Mr. Curt Smith, Executive Vice-President Massachusetts Eye and Ear Infirmary 243 Charles Street Boston, Mass. 02114 .sp Dear Mr. Smith, .PP .fi .na Enclosed is a copy of a letter to me from Drs. Jakobiec and Nadol instructing me of my privilege, with respect to the modification of my staff privileges at the Infirmary, to submit "a written request to the President for a hearing before a hearing committee..." I assume the presidency referred to is the presidency of the Massachusetts Eye and Ear Infirmary, an office which to the best of my knowledge will be vacant well beyond the thirty day deadline stipulated in the letter. I therefore submit to you as acting Chief Executive Officer of the Infirmary this written request for a hearing before a hearing committee designated by the Board of Managers in accordance with Section 10.5 (c) of the Bylaws of the Infirmary. Please advise me promptly if it is necessary to address this request to any other official at the Infirmary. .PP The concluding sentence of page two of Drs. Jakobiec and Nadol's letter states with respect to the requested hearing: "The decision of the Board of Managers would be final and without further recourse." I respectfully state that I believe the Infirmary to be subject to the jurisdiction of both state and federal courts. Although I very much hope and expect that our controversy will be resolved amicably, I do not, in requesting the aforementioned hearing, waive my rights to judicial review. Alternatively, if the Infirmary required me to waive my rights to judicial review as precondition to granting the the hearing in question, I would withdraw my request to be heard. .PP According to the letter, I am required to state whether I will be represented by an attorney at the hearing. I will represent myself. I will not be represented by counsel. I will be assisted at the hearing by my son who is an assistant professor of medicine at Tufts University School of Medicine. .PP I am also required to give my reasons for requesting a hearing. My reason for requesting a hearing is that the recommendations of the Board of Surgeons and the Medical Board, if adopted by the Board of Managers, .br a) would seriously impair my present practice of ophthalmology at the Infirmary, as I have conducted it without criticism or censure for the past twenty-three years, and .br b) place pressure on me to perform marginally necessary or avoidable operations in order to protect my rights to perform such procedures in the future. .PP I am further informed that "The hearing would not necessarily be conducted according to formal rules of law." To prepare my case, I need to know according to what rules the hearing .ul will be conducted. I need to know whether I am to appear as petitioner or as respondent. I need to know which of the claims, if any, listed below and elaborated in the accompanying memorandum, the Board of Managers will permit me to try to prove. I need to know the length of time, if any, to be allotted for opening and closing statements, for the presentation of evidence, and for oral argument, and under what circumstances, if any, the hearing would be continued. I need to know whether the examination of witnesses will be permitted, and if so, which, if any, of its employees or agents the Infirmary will make available for such oral examination and whether testimony is to be taken under oath. .PP I am further informed that I "have the burden of proving that the ... (contested) privilege recommendations lack any substantial factual basis or are otherwise arbitrary, unreasonable or capricious." I wish to discharge this burden by offering proof: .nf .sp a) that the list of delineated privileges is impermissibly ambiguous. b) that the grounds on which the Infirmary proposes to restrict my delineated privileges are improper. c) that the procedures for restricting delineated privileges are insufficiently protected against bias and favor. d) that the Infirmary has sufficient information to evaluate my qualifications and competence to exercise various of the delineated privileges which have been denied me. e) that the Infirmary, as a matter or policy, regularly grants delineated privileges to physicians who have never performed the operations which they are found qualified to do. f) that the restriction of delineated privileges is made in furtherance and in consequence of impermissible policies of discrimination against myself as a member of a class of similarly situated staff physicians. g) that the restriction of delineated privileges is made in furtherance of policies of discrimination against myself as an individual who has voiced unpopular criticism of Infirmary practices and in violation of a contract in which the Infirmary agreed to honor my staff privileges. h) that the restriction of delineated privileges addresses insignificant or non-existent issues and is used by the Infirmary as a screen to conceal grave professional and legal problems which the Infirmary is unwilling and unable to solve. .PP .fi .na I enclose a memorandum which elaborates upon these claims. .PP Inasmuch as the Infirmary has imposed on me the burden of proof, and inasmuch as the foregoing assertions can be proved only by evidence which is exclusively in the Infirmary's possession, I respectfully request that the Infirmary permit me to inspect and to photocopy on its machines at my expense the following documents: .PP 1. All files containing evaluations of my character and competence. .PP 2. All minutes of the Board of Surgeons and of the Medical Board which refer to the delineation of privileges for myself and for all other members of the ophthalmology staff. .PP 3. All raw data which was relied upon by the Board of Surgeons or the Medical Board as sufficient or insufficient information on the basis of which delineated privileges have been granted or denied both to myself and to all other members of the ophthalmology staff. .PP 4. All statistical analyses or other compilations which were relied upon by the Board of Surgeons or the Medical Board as sufficient or insufficient information on the basis of which delineated privileges have been granted or denied both to myself and to all other members of the ophthalmology staff. .PP 5. All plans of privilege delineation and quality assurance which the Infirmary has prepared to satisfy the requirements of regulatory authorities. .PP 6. All operative notes and all Medicare explanations of benefits for all surgical operations cited by residents as evidence of their competence in ophthalmology. .PP Because of the complexity of the issues, I would welcome a pre-hearing conference with your attorney, to exchange stipulations and admissions, to reach agreement, if we are able, on the extent and nature of discovery procedures, if any, and to agree upon the format and rules of the hearing.