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Mileikowsky v. West Hills Hospital and Medical Center

April 6, 2009


Ct.App. 2/8 B186238 Los Angeles County Super. Ct. No. BS091943. Dzintra I. Janavs.

The opinion of the court was delivered by: Werdegar, J.

California's statutory peer review process, Business and Professions Code section 809 et seq., provides a physician with the right to a hearing for the purpose of reviewing a hospital peer review committee's recommendation to deny the physician's application for reappointment to staff privileges. A hearing officer may be appointed to preside at the hearing, but the officer is prohibited by statute from acting as a prosecutor or advocate or from voting on the merits. (Bus. & Prof. Code, § 809.2, subd. (b).)*fn1 The merits are determined by the trier of fact, often a panel drawn from other of the physician's peers. (Id., subd. (a).) We conclude the hearing officer lacks authority to prevent a reviewing panel from reviewing the case by dismissing it on his or her own initiative before the hearing has been convened, and also lacks authority to terminate the hearing after it has been convened without first securing the approval of the reviewing panel. We therefore will affirm the judgment of the Court of Appeal.


Dr. Gil N. Mileikowsky is a physician and surgeon board certified in obstetrics and gynecology. He had staff privileges to practice gynecology at West Hills Hospital and Medical Center (West Hills), an acute care facility. In May 2001, Dr. Mileikowsky applied for obstetrical privileges at West Hills and for renewal of his gynecological privileges. His applications were reviewed by a peer review committee, which recommended denial. The recommendation was submitted to West Hills's medical executive committee, which also recommended denial. Dr. Mileikowsky was given formal notice of the recommendation and the reasons for it: (1) he had failed to notify the medical staff that his privileges at another facility, Century City Hospital, had been terminated; (2) he had represented that he had voluntarily resigned from a third facility, the EncinoTarzana Regional Medical Center, when in fact he had been summarily suspended;*fn2 and (3) he had attended a patient at West Hills and attempted to perform a caesarean section on her when he lacked obstetrical privileges and the patient had requested he stay away.

On May 23, 2002, Dr. Mileikowsky filed a timely request for a hearing, challenging the peer review committee's recommendation. Under West Hills's bylaws, hearings are held before a judicial review committee composed of members of the active staff (the reviewing panel). West Hills's medical executive committee appointed a hearing officer to preside over the hearing. The bylaws specify that hearings are to be held, if possible, no later than 45 days from the date a request for a hearing is received. In Dr. Mileikowsky's case, however, month after month went by without a hearing, largely because Dr. Mileikowsky refused to produce documents requested by West Hills, challenged the hearing officer's authority, and refused to comply with the officer's directions or orders. West Hills in the meantime amended its notice of the recommendation to include an allegation that Dr. Mileikowsky had failed to cooperate in West Hills's investigation of the actions taken against him by a fourth facility, Cedars-Sinai Medical Center. The amended notice referred to a report Cedars-Sinai had made to the Medical Board of California (Medical Board) and to the National Practitioner Data Bank, indicating Dr. Mileikowsky's privileges at that facility had been suspended for actions falling into the adverse action classification of "Incompetence/Malpractice/Negligence."

On February 5, 2003, after detailing the many complaints the parties had made about one another, including West Hills's complaint that Dr. Mileikowsky persistently refused to provide information relating to the action taken against him by Cedars-Sinai Medical Center, the hearing officer ordered Dr. Mileikowsky to produce the Cedars-Sinai documents, warning he would impose terminating sanctions should Dr. Mileikowsky fail to comply. Dr. Mileikowsky replied he would be occupied until March 14 with "other matters" and would respond to the officer's order after that date. On March 18, 2003, the hearing officer wrote to the parties he had received no further communication from Dr. Mileikowsky, ordered Dr. Mileikowsky to make arrangements to allow inspection and copying of the Cedars-Sinai documents by March 24, and again warned he would order terminating sanctions if Dr. Mileikowsky failed to comply.

Dr. Mileikowsky did not comply with the hearing officer's order. On March 27, 2003, the hearing officer issued an order dismissing Dr. Mileikowsky's request for a hearing, finding Dr. Mileikