This case concerns a hospital's peer review procedure in the case of a physician who is denied reappointment to the medical staff. The hospital bylaws governing peer review hearings in such cases call for a hearing panel made up of physicians selected by an elected executive committee of the medical staff. We hold that in the absence of a bylaw provision to the contrary, the elected committee must appoint the hearing panel, and cannot delegate this task to the governing board of the hospital.
Appellant Osamah A. El-Attar, M.D., was a medical staff member at respondent Hollywood Presbyterian Medical Center (Hospital). In fall 2002, he applied for reappointment to the medical staff. His application was reviewed by the medical staff's medical executive committee (MEC), which recommended that his application be approved. The governing board of Hospital (Governing Board) denied the application, and appellant requested a peer review hearing to challenge the Governing Board's decision.
The Queen of Angels-Hollywood Presbyterian Medical Center Medical Staff Bylaws (Bylaws), adopted by the medical staff and approved by the Governing Board of Hospital, provided that in a case such as this, the peer-elected MEC appoints the members of the hearing panel to hear the case. Nevertheless, in this instance, the MEC acted to delegate that authority
Following the hearing, the appellant's medical staff membership and privileges were terminated. Appellant petitioned for a writ of administrative mandate, pursuant to Code of Civil Procedure section 1094.5. His petition was denied. On appeal, he makes several claims of error with respect to the selection of the hearing panel and the procedures it followed in hearing the case. We decide only one: whether the panel was properly constituted. We hold that it was not because selection of the hearing panel by the Governing Board violated the Bylaws, depriving appellant of the hearing to which he was entitled. We therefore reverse the trial court's ruling denying relief.
Pursuant to Business and Professions Code section 809,
The Bylaws authorize the MEC to investigate complaints against a physician (Bylaws, art. VII, § C), and, when appropriate, to recommend to the Governing Board that corrective action be taken against the physician (id., art. VII, § D). Article VII, section F of the Bylaws provides that in the event the MEC "fails to investigate or take disciplinary action, contrary to the weight of evidence, the Governing Board may direct the [MEC] to initiate... disciplinary action, but only after consultation with the [MEC]. If
A physician facing an adverse MEC recommendation or Governing Board decision is entitled to a "Judicial Review Hearing" (Bylaws, art. VIII, § A) before a judicial review committee (JRC) "appointed by the [MEC] and composed of at least five (5) members of the Active [medical] Staff who shall gain no direct financial benefit from the outcome; who have not acted as an accuser, investigator, fact finder or initial decision maker; and who otherwise have not actively participated in the matter leading up to the recommendation or action." (id., art. VIII, § C, subd. (8)). The JRC panel must include at least one member who has the same specialty as the physician challenging the action. In the event that it is not feasible to appoint a JRC completely composed of active medical staff members, the MEC may appoint members from other staff categories or practitioners who are not members of the medical staff. (Id., art. VIII, § C, subd. (8).) The hearing is overseen by a hearing officer selected by the MEC, who rules on "questions which pertain to matters of law, procedure, or the admissibility of evidence." (Id., art. VIII, § C, subd. (11)(c).)
If the JRC's decision is adverse to the physician, he or she is entitled to appellate review by the Governing Board before a final decision is rendered. (Bylaws, art. VIII, § A, subd. (1)(a)-(b).) The Governing Board must affirm the JRC's decision if it is supported by substantial evidence. If the Governing Board finds that the decision is not supported by substantial evidence, it "may modify or reverse the decision ... and may instead, or shall, where a fair procedure has not been afforded, remand the matter to the [JRC] for reconsideration...." (Id., art. VIII, § C, subd. (12)(f).)
Appellant is a physician licensed to practice medicine in the State of California and is board certified in internal medicine and cardiology. In 1975, he established a clinical practice in cardiology in Los Angeles, where he became a member of Hospital's medical staff. Appellant used Hospital extensively for the care of his patients, admitting over 800 patients in the two-year period from October 1, 2000, to October 1, 2002. During that time he became a frequent critic of Hospital's practices regarding patient care, and was one of the medical staff members who signed a petition in 2002 to remove Albert Greene as Hospital's chief executive officer.
In 2002, the Governing Board formed an ad hoc committee (AHC) to review and make recommendations relating to the quality of care by certain medical staff members. The AHC identified appellant as one of several practitioners on staff who appeared to be involved in a pattern of clinically
Hospital contracted with two independent medical review groups, National Medical Audit (Mercer) and Steven Hirsch and Associates (Hirsch) to review appellant's practice. Mercer reviewed 13 randomly selected patient file records and classified the problems into four categories: unacceptable care, overuse of services, substandard documentation and inadequate initial evaluation, and patient relationship issues. Hirsch reviewed 30 randomly selected records and concluded that appellant performed numerous high risk procedures, engaged in a pattern of disruptive conduct with screaming episodes and profane language, and refused to reasonably participate as a member of the patient treatment team. Hirsch also concluded that appellant's clinical management, professional conduct, and medical recordkeeping were below professional standards.
