BEDSWORTH, Acting P. J.
In this appeal we determine:
Dr. Israel Chambi had privileges as a neurosurgeon at Western Medical Center in Santa Ana.
Dr. Chambi filed this case in May 2009, seeking a petition for administrative mandate to invalidate the decision and reinstate his staff privileges at the hospital. Among other issues, the petition complained about the lack of a neurosurgeon on the peer review panel. The trial court heard the matter in the Spring of 2012 and denied the petition. Dr. Chambi filed a timely notice of appeal and presents basically but one claim of error: that the lack of a fellow neurosurgeon on the peer review panel deprived him of a fair hearing.
In California, hospital bylaws involving the termination of physicians' privileges must implement Business and Professions Code sections 809 to 809.8. (See § 809, subd. (a)(8); Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 617.) These statutes set out minimum standards of procedural protections for physicians. (Id. at pp. 622-623.) In the case before us, Western Medical's bylaws (specifically section 8.3.5) contain the same "where feasible" language contained in section 809.2, so we will treat the specialization clause of the hospital's bylaws as synonymous with the statute.
The record contains a letter from the hospital's lawyer to Dr. Chambi's lawyer rejecting his request for a fellow neurosurgeon on his peer review panel because the requirement of a fellow specialist was "permissive in nature and not mandatory." We reject that position. The "shall" language and syntax of section 809.2, subdivision (a) admits of no other reading but that the requirement — to be sure, qualified by the "where feasible" language — is mandatory. The text reads: "If a licentiate timely requests a hearing concerning a final proposed action for which a report is required to be filed under Section 805, the following shall apply: [¶] (a) The hearing shall be held, as determined by the peer review body, before a trier of fact, which shall be an arbitrator or arbitrators selected by a process mutually acceptable to the licentiate and the peer review body, or before a panel of unbiased individuals who shall gain no direct financial benefit from the outcome, who have not acted as an accuser, investigator, factfinder, or initial decisionmaker in the same matter, and which shall include, where feasible, an individual practicing the same specialty as the licentiate." (Italics added.) All those "shalls" make it clear a hospital has no option to treat the requirement of a fellow specialist where feasible as anything but mandatory. (See County of Orange v. Bezaire (2004) 117 Cal.App.4th 121, 129 [generally discussing difference in meaning between shall and may].)
Dr. Chambi argues in this appeal that the word "feasible" simply means "capable of being done," suggesting that economic feasibility should not enter into the analysis of feasibility.
In any event, Dr. Chambi's argument is unavailing. A change from "where financially and operationally feasible" to "where feasible" does not, absent more (and nothing more is provided in this case) clearly show a legislative intention to impose on hospitals a requirement to procure specialists for peer review panels regardless of price. (See J.A. Jones Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568, 1578-1579 [need for "clear statement of intent" to rely on legislative history].) Dr. Chambi's hoped-for reading runs contrary to what did make it into the statute, because to read "where feasible" to categorically exclude economic factors would be, in effect, to read the entire idea of feasibility out of the statute.
As Justice Poche once wrote in an easement case (involving the question as to whether residential construction on certain landlocked property was "feasible"), "Economic feasibility . . . is in the eye of the potential owner."
Case law, of course, interprets the word feasible to include economic factors. (See Lopez v. Nissan North America, Inc. (2011) 201 Cal.App.4th 572, 582-583 ["The word `practicable' . . . is synonymous with `feasible' and allows for reasonable limitations, including economic, practical, and technical limits"]; County of Los Angeles v. Fairmont Specialty Group (2009) 173 Cal.App.4th 538, 545, fn. 3 [upholding trial court's determination that it was not `feasible' to obtain extradition of defendant, even if it might be `possible,' and drawing distinction between meaning of `possible' and `practicable'"].) The cases represent a common sense reading of the word — one from which we see no reason to depart.
Both sides have briefed this case on the assumption it is the hospital who would have had to foot the bill to have provided a fellow neurosurgeon on Dr. Chambi's peer review panel. That assumption is correct. We must discuss the matter, though, because it is logically antecedent to tackling the problem of whether Western Medical did, indeed, show that procuring a neurosurgeon for Dr. Chambi's panel was not feasible.
As a textual matter, we note that syntactically section 809.2 is written in such a way as to place the burden of demonstrating infeasibility on the charging hospital. The key phrase is: "The hearing shall be held, as determined by the peer review body. . . ." (§ 809.2, subd. (a), italics added.) And the peer review body, in turn, is an arm of the hospital itself. Our Supreme Court described the governing structure of hospitals in Arnett v. Dal Cielo (1996) 14 Cal.4th 4. Hospitals must have self-governing medical staffs, those staffs adopt rules governing appropriate standards for patient care, and the staff acts through peer review committees. (Id. at p. 10.)
Tasked with organizing a peer review hearing, the hospital is further charged with insuring that the panel members are not biased. (See § 809.2, subd. (a) ["a panel of unbiased individuals who shall gain no direct financial benefit from the outcome, who have not acted as an accuser, investigator, factfinder, or initial decisionmaker in the same matter"].) The reason is, obviously, that the panel must function as the "trier of fact," in a process that is, at heart, adversarial.
Given such parameters, it is obvious the accused physician should not have to pay for the presence of a fellow specialist on a peer review panel. Not only would that possibility allow for a special taint of bias — the specialist would be peculiarly financially beholden to the accused physician — but it would turn the goal of fair procedure on its head: Accused persons do not normally have to pay for the judges and juries who sit as triers of fact in their cases. The hospital, on the other hand, functions in a dual role, much like the state in a criminal prosecution, of both initiating a disciplinary process and providing a fair forum in which that process may take place, and thus necessarily takes on the burden of providing the adjudicators of that process.
In tandem with the basic structure of peer review hearings, we note that there are times when, in the civil law at least, burdens of proof are placed on the party who is best positioned to produce the information with which to carry the burden. (See e.g., Harris v. Irish Truck Lines, Inc. (1974) 11 Cal.3d 373, 378 ["The defendant is the one who was in control of the vehicle prior to the accident and who had access to knowledge of its condition at that time."]; see also Grill v. Hunt (1992) 6 Cal.App.4th 73, 79.) And there can be no question that, between a hospital and an individual practitioner, it is the hospital which has the access to the information — including the hospital's own financial wherewithal to pay for it — showing whether procurement of a fellow specialist is, or is not, feasible.
Accordingly, we conclude the hospital is the party with the responsibility of showing the presence of a fellow specialist is not feasible; the accused doctor is not charged with the task of showing one is feasible.
While Western Medical has a number of neurosurgeons on its staff, the hospital says none was considered suitable for Dr. Chambi's panel, because all of them were thought to be either biased for him or against him. In fact, there apparently was one neurosurgeon on staff who did not begin practicing at Western Medical until Dr. Chambi had left, but he was not approached. Under the hospital's bylaws, peer review panelists are first drawn from the hospital's own staff. So, in the administrative proceedings at the hospital level, the question of feasibility quickly devolved into whether Western Medical would be required to pay for the services of an outside neurosurgeon. Since regular staff physicians were, in effect, donating their time to being on the panel,
Western Medical points us to four places in the appellate record which, it claims, demonstrate its assertion that finding a neurosurgeon for Dr. Chambi's panel was not economically feasible. Examination of each of these citations belies its argument.
(1) The first is a letter from the hospital's attorney dated December 5, 2003, to someone who appears to have been Dr. Chambi's attorney at the time. Besides asserting that the specialist requirement is only "permissive in nature and not mandatory," the letter argues that Western Medical's "neurosurgical roster is relatively small," and thus rejects out of hand the idea the medical staff "may expend its members funds to seek a reviewer from outside the Hospital." The letter argues: "First, neurosurgeons are extremely busy and finding an objective neurosurgeon to spend the requisite time would be extremely costly" and then delivers this ukase: "The Medical Staff is not prepared to expend its funds notwithstanding Mr. Kaplan's request." No facts or figures are given in support of the assertion.
(2) The second is the statement of Dr. Robert Steedman of the medical staff flatly declaring it was "very expensive" to go outside the hospital's own staff to find a neurosurgeon. And that was pretty much it. We reproduce the entirety of his remarks in the margin to demonstrate that he didn't say much other than "very expensive."
(3) The third item cited by Western Medical arose in the context of an objection Dr. Chambi made to going outside the staff for a fellow non-specialist on the panel, an anesthesiologist working at Chapman. The hearing officer worried out loud about the antitrust problem posed by having outside specialists on peer review panels.
(4) Western Medical cites us to the closing argument of its own attorney at Dr. Chambi's peer review hearing, addressing the point of the need for a neurosurgeon on the panel. Western Medical's attorney asserted it would have cost "many, many, many thousands of dollars, tens of thousands if not hundreds of thousands of dollars" to have had an outside neurosurgeon, but he otherwise gave no details or backup as to why the cost should have been so high, or why the hospital could not afford it.
