials Committee 
and the application was then forwarded to the surgical 
staff which recommended to the medical staff that member­

14 Mr. St. Clair received a Master’s Degree in hospital administration 
in 1961 from the Medical College of Virginia. As part of his education 
he was administrative resident of Norfolk General Hospital (194a).



19

ship not be granted. Dr. Scott did not obtain the neces­
sary three-fourths vote (56a).

Mr. St. Clair did not attend the meetings which consid­
ered the applications of the Negro physicians (57a) and 
the only contact he has had with Dr. Scott or Dr. Cypress 
was a discussion with the former when he picked up the 
membership application. Dr. Scott had asked if Negro 
physicians were permitted to apply and was told that he 
was at liberty to apply (227a, 232a). After the applica­
tions were submitted, there was no discussion with either 
Negro (207a). The specialty staffs did not submit reports 
to the general staff although the by-laws of the hospital 
specify that such a report is to be made (207-09a). When 
submitted, these reports are never in writing (209-10a).

State license to practice medicine does not automatically 
qualify a man to be a member of the staff, nor is board 
certification alone sufficient, but Mr. St. Clair had no 
information that Dr. Cypress or Dr. Scott are lacking in 
training, experience and demonstrated competence as 
physicians (221a). The hospital has not, moreover, re­
jected the application of a board certified pediatrician 
other than Dr. Cypress (205a).

Mr. St. Clair described the procedure employed with 
respect to applications for staff membership. Article III 
of the By-laws of the staff contains the only provisions 
which refer to staff membership (224a, 252-56a). An ap­
plication is presented to the Administrator by the physician 
and after references have been checked and letters of rec­
ommendation received, it is presented to the Executive 
Committee of the medical staff, which acts as the Creden­
tials Committee (195a). I f the physician’s application is 
in order, as were Cypress’ and Scott’s (226a), it is sent 
to the staff of the physician’s specialty, which normally



20

recommends whether the application should be approved 
by the general staff. From the specialty staff the appli­
cation is sent to the 117 doctor general staff, wThich votes 
either for or against the application (195a, 206a), three 
fourths majority being necessary for approval (206a). 
After the vote, the application is presented to the Board 
of the hospital for final action (195a).

Mr. St. Clair’s testimony made it clear that physicians 
placed on the staff had appointments at other hospitals for 
after becoming staff members many physicians have re­
signed staff memberships at other hospitals (202a, 205- 
06a, 218a). He also described the manner in which the 
hospital assures that physicians meet staff obligations. 
Hospital committees appraise the work of physicians and 
report any deficiencies (219a) and membership privileges 
may be limited on the basis of training, experience and 
demonstrated competence (220a, 224-25a). In addition, 
physicians may be placed on the staff for a probationary 
period (223a).

At a deposition taken prior to trial, Mr. St. Clair testified 
that since 1961, when he was employed by the hospital, he 
believed only three applicants other than Doctor Cypress 
and Doctor Scott had been rejected. Under questioning 
he could recall two such cases, only one involving a physi­
cian. A dentist was rejected because his residence was in 
Norfolk. A  doctor applied who had been accepted at one 
or two other local hospitals but it was felt that he might 
not meet Riverside’s standards of practice (63-64a). Dur­
ing this period (1961-64) approximately 20 doctors had 
been admitted to Riverside’s staff (63-65a). At trial, in 
response to inquiry from his attorney, Mr. St. Clair stated 
that a total of eleven or twelve white physicians have been 
rejected for staff membership at the hospital since 1958 
(202-03a).



21

With respect to patient segregation, he testified as fol­
lows: “Medical floors are integrated to an extent. We do 
not put Negro and white patients in the same room.” 
When parents are consulted and he determines there will 
be no conflict, Negro and white pediatric patients may be 
placed in the same room (63a). As “a regular thing” , 
however, “we do not put Negro and white patients in the 
same room” (63a).

Charles K. H utchens

Appellants placed in evidence the deposition of Mr. 
Hutchens, Chairman of the hospital Board since 1952 and 
before that a member of the Board (65a). He had read 
the minutes of the Board meetings which considered the 
applications of Dr. Cypress and Dr. Scott but had not 
attended these meetings (66a). He stated that in passing 
on applications for staff membership, the Board always 
abides by the recommendations made by the medical staff 
(67a). He had no knowledge of a Board policy of racial 
segregation, but when the hospital was located in an older 
building, it had a separate entrance for Negroes and pa­
tients were assigned space on the basis of race (68-70a).

