County of San Diego v. Gibson

This is a proceeding in mandamus to compel the respondent, as chairman of the board of supervisors, to execute a contract for the purpose of securing certain medical and teaching services in the county hospital. There is no dispute as to the facts and the issuance of a writ is opposed solely on the ground that this contract cannot, for several reasons, be legally made.

Briefly stated, the following facts appear in the petition. The petitioner maintains and operates a county general hospital, as required by section 2500 of the Welfare and Institutions Code. The board of supervisors, herein referred to as the board, has determined that it is necessary to operate this hospital as a teaching hospital in order to adequately staff the institution, to maintain a proper standard of medical care, and to adequately care for persons lawfully admissible to the hospital. There are no medical schools in the area from which a staff of instructors might be drawn. Medical specialists engaged in private practice have heretofore, on a voluntary basis, been used to provide training and teaching facilities to internes, nurses, technicians, and other employees of the hospital ; to provide research and library facilities which would otherwise be unavailable to the county, all of which are necessary to the operation of the hospital as a teaching hospital in order to attract qualified internes, residents, nurses and other personnel; to render medical care and services to patients in the hospital; and to supervise the medical care and services given to the patients by the hospital employees. Such medical care and supervision is highly skilled professional work, and is rendered by specialists of long experience in private practice. The members of this volunteer medical staff comprise approximately three-fourths of the members of the San Diego County Medical Society, an organization composed of all the doctors practicing in the San Diego area.

In order to secure for this hospital the services of a large and experienced staff of instructors and medical practitioners at a cost which will involve no curtailment of medical services, to secure for this hospital the latest developments of medical research, and to secure the other benefits derived from a teaching hospital, the board has authorized the negotiation of a contract with said Foundation and, by resolution duly adopted, has approved the contract in question and directed the respondent as chairman of the said board to sign and execute it on behalf of the county of San Diego. The respondent, as chairman of said board, having refused to sign said contract, the board directed the institution of this action to compel him to sign the same.

A copy of the proposed contract is attached to the petition. In brief, it provides that it shall continue in force for one year. The Foundation agrees to provide an adequate number

It is first contended that the petitioner is prohibited by section 202 of the Welfare and Institutions Code from entering into this contract for the care and treatment of the indigent sick or dependent poor. That section prohibits the board from contracting for the care of such persons except under certain circumstances. One of these exceptions applies to eases “(2) which require treatment or the use of facilities not immediately available in the county hospital.” It further provides that in such a case ‘‘the board may secure for the indigent sick, and other persons admissible to the county hospital, at an agreed rate, hospital service or any portion thereof from any public or private hospital, ... or other suitable facility. ...”

The contract here in question rather clearly appears to be one between the board and ‘‘a suitable facility” for the purpose of securing hospital service or a portion thereof, and involving treatment or the use of facilities which would not otherwise be immediately available in this county hospital.

It is next contended that this contract violates Article XVII of the county charter. It is argued that it is therein provided that all classified positions must be filled under the civil service regulations, and that the services here in question are classified positions since they are not included in the list of unclassified positions.

The Civil Service provisions of this charter list certain positions as Unclassified Service, and provide that all positions not specifically included therein shall constitute classified service to which the civil service provisions shall apply. It is further provided, however, that in the event of the creation of a new position or in case of a vacancy in any position “requiring peculiar and exceptional qualifications of a scientific, professional or expert character,” and upon satisfactory evidence that competitive examinations to qualify applicants for said position are impractical, the requirement for competitive examinations may be waived.

The contention thus made is sufficiently answered in the case of County of Los Angeles v. Ford, 121 Cal.App.2d 407 [ 263 P.2d 638 ], and the cases therein cited. That there are situations in which services may be obtained outside of civil service was recognized in Stockburger v. Riley, 21 Cal.App.2d 165 [ 68 P.2d 741 ], and State Comp. Ins. Fund v. Riley, 9 Cal.2d 126 [ 69 P.2d 985 , 111 A.L.R 1503 ]; and was confirmed in San Francisco v. Boyd, 17 Cal.2d 606 [ 110 P.2d 1036 ] and Kennedy v. Ross, 28 Cal.2d 569 [ 170 P.2d 904 ]. This is a situation of that character which was sufficiently provided for in this charter provision to the effect that the civil service provisions should not apply to any position requiring exceptional qualifications of a scientific and professional character, where satisfactory evidence discloses that competitive examinations to qualify applicants are impracticable. The members of the Foundation, whose services are in question, are skilled professional men engaged in the practice of a highly technical profession and they are not to become

Finally, it is contended that this contract provides for the corporate practice of medicine by the Foundation, citing section 2008 of the Business and Professions Code and People v. Pacific Health Corp., 12 Cal.2d 156 [ 82 P.2d 429 , 119 A.L.R. 1284 ]. There is nothing in section 2008 which prohibits this contract, and the facts in the instant case meet all of the requirements laid down in the Pacific Health Corporation case. Under established principles it cannot be held that this contract provides for the corporate practice of medicine by the Foundation. (County of Los Angeles v. Ford, 121 Cal.App.2d 407 [ 263 P.2d 638 ] ; Complete Service Bureau v. San Diego County Med. Soc., 43 Cal.2d 201 [ 272 P.2d 497 ].)

Let the peremptory writ issue as prayed for.

Griffin, J., and Mussell, J., concurred.