Thus, in this appeal, Western Medical is reduced to saying, in effect: Take our word for it, it would have been too expensive to procure an outside neurosurgeon. The proposition is obviously untenable. Face value acceptance of hospital recitations of the economic infeasability of having a fellow specialist on a peer review panel would provide nothing less than a license to ignore section 809.2's "where feasible" language altogether. We note the record references proffered by Western Medical fail to document any actual attempt to find an outside neurosurgeon at all, much less the cost of finding it prohibitively expensive. Indeed, Dr. Steedman's remarks show the medical staff was loath to spend anything to have a fellow neurosurgeon on Dr. Chambi's panel.
In the context of California's Environmental Quality Act, it is well established that an official's "word for it" there are no feasible alternatives in a given situation is not good enough. Assertions of infeasibility must be backed up by "meaningful, reliable data." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 398.) While we recognize that assembling a peer review panel in accord with section 809.2 is not the same thing as preparing an environmental impact report, it is safe to say that some minimal documentation is needed. The goal of fair process is certainly not furthered by a hospital's ipse dixit that it is "too expensive" to comply with the statute. (Cf. Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 598-599 ["`The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence the additional costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.'"]; accord, Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336 [court's finding that reduced-size alternative was infeasible not supported by substantial evidence without data about the size of competitors]; Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1401 ["Here, the lender's letter and the economic analysis constitute substantial evidence supporting the board's finding that the reduced-herd-size alternative is not economically feasible; elimination of all profit and loss of construction financing adequately proves that the reduced-herd-size alternative is not viable."].)
Because of the total absence of data supporting the hospital's assertion that finding a fellow specialist to serve on Dr. Chambi's panel was not feasible, it would be premature at this point to speculate on what would support such a finding. We have not been cited to any case law on the subject or found any on our own. However, we may note that the specter raised by the hospital's attorney at the closing of the hearing that it was too expensive given it might cost tens of thousands of dollars, or even exceed six figures, rings very hollow given that hospitals regularly write off such sums in regard to a single patient. (E.g., Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 550 [total billed was $189,978.63, but $130,286.90 written off]; Olsen v. Reid (2008) 164 Cal.App.4th 200, 203 [$57,394.24 written off].) Suffice to say that it is hard to imagine any claim of economic infeasibility being upheld without some data showing the (a) length of time a hearing might be expected to take; (b) the actual cost of paying a fellow specialist to be on the panel; and (c) some discussion of the relation of that cost to the hospital's overall financial condition. Beyond that minimum, we may leave the question of what it takes to show financial infeasibility to future cases.
A requirement of prejudicial error is part of our state Constitution. (Cal. Const., art. 6, § 13 ["No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."].) And, in accord with our Constitution, it is well established that it is the appellant who bears the burden of producing a record which shows prejudicial error on the part of the trial court. (E.g., People v. Whalen (2013) 56 Cal.4th 1, 85 ["Because defendant has not supplied a record adequate to review this claim, it fails."]; McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1211 ["In particular, appellant has not included in the record a reporter's transcript of the hearing. It is appellant's burden to show error by an adequate record."].)
Here, however, Dr. Chambi has made no effort at all to show that having a fellow neurosurgeon on his panel might even possibly have resulted in a different outcome. He does not provide us with a reporter's transcript of the administrative hearing against him. Rather, he argues the failure to have a fellow neurosurgeon on the panel, given the hospital's failure to demonstrate the infeasibility of having one, is automatically reversible as prejudice per se, since ipso facto it meant he didn't get a fair hearing.
Not so. Dr. Chambi's error per se argument misses the most obvious aspect of section 809.2's requirement a fellow specialist be on the panel — it is conditional. The Legislature contemplated there would be times that a fellow specialist would not be present — hence the feasibility clause — yet nevertheless the panel would be able to render a fair decision. From that possibility it follows that the absence of a fellow specialist is not a material violation of the statute that it renders any decision by the peer review panel unfair per se. (See El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 991-992 [emphasizing that to trigger reversal of hospital's decision, violation of bylaws must be "material"].)
In this regard we must distinguish here between matters of bias and matters of expertise. The statute is unconditional when it comes to bias. Panel members cannot have any financial interest in the outcome of the hearing. Full stop. (Cf. Yaqub v. Salinas Valley Memorial Healthcare System (2004) 122 Cal.App.4th 474 [retired justice doubling as hearing officer gained financially from presiding over peer review hearings and once served on hospital foundation's board with the purpose of fundraising for the hospital].)
Dr. Chambi's argument is also contrary to our Supreme Court's recent decision in El-Attar, supra, 56 Cal.4th 976, which applies here a fortiori. In El-Attar, a potential for an unfair panel did not, by itself, warrant judicial intervention. How much less does the absence of the insight of a specialist, by itself, warrant judicial intervention in this case.
We explain: In El-Attar, a medical executive committee met to consider the possible denial of reappointment of a physician to a hospital staff and suspension of his privileges at the hospital. The medical executive committee met, but refused to take any adverse action against the physician. Instead, the medical executive committee delegated the task of any adverse action to the hospital's governing board. (Id. at p. 984.) The governing board then proceeded, through an existing ad hoc committee, to appoint a judicial review panel, the judicial review panel held a hearing, and found the initial decision to deny the physician reappointment was warranted. (Id. at p. 985.) After an internal appeal to the hospital's appeal board, the physician was ordered terminated from the medical staff of the hospital. He then brought a petition for writ of mandate. The matter reached the Court of Appeal, which held the hospital bylaws precluded the medical executive committee's initial delegation of its authority to the governing board, because preserving the "`separateness'" of the various components of the peer review process served the purpose of insulating a physician from the possibility the governing body might be out to remove a doctor arbitrarily from the hospital's staff. (Id. at p. 986.) But the Supreme Court did not see it that way.
The high court accepted, for sake of argument, that the medical executive committee's delegation of power to the governing body was indeed contrary to the hospital's bylaws. (See El-Attar, supra, 56 Cal.4th at p. 990.) Even so, the physician still had to show prejudice. (Ibid. ["Not every violation of a hospital's internal procedures provides grounds for judicial intervention. In applying the common law doctrine of fair procedure, we have long recognized that departures from an organization's procedural rules will be disregarded unless they have produced some injustice."].) The court focused on whether the violation was "material." (Id. at p. 991.) It concluded the deviation from the bylaws on the delegation point was not material, noting the statute allowed for such a delegation. (Id. at pp. 991-992.) And finally it concluded that it was not enough, as the appellate court had thought, that the delegation of power by the medical executive committee might pose some potential for bias. (Id. at p. 997.) The Supreme Court then handed the matter back to the appellate court to adjudicate the doctor's claim that certain members in the review hearing were "in fact biased" against him. (Ibid.)
The lesson we take from El-Attar is that the mere potential that a review hearing might be biased against a doctor because controlled by a governing board, as distinct from a medical executive committee, is not enough to warrant judicial intervention. And, as noted, here we have even less than that — a deprivation of whatever special insight a fellow neurosurgeon might have brought to the table.
It might very well be the case that a specialist would have made a difference in Dr. Chambi's hearing. In a world of increasing professional specialization, it is intuitive that a specialist might bring to an adjudicatory matter insights not readily perceived by a nonspecialist.
Or he might not. There are medical matters where one hardly even needs a course in high school biology to know the care was substandard. (E.g., Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1386 [sponge left in leg after surgery; res ipsa loquitur instruction should have been given].) Whether this case belongs to the former category of a specialist being keenly attuned to highly nuanced exonerating details that might otherwise be missed by nonspecialist practitioners, or the latter category of gross error in technique obvious to anyone, is a question Dr. Chambi, by truncating the record and not attempting to argue actual prejudice, has removed from our consideration.
The judgment is affirmed. In the interests of justice each side will bear its own costs on appeal.
ARONSON, J. and IKOLA, J., concurs.
However, the panel's decision is undated. We take Dr. Chambi's brief's word for it that it was rendered in February 2007.
Because the hospital does not make the argument the absence of a fellow neurosurgeon was compelled out of the fear a fellow neurosurgeon, even one from outside the hospital staff, would be too eager to vote against Dr. Chambi simply to get rid of competition, we have no occasion to explore the anticompetitive theory of specialist exclusion.
"As far as the neurosurgeons on this medical staff, like anywhere else, any workplace, people — Dr. Chambi has used some of the neurosurgeons as his assistant on many cases. They are in Dr. Chambi's camp. Others have been very critical of Dr. Chambi, have written letters stating that they had issues with Dr. Chambi's care. They would have been viewed as being prejudiced against Dr. Chambi.
"It would have been incredibly difficult in a very charged place with a hearing of this type to get a neurosurgeon from our medical staff. Therefore, we would have had to have spent many, many, many thousands of dollars, tens of thousands if not hundreds of thousands of dollars to have a neurosurgeon here during all of the times that the hearing panel deliberated. So it was not feasible. And it is not required. There is not a single statute."