D r . Stuart E ichenfield

Dr. Eichenfield, a board certified pediatrician practicing 
in Baldwin, New York (D. 3),15 16 was Chief of Pediatrics at 
the Fort Eustis Army Hospital from 1958 to 1960, a super­
visor of Dr. Cypress during that period (D. 5). His depo­
sition was admitted as that of a witness more than 100 
miles from the place of trial in anticipation of defenses 
suggested by the pleadings but never raised at trial by

15 Citations are to Dr. Eiehenfield’s deposition which is not printed
but is contained in the original record transmitted to the court.



22

the hospital. He testified that Dr. Cypress did his work 
“very well” (D. 6) and is possibly “ the most competent 
pediatrician” in the Newport News area (D. 27). Dr. 
Cypress’ character and judgment were “ excellent” . He 
never committed any breach of medical ethics (D. 14, 16). 
On the question of staff affiliations, Dr. Eichenfield is 
currently on the staff of five hospitals, one only “ techni­
cally” (D. 4, 5) and “ utilizes” two of these hospitals (D. 
19). Until last year he was also on the staff of another 
hospital but resigned because the hospitals he now uses 
are more convenient (D. 25). He would drop all his affili­
ations if he could conveniently practice at a better hospi­
tal, such as Mount Sinai in New York City (D. 25, 26). 
While it is his practice to restrict staff associations, this 
depends on the particular area of the country (D. 19). 
In contrast to the situation in Virginia, Dr. Eichenfield 
is obliged to make many house calls and, therefore, prefers 
to use nearby hospitals (D. 19). He stated that it is easier 
to maintain a number of staff memberships when the hos­
pitals have interns and residents (D. 28).

District Court Opinion

The district court found that the Negro doctors met all 
the objective standards required for membership and 
were both “highly qualified” but unentitled to relief be­
cause there was no “ affirmative evidence of discrimination” 
(284a, 291a). On the other hand, the court concluded that 
“ it may well be argued that there is a justifiable inference 
of discrimination from denial of the applications from 
Doctors Cypress and Scott” (291a), and that Negro doc­
tors “ should now be permitted to apply or reapply for 
staff membership” (292a). Upon reapplication, the appli­
cation might be “ accepted, deferred, or rejected.” A “ re­



jected applicant” however, could request a “hearing” or 
“ conference” at his own expense before the general staff 
of the hospital. This proceeding would not be public and 
statements made would not be governed by rules of evi­
dence. There “would be no place for attorneys”  or cross- 
examination, sworn testimony or burden of proof although 
a reporter could take notes at the expense of the doctor 
(293a, 294a). If the rejected applicant seeks the “ con­
ference” he may be required as a condition “ to execute a 
general release in favor of the hospital, its employees, 
general staff, and any individuals interrogated pursuant 
to any investigation, as to any statements made by anyone 
in connection with said application or any investigation 
made before or after said conference” (ibid.) (Emphasis 
supplied). He also may be required “to authorize exam­
ination of records in specific cases and if such authoriza­
tion is not given the general staff may draw inferences 
therefrom” (ibid.). In summary, the court concluded, “If 
the applicant seeks to attack the integrity of the general 
staff by claiming that its members are rejecting him be­
cause of race the applicant’s life and professional compe­
tence must become an ‘open book’ ” (294a). There would 
be no judicial review “ from the final action taken by the 
hospital authorities” (293a). The doctors’ “right”  to re- 
apply to the hospital under this procedure was limited to 
a sixty day period, the court stating it would enter a 
final decree in favor of the hospital if the doctors did not 
elect to apply.

With respect to segregation of Negro patients, the court 
held that plaintiffs did not have any standing to complain 
with respect “to the practice of not putting Negro and 
white patients in the same room”  (Emphasis in original). 
The court gave the following reasons for this holding: 
(1) “ This is a complex matter which involves the delicate



24

situation of the patient’s feelings as related to his gen­
eral health,” (2) The issue is already before the district 
court in a case filed by “ certain of the same counsel” 
against another hospital, (3) No witness testified that he 
ever sought admission to a room occupied by a person of 
another race although “Riverside concedes that its prac­
tice is not to assign Negro and white patients to the same 
room” (295a).

On March 28, 1966, appellants filed a request for entry 
of final decree stating that the doctors did not intend to 
subject themselves to the proceeding detailed in the dis­
trict court’s opinion and setting forth their belief that the 
“hearing”  or “ conference” , and especially the absence of 
judicial review, did not adequately protect their consti­
tutional rights and failed to secure them from a long­
standing injury. Specific objection was made to denial 
of assistance of counsel, right of cross-examination and 
confrontation, notice of charges, other procedural safe­
guards, while at the same time requiring the doctors to 
pay the expense of proceedings and execute a broad re­
lease. During the pendency of such proceedings, it was 
noted, there would be a continued denial of relief from 
admitted segregation of Negro patients. On the basis of 
these objections, appellants notified the court that in their 
view it would prejudice their rights not to appeal the 
court’s ruling that they were unentitled to relief (297a, 
298a). The final decree of the district court was filed 
April 21, 1966 (299a). Notice of appeal to this Court was 
filed April 29, 1966 (300a).

Although the facts in this case are not in dispute—only 
the inferences to be drawn from them—there are a number 
of statements in the district court opinion which are mis­
leading or unsupported by the record. While none is



25

critical to decision, it is believed that clarification will 
be helpful to the court.

First, the district court stated that Dr. Cypress prac­
tices alone and has no arrangement with any other pedia­
trician to “ cover” for him when he is unavailable (283a). 
This is a somewhat misleading characterization of Dr. 
Cypress’ practice. As the only Negro pediatrician, Dr. 
Cypress does not have a pediatrician “ cover” for him 
when he leaves the city, but he always has another doctor 
“cover” and be responsible for his patients (93-95a, 98a, 
231a). He had received no complaints about his avail­
ability and his office and hospital is always informed of 
his whereabouts (93-95a, 98a). The record, moreover, 
supports the conclusion that staff membership at River­
side Hospital—with its interns, consultants, equipment 
and modern pediatric clinic—would be of assistance to 
Dr. Cypress in caring for his patients (93-95a, 98a, 155a, 
156a, 218a, 78a, 109a, 160a, 161a, 174a).

Secondly, the court stated that Dr. Eichenfield, whose 
deposition was introduced, testified pediatricians are bet­
ter able to handle their practice by confining staff member­
ship to one hospital (283a). Dr. Eichenfield, however, is 
a staff member at five hospitals, and places most of his 
patients at two of these (D. 4, 5, 19). He testified that 
the number of staff affiliations a physician maintained 
depended on the character of his practice, for example, on 
the number of house calls he had to make. In Virginia, 
the number of house calls is few but in Long Island, 
where Dr. Eichenfield practices, the number is great 
(D. 19). Significantly, he stated that he would give up 
all his affiliations if he could practice at a superior hos­
pital (something he could not do for geographic, not pro­
fessional, reasons) (D. 25, 26). Dr. Butler corroboi’ated 
that physicians normally maintain numerous staff affilia­



26

tions (125-27a, 144a, 145a, 159a) and administrator St. 
Clair admitted that many Newport News physicians 
limited other staff affiliations after being placed on the 
Riverside staff (202a, 205a, 206a).

Thirdly, the district court found that 15 of the 18 white 
surgeons in the community are on the surgical staff at 
Riverside (284a n. 1). This finding reflects Dr. Scott’s 
statement that he understood the number to be 15 (112a). 
The actual number of white surgeons on the surgical 
staff, however, is 17 as clearly shown by the best avail­
able evidence, the listing of staff members supplied by the 
hospital in answer to appellants’ interrogatories (33a-35a).

Fourth. After describing the procedure by which an 
application for membership at Riverside is considered, the 
district court found that the procedure “is substantially 
similar to that followed by other hospitals throughout the 
nation” (286a). This finding is not supported by the 
record. Dr. Butler testified that procedures used at 
Riverside for handling staff applications are employed 
at other hospitals, but he was not referring to the pro­
cedure whereby three-fourths of the staff must approve 
of an applicant (131-33a, 149a, 150a). Indeed, the record 
demonstrates that at hospitals with which he was affiliated, 
and others at which Dr. Standard practiced, there is no 
election for medical staff membership (150a, 151a, 178a, 
179a). Dr. Butler stated that (150a):

It would be very difficult to have a meeting of 250 
practicing physicians of the Massachusetts General 
Hospital to pass on the credentials of every applicant 
for staff membership.