In fall 2002, appellant submitted a periodic application for reappointment, as his existing appointment was due to expire on January 31, 2003. In December 2002, the MEC recommended that appellant be reappointed. However, on January 28, 2003, the Governing Board recommended that the application be denied and directed Greene to summarily suspend appellant's privileges. On January 29, Greene attended a MEC meeting to present the AHC's findings and to request that MEC ratify the Governing Board's decision to suspend appellant. The MEC refused to do so.
On January 30, Greene notified appellant by letter that, at the direction of the Governing Board, he was summarily suspending appellant's clinical privileges. The MEC again refused to ratify the suspension and the suspension was automatically terminated, pursuant to article VII, section G, subdivision (4) of the Bylaws. The MEC notified appellant of its decision on January 31.
The following month, the Governing Board voted to deny appellant's application for reappointment. On March 7, 2003, appellant filed a timely request for a judicial review hearing to contest the Governing Board's decision.
The MEC met on March 12, 2003. The minutes of the meeting state that a "motion was made, seconded and carried that [appellant] should be granted a Judicial Review Hearing; and that the [MEC] leaves the actions relating to the Judicial Review Hearing procedures to the Governing Board." Subsequently, the Governing Board's AHC issued a notice of charges on March 25, 2003, listing six charges of misconduct and substandard practice. The notice stated that the Governing Board selected Jesse D. Miller as the hearing officer
On April 18, 2003, appellant filed a petition for writ of mandate and a temporary stay with the Los Angeles Superior Court, challenging the Governing Board's authority under the Bylaws to select the hearing officer and the JRC. In light of this, Miller announced on April 23 that he would postpone the start of the hearing "until the litigated matters have been clarified." On April 24, 2003, the trial court denied the writ on the grounds that a final administrative decision had not been rendered, and therefore, a writ was not proper under Code of Civil Procedure section 1094.5.
The judicial review hearing commenced on May 8, 2003, with appellant's voir dire of Miller and the panel members. One member was excused and two other members resigned prior to the commencement of the evidentiary hearings. Subsequently, in July 2003, Drs. James Getzen and John Triantafyllos were appointed by the Governing Board to serve on the JRC as replacements, bringing the number of panel members to five. Evidentiary hearings began in September 2003. In January 2005, after approximately 20 hearing sessions, one of the JRC members resigned for personal reasons, leaving the JRC with only four members: Drs. Mynatt, Lev, Getzen, and Triantafyllos. Appellant objected to proceeding with only four members in violation of the Bylaws, but was overruled. After approximately 30 sessions, evidentiary proceedings closed on July 18, 2005. The four remaining panel members attended all 30 evidentiary sessions.
Appellant appealed the JRC decision on procedural and substantive grounds. He argued there was "substantial non-compliance with the procedures required by the [B]ylaws and/or California and/or Federal law which caused demonstrable prejudice" and the decision was "not supported by substantial evidence based upon the hearing record." The Governing Board affirmed the JRC's decision and ordered that appellant's medical staff membership and privileges be terminated as of September 8, 2006.
Appellant filed an administrative mandate petition, seeking to have the JRC decision vacated on the grounds stated in his administrative appeal.
Thus, "[w]here, as here, the issue is whether a fair administrative hearing was conducted, the petitioner is entitled to an independent judicial determination of the issue. [Citation.] This independent review is not a `trial de novo.' [Citations.] Instead, the [trial] court renders its independent judgment on the basis of the administrative record, plus such additional evidence as may be admitted under [Code of Civil Procedure] section 1094.5, subdivision (e). [Citations.]" (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101 [63 Cal.Rptr.2d 743].)
When reviewing a trial court's ruling on an administrative writ petition, we are "`ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence.'" (Unnamed Physician v. Board of Trustees, supra, 93 Cal.App.4th at p. 618.) However, if the facts are undisputed, the fair hearing finding is a conclusion of law that requires a de novo review of the administrative record. (Id. at pp. 618-619; see also Ellison v. Sequoia Health Services (2010) 183 Cal.App.4th 1486, 1496 [108 Cal.Rptr.3d 728] ["When the issue presented is whether the hospital's determination was made according to a fair procedure, the court will treat the issue as one of law, subject to independent review based on the administrative record."].)