27

Questions Presented

1. Whether the rights of Negro physicians and patients 
under the Fifth and Fourteenth Amendments are violated 
when a hospital which has received substantial state and 
federal funds denies the applications for staff member­
ship of Negro physicians in the following circumstances:

(a) The hospital has freely placed white physicians on 
its staff;

(b) Three-fourths of an all-white medical staff must 
approve a Negro’s admission;

(c) Two Negro physicians with unquestioned qualifica­
tions are rejected by secret vote of the white staff;

(d) The hospital presents no evidence of any non- 
racial ground for exclusion.

2. Whether Negro physicians entitled to staff member­
ship and Negro patients who have been treated in the 
hospital and desire to be treated there in the future are 
entitled to injunctive relief against the hospital’s admitted 
policy of segregating Negro and white patients.



28

ARGUMENT

I

Negro Physicians Are Excluded From Staff Mem­
bership at Riverside Hospital in Violation of the Fifth 
and Fourteenth Amendments when (A ) Whites Are 
Readily Placed on the Staff, (B ) the Qualifications of 
the Negroes Are Unquestioned, (C) the Hospital Pre­
sents No Evidence of Any Non-Racial Ground for 
Exclusion and (D ) Three-Fourths of an All-White 
Staff Must Vote for a Negro’ s Admission.

A. Negro Doctors Are Excluded From Practice 
at Riverside Hospital.

The record clearly demonstrates that Riverside staff 
membership is easily obtained by white physicians and 
that Negro doctors are excluded although they meet not 
only the standards set forth by the hospital but those of 
the nation’s leading hospitals. In addition, the record 
shows that certified specialists in surgery or pediatries 
have never been denied membership unless they were 
Negro. Dr. Cypress is the only pediatrician in the com­
munity (all of whom are certified by the American Board 
of Pediatrics) who has been denied Riverside staff member­
ship. (When Dr. Cypress sought to discuss this extraordi­
nary result with the hospital, his letter requesting a con­
ference was not answered.) Dr. C. Waldo Scott’s treatment 
is even more striking. Seventeen of 18 white surgeons are 
on the Riverside staff. Nine of these are not even certified 
by the American Board of Surgeons, although certifica­
tion is a prerequisite for staff membership at many hos­
pitals and a significant index of ability (173a). Dr. Scott, 
the only Negro surgeon in the area, is Board certified,



29

but he has been denied staff membership. It taxes the 
imagination to contend that exclusion of these Negro 
physicians reflects other than the desire of the hospital 
staff to maintain its all-white character absent proof of 
some factor other than race which distinguishes the 
Negroes from their peers, Hawkins v. North Carolina 
Dental Society, 355 F.2d 718, 723 (4th Cir. 1966). I f they 
stood alone, these statistics would at the very least require 
from the hospital “ evidence . . .  to rebut the logical in­
ference of racial exclusion” , Hernandez v. Texas, 347 U.S. 
475, 480; see Chambers v. Hendersonville Board of Ed­
ucation, ------  F.2d ------  (4th Cir. 1966) and eases cited.

The Negro doctors, moreover, did not rest merely on 
the hospital’s concession that they meet standards of “ex­
perience, training and demonstrated competence” (221a). 
This record also establishes the inescapable conclusion 
that Negro physicians are arbitrarily excluded from the 
Riverside staff, for it affirmatively shows that the two 
Negro applicants denied membership are, in character 
and ability, exceptional physicians who would be entitled 
to membership on the medical staffs of any hospital. 
This is revealed not only by their educational and other 
“ objective” qualifications but by the testimony of two 
eminent witnesses who subjected both doctors to examina­
tion, observation, and appraisal far greater than that 
usually given persons being considered for staff member­
ship. The distinguished qualifications of these two physi­
cians were acknowledged by the district court and defense 
counsel. Their conclusion that the training and skill of 
the Negro physicians was excellent was not contradicted 
and the court entered findings in accordance with their 
testimony. If corroboration were required it need only 
be noted, inter alia, that the Health Director of the City 
of Newport News called Dr. Cypress the best pediatrician



30

he had encountered in 29 years of practice; a former 
supervisor characterized him as the best pediatrician in 
Newport News. Both Dr. Cypress and Dr. Scott have 
taught medicine, hold responsible hospital positions and 
are considered sufficiently qualified to practice at United 
States government hospitals.

Although Riverside affirmatively alleged in its answer 
that staff membership was denied for “ just and good 
cause,” no evidence of any such “ cause” was adduced. 
Absent from this record—despite the contrary allegation 
—is any evidence of a legitimate basis on which the ap­
plications of the Negro physicians could have been validly 
denied. I f such facts exist, the hospital had the power 
“to produce the facts” but it has failed to do so. See 
Chambers v. Hendersonville Board of Education, supra, 
where the court stated:

Innumerable cases have clearly established the princi­
ple that under circumstances such as this where a 
history of racial discrimination exists, the burden of 
proof has been thrown upon the party having the 
power to produce the facts.

On the other hand, the record abounds with instances 
which establish both physicians as men of high professional 
and moral stature. Indeed, in order to satisfy everyone 
that Riverside has no legitimate professional or moral 
ground for denying membership to Dr. Cypress and Dr. 
Scott, they have even shown that certain grounds, none 
of which the hospital has contended are the grounds, 
could not adequately explain rejection of Negro physicians.

Any suggestion, for example, that Dr. Cypress’ staff 
affiliations at two other hospitals could have justified 
denial of his application is totally unconvincing. Such 
an argument has no relevance to Dr. Scott about whose



31

practice no point was made and it does not offer an ex­
planation of the denial of membership to Dr. Cypress. 
Dr. Butler testified that it was common for American 
physicians to have numerous staff affiliations and the ad­
ministrator confirmed this by testifying that many physi­
cians decided to decrease their other staff associations 
only after having obtained membership at Riverside (the 
best hospital in the community) (202a, 218a). Likewise, 
Cypress testified he would consider decreasing other 
affiliations after admission to the staff if warranted by 
hospital responsibilities. Riverside cannot deny to a Negro 
doctor the privilege, freely accorded white physicians, to 
limit their other affiliations, as may be necessary, after 
admission to the staff. The hospital, it should be noted, 
has ample means to protect itself from any irresponsible 
physician who refuses to meet staff duties. The bylaws 
provide for limitation and extension of privileges after 
placement on the staff (Art. VI) and continued scrutiny 
of a staff physician’s fulfillment of his responsibilities 
(Art. VII) (262a, 265-70a, 155a, 219a). The artificiality 
of any suggestion that Dr. Cypress could legitimately be 
denied staff membership for this reason is also amply 
demonstrated by the failure of the hospital, even when 
requested to explain the denial of staff membership, to 
inform him (if such were the case) that he could become 
a member of the staff if he would drop other affiliations. 
Finally, the hospital failed to introduce evidence to show 
that Dr. Cypress’ use of other hospitals played any part 
in denial of membership by Riverside. In short, the 
Negro doctors have demonstrated on this record that 
they qualify for membership under any conceivable set 
of non-racial standards.



32

B. The Hospital May Nol Exclude Qualified Negroes 
by Means of a Procedure Which Burdens Negro, 
and Not White, Applicants.

Riverside hospital has maintained in the past and main­
tains at present policies of racial assignment of patients. 
The present policy of refusing to assign patients to rooms 
without regard to race was defended in the district court 
and continues despite the hospital’s having given assurance 
at the time it received an approximately 3 million dollar 
federal grant that it would not discriminate on the basis 
of race. Thus, the procedure by which the hospital 
denied membership to Negro physicians operates in 
a context where race has been and continues to be a con­
sideration. Negro physicians were denied staff member­
ship by their failure to obtain the secret ballot votes of 
more than three-fourths of the all-white medical staff of 
the hospital, a method which provides an easy opportunity 
for the exercise of racial prejudice, and seems more suit­
able to a fraternity than to a facility subject to the Con­
stitution, Simkins v. Moses Cone Memorial Hospital, 323 
F.2d 959 (4th Cir. 1963). This voting procedure, applied 
without consideration of evidence, itself violates due 
process of law.16 The Negro physicians here, however,

16 To put to a vote the doctors’ rights under the Fifth and Fourteenth 
Amendments to obtain staff membership without racial exclusion is to 
argue they may be denied their constitutional rights if more than one- 
quarter of the white physicians on the hospital staff desire to exclude 
Negroes or act in an other-wise “ patently arbitrary and discriminatory'” 
manner, Wieman v. Updegraff, 344 U.S. 183, 192; Johnson v. Branch,
------  F.2d ------  (4th Cir. 1966) and cases cited. The Supreme Court
rejected a similar argument in Lucas v. Colorado General Assembly, 377 
U.S. 713, 736, 737, a recent reapportionment case. See also Goss v. 
Board of Education, 373 U.S. 632, 655; Anderson v. Martin, 375 U.S. 
339; Hall v. St. Helena Parish, 197 F. Supp. 649, 658, 659 (E.D. La. 
1961) aff’d 368 U.S. 515; Potts v. Flax, 313 F.2d 284 (5th Cir. 1963), 
290; James v. Duckworth, 170 F. Supp. 343, 347 (E.D. Va. 1959). Due 
process also requires some opportunity to introduce evidence and explain 
adverse charges. The record clearly demonstrates that Dr. Cypress and 
Dr. Scott were denied membership without any such opportunity, per-



33

are entitled to admission to the staff not just a hearing, 
for they have demonstrated qualifications far superior to 
those required for membership. The voting rule supports 
this conclusion for applied by an all-white staff, it ob­
viously places a heavy burden on qualified Negro physi­
cians because of their race, provides undue opportunity 
for racial exclusion, and explains the otherwise inex­
plicable rejection of Dr. Cypress and Dr. Scott.

When applied by the all-white medical staff, this proce­
dure obviously discriminates against qualified Negro physi­
cians. Staff members voting by secret ballot need give no 
reasons for denial of membership and are, therefore, 
“ immune from outward responsibility in depriving others 
of their rights.” Mr. Justice Frankfurter, concurring, 
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 
123, 161, 162. On the other hand, the procedure places 
no burden on qualified white physicians. Cf. Franklin v.
Giles County School Board,------ - F .2d------  (4th Cir. 1966);
Chambers v. Hendersonville Board of Education, supra.

This court rejected less burdensome admission proce­
dures as unconstitutional in Hawkins v. North Carolina 
Dental Society, 355 F.2d 718, 723 (4th Cir. 1966) where 
only a recommendation from two of 1,214 white dentists 
was required for admission. In Meredith v. Fair, 298 F.2d 
696, 701-702 (5th Cir. 1962), a state university sought to

mitting denial of membership to completely qualified physicians on the 
basis of any charges, no matter how unfounded, arbitrary or irrelevant, 
and permitting such charges to remain unrevealed. This is just the kind 
of mischief which procedural due process requirements were framed to 
prevent. See Greene v. McElroy, 360 U.S. 474, 496, 497; Joint Anti-Fascist 
Refugee Comm. v. McGrath, 341 U.S. 123, 161, 162; Slochower V. Board 
of Education, 350 U.S. 551 (summary dismissal without any inquiry when 
the self-incrimination claimed denial of due process) ; Interstate Com­
merce Commission v. Louisville and N.R. Co., 227 U.S. 88, 91. Signifi­
cantly under Virginia’s Administrative Agencies Act, Va. Code §9-6.10, 
the Negroes would have been entitled to a hearing, if denied membership 
by a State “Agency” .



34

justify rejection of a Negro applicant on the ground that 
he had not furnished required certificates of good char­
acter from five alumni. As only whites were alumni, the 
court held that such a certificate requirement was a denial 
of the equal protection of the laws when applied against 
Negroes because it imposed “a heavy burden on qualified 
Negro students, because of their race.” Somewhat simi­
lar requirements were invalidated in Ludley v. Board of 
Supervisors Louisiana State University, 150 F. Supp. 900 
(E.D. La. 1957), affirmed 252 F.2d 372 (5th. Cir. 1958), 
cert. den. 358 U.S. 819, and Hunt v. Arnold, 172 F. Supp. 
847, 849 (N.D. Ga. 1959). See also United States v. Logue,
344 F.2d 290 (5th Cir. 1965), holding invalid a require­
ment that registered voters “vouch” for applicants in reg­
istration in a county where no Negroes had been regis­
tered. The court said that the voucher requirement “ in­
evitably imposes a greater burden on Negroes than whites 
under existing dominant social patterns,” and that, “ im­
posing as it does a heavier burden on Negro than white 
applicants, is inherently discriminatory as applied” (344 
F.2d at 292). The court did not inquire into the purpose 
of the voucher rule although the rule had been badly 
administered; rather it focused on the rule’s effect and 
found that it fell more heavily upon Negroes than upon 
whites. Indeed, the principle that a marked discrimina­
tory effect is the true measure of unconstitutional action 
has been long established. United States v. Wilbur Ward,
345 F.2d 857 (5th Cir. 1965); United States v. Mississippi, 
339 F.2d 679 (5th Cir. 1964); Louisiana v. United States, 
380 U.S. 145 (1965).

In summary, it is difficult, absent confession of a policy 
of racial exclusion, to conceive of additional evidence of 
discrimination which the Negroes could have adduced. 
While only required to prevail by a preponderance of evi­
dence, they have shown beyond a reasonable doubt that



35

they are highly qualified and respected physicians who 
meet standards applied in the leading hospitals in the 
nation and that whites—especially with their specialty 
qualifications—are always granted membership. In the 
face of such evidence, and this Court’s condemnation of a 
less burdensome procedure than employed here in Haw­
kins, supra, the hospital must come forward with some 
evidence of a valid ground for denial, especially when it 
alleged exclusion for “ just and good cause.” The hospital, 
however, has not come forward with any evidence. Its 
only witness was not present and did not participate in 
the staff meetings at which the votes were taken and con­
ceded that as far as he knew, both physicians were fully 
qualified.

To hold, in these circumstances, that appellants have 
not established exclusion of Negro physicians would be to 
permit Hill-Burton hospitals unfettered discretion in with­
holding staff membership, for, aside from the outright 
admission of discrimination, the proof submitted in this 
case is the only kind available to Negro physicians to 
establish their exclusion. If qualifications such as Dr. 
Scott’s and Dr. Cypress’ are inadequate, no Negro will 
ever obtain admission to the Riverside staff, although 
“Racial discrimination by hospitals visits severe conse­
quences upon Negro physicians and their patients” Sim- 
Jcins v. Moses N. Cone Memorial Hospital, 323 F.2d 959, 
970 (4th Cir. 1963). The hospital has failed to offer a 
valid explanation for rejection of the Negro physicians 
although, if such explanation existed, it was within the 
hospital’s power to produce it. See Pierre v. Louisiana, 
306 U.S. 354, 361 ;17 Chambers v. Hendersonville Board of 
Education, supra.

17 “Had there been evidence obtainable to contradict and disprove the 
testimony offered by petitioner, it cannot be assumed that the state would 
have refrained from introducing it.”



36

II

Appellants Are Entitled to Injunctive Relief Against 
the Hospital’s Practice of Assigning Rooms on the 
Basis of Race.

Uncontradicted testimony of Administrator Nelson L. 
St. Clair, Jr., establishes segregation of patients at River­
side Hospital. Negro patients at Riverside Hospital are 
not assigned to rooms with white patients. Pediatrics is 
an exception only when parents are consulted and Mr. 
St. Clair determines that no “ conflict” will result.

Appellants are entitled to an order enjoining racial as­
signment practices at the Hospital. That such assignment 
is unlawful is demonstrated by Simkins v. Moses II. Cone 
Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert, 
denied 376 U.S. 938, and Eaton v. Grubbs, 329 F.2d 710 
(4th Cir. 1964). See also Rackley v. Orangeburg Regional 
Hospital, 310 F.2d 141, 143 (4th Cir. 1962). In Simkins, 
both hospitals excluded Negroes before the Court of Ap­
peals decision, but the district judge on remand entered 
an order enjoining the hospitals “ from denying plaintiff- 
patients and the class they represent, admission to, or 
conditioning or abridging the admission to, or use of the 
facilities and services of the defendant hospitals on the 
basis of race.” Order entered in No. C-57-G--62 (M.D. N.C. 
April 16, 1964). In Eaton, supra, where Negro physicians 
and patients complained of segregation in room and ward 
facilities rather than exclusion, a similar order was en­
tered (No. 932, E.D. N.C.). Appellants do not contend 
that the hospital cannot assign rooms on the basis of any 
legitimate medical or administrative reason; only that the 
practice of always assigning Negroes to rooms with other 
Negroes or assuming that nonracial placement would cause 
conflict is unlawful.



37

In its opinion, the district court concluded that appellants 
lacked standing to complain of the hosptial’s admitted pol­
icy of not putting Negro and white patients in the same 
room. The district court was concerned that, “ This is a 
complex matter which involves the delicate situation of 
the patient’s feelings as related to his general health.” The 
district court also noted that the patient segregation issue 
was before it in another case. But minor appellants Jack- 
son and Clark certainly are entitled to obtain relief against 
segregation of patients. The children, who suffer from a 
chronic disease, sickle-cell anemia,18 have been treated at 
Riverside in the past on numerous occasions (27a), and a 
parent of the Jackson child desires to use its modern 
facilities to obtain treatment from Dr. Cypress should 
future hospitalization be necessary.