Hospital asserts that, notwithstanding these provisions, the Governing Board has inherent power to select the JRC and the hearing officer. It cites no Bylaw provision giving it this authority. Instead, it argues that the MEC and the Governing Board disagreed over whether to extend or terminate appellant's staff privileges, and therefore, the Governing Board was authorized by section 809.05, subdivision (c) to take action against appellant. That section of the Business and Professions Code provides that "[i]n the event the peer review body fails to take action in response to a direction from the governing body, the governing body shall have the authority to take action against a licentiate. Such action shall . . . fully comply with the procedures and rules applicable to peer review proceedings established by [s]ections 809.1 to 809.6, inclusive." (§ 809.05, subd. (c).) Article VII, section F of the Bylaws similarly authorizes the Governing Board to initiate disciplinary action when the MEC fails to take action in response to the Governing Board's directive. However, any such action must still be in compliance with articles VII and VIII of the Bylaws. (Bylaws, art. VII, § F.) Neither the statute nor the Bylaws support Hospital's position. That the Governing Board is authorized to initiate a corrective action against appellant says nothing about its authority to appoint the hearing officer and JRC once appellant requests a hearing to challenge that action. Rather, article VIII, section C, subdivision (11) of the Bylaws contemplates the situation that occurred here and requires the MEC to appoint the JRC even when the corrective action is initiated by the Governing Board.
Alternatively, Hospital argues that the MEC properly delegated its appointment authority to the Governing Board during its March 12, 2003 meeting. As a preliminary matter, appellant challenges the trial court's finding that the MEC delegated its authority to the Governing Board. We disagree with appellant, concluding that the MEC did purport to delegate this authority to the Governing Board.
Although the directive to establish and arrange the hearing does not specifically mention the appointment of the JRC and the hearing officer, nothing in the record suggests that the MEC objected to the Governing Board's selection. The record suggests that it did not. The AHC issued the notice of charges on March 25, which announced the selection of the hearing officer and the JRC panel. On April 9, 2003, the MEC approved its minutes from the March 12 meeting and restated that it "leaves the actions relating to the Judicial Review Hearing procedures to the Governing Board." Thus, the trial court's finding is supported by substantial evidence found in the administrative record.
The question remains whether the MEC was authorized to delegate its authority in this fashion. We conclude that it was not.
Article VIII, section C, subdivisions (8) and (11), specifically vest the authority to appoint the JRC and the hearing officer in the MEC. Nothing in the Bylaws allows the MEC to delegate this authority to another body, let alone the Governing Board. In fact, the Bylaws require that even when the Governing Board is authorized to initiate an action against a physician due to the MEC's unwillingness to do so, the power to appoint the JRC panel remains in the hands of the MEC. Comparing the Bylaws to the California Medical Association Model Bylaws also illustrates the intent behind provisions such as article VIII, section C, subdivisions (8) and (11). The California Medical Association's model bylaws grant the MEC the broad power to select and recommend panel members and a hearing officer to the governing board which selects the fact finders and hearing officer. The recommendation will be deemed to have been accepted by the governing board if the board does not reject it within five days. (See Merkel, Physicians Policing Physicians: The Development of Medical Staff Peer Review Law at California Hospitals (2004) 38 U.S.F. L.Rev. 301, 326-327.) Here, the medical staff had the opportunity to leave the final say over appointments to the Governing Board
Allowing the Governing Board to select the hearing officer and JRC panel is not an inconsequential violation of the Bylaws. Rather, it undermines the purpose of the peer review mechanism. The Supreme Court in Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1267 [91 Cal.Rptr.3d 516, 203 P.3d 1113] (Mileikowsky), articulated the fundamental principles behind peer review. While noting that the primary purpose of the process is to protect the health and welfare of the public, the court held that "[a]nother purpose, also if not equally important, is to protect competent practitioners from being barred from practice for arbitrary or discriminatory
The critical importance of the peer review process is highlighted by the grave impact an adverse decision has on a physician's career. The Mileikowsky court continued: "As one author stated: `It is almost impossible for a physician to practice medicine today unless she is a medical staff member at one or more hospitals. This is because a doctor cannot regularly admit or treat patients unless she is a member of the medical staff. Privileges are especially important for specialists, like surgeons, who perform the majority of their services in a hospital setting. For this reason, a hospital's decision to deny membership or clinical privileges, or to discipline a physician, can have an immediate and devastating effect on a practitioner's career.'" (Mileikowsky, supra, 45 Cal.4th at p. 1268, quoting Merkel, Physicians Policing Physicians: The Development of Medical Staff Peer Review Law at California Hospitals, supra, 38 U.S.F. L.Rev. 301, 302-303.) The court further noted that Business and Professions Code section 805, subdivision (b) requires hospitals to report certain disciplinary action to the state medical board, which maintains a historical record of such information. Thus, "[a] hospital's decision to deny staff privileges therefore may have the effect of ending the physician's career." (Mileikowsky, supra, 45 Cal.4th at p. 1268.)
We reverse the judgment and remand to the trial court with instructions to issue a writ directing Hospital to vacate its decision against appellant and grant him a new judicial review hearing. Appellant to have his costs on appeal.
Willhite, J., and Manella, J., concurred.