The district court stressed the fact that, “No witness 
has testified that he ever sought admission to a room 
occupied by a person of another race.” The court noted, 
however, that “ Riverside concedes that its practice is not 
to assign Negro and white patients to the same room,” 
and it was admitted that both Negro minors had been 
treated at Riverside (27a). Thus, the court concluded that 
Riverside’s admitted policy of patient segregation should 
not be enjoined because appellants did not explicitly testify 
that they requested relief. The court’s position on this 
issue is clearly shown in its extensive colloquy with coun­
sel (211-18a). The court asked counsel whether courts are 
designed “for social reform;” whether the hospital’s policy 
equals “discrimination per se;” whether plaintiff’s lawyer, 
or Dr. Cypress, or Dr. Scott, or Mrs. Wright was “com­
plaining” of the practice.

It is submitted that the hospital’s confessed policy of 
racial segregation and the likelihood of injury to appel­

18 The anemia is a result of excessive red cell destruction. Prognosis 
is poor. Merck Manual of Diagnosis and Therapy, 10th Ed., 1961.



38

lants makes such testimony a needless formality. First, 
it may be fairly inferred from the record as a whole and 
especially the subscribed complaint that appellants object 
to segregation of patients. Second, it is plain in light of 
hospital policy, that both minor appellants were subjected 
to racial segregation when treated at Riverside (27a, 190a), 
and have standing Rackley v. Orangeburg Regional Hos­
pital, 310 F.2d 141, 143 (4th Cir. 1962). Third, it is clear 
that the children are likely to be segregated should they 
return to Riverside. Fourth, Negroes may sue as a class 
to enjoin threatened class discrimination even though no 
Negro specifically alleges that he was a victim of such 
discrimination, Evans v. Newton, 382 U.S. 296 (1966), 
(The Evans record reveals that no Negro in that case 
alleged that he or any other Negro had been the victim 
of racial discrimination. See Record, pp. 37-42, 62-63), 
Evers v. Dwyer, 358 U.S. 202, 204; Morrison v. Davis, 252 
F.2d 102, 103 (5th Cir. 1958), Anderson v. City of Albany, 
321 F.2d 649 (5th Cir. 1963). Fifth, this Court has held 
in cases not materially different from the instant case 
that appellants are entitled to injunctive relief. Simkins 
v. Moses H. Cone Memorial Hospital, supra; Eaton, supra; 
Rackley, supra. Sixth, Negro doctors, entitled to staff 
admission, clearly need not subject their patients to seg­
regation, Griswold v. Connecticut, 381 U.S. 479, 481.

An instructive decision is Potts v. Flax, 313 F.2d 284, 
288-290 (5th Cir. 1963), where it was held that desegrega­
tion suits are “directed at the systemwide policy of racial 
segregation,” and that direct proof of intention to obtain 
particular relief is unnecessary, it being implicit in the 
circumstances of the litigation. There, two adults suing 
on behalf of their children brought suit to desegregate 
the Forth Worth, Texas public schools. One testified that 
he was bringing the suit for his own children and not for



39

other Negro children and the testimony of the other parent 
was silent on the question. The district court and the 
court of appeals both found class relief proper. “By the 
very nature of the controversy, the attack is on the un­
constitutional practice of racial discrimination. Once that 
is found to exist, the Court must order that it be discon­
tinued. Such a decree, of course, might name the suc­
cessful plaintiff as the party not to be discriminated 
against. But that decree may not—either expressly or 
impliedly—affirmatively authorize continued discrimina­
tion by reason of race against others.” In light of the 
admitted policy of segregation and the obvious desires of 
Negro physicians and patients to end all discrimination 
to which they may be subject at the hospital, injunctive 
relief against compulsory segregation of patients is clearly 
appropriate.

CONCLUSION

W herefore, fo r  the foregoin g  reasons, plaintiffs pray 
that the judgm ent below be reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
M ichael Meltsner

10 Columbus Circle 
New York, New York

P hilip  W alker 
648 25th Street 
Newport News, Virginia

Attorneys for Appellants

Conrad K. H arper 
Of Counsel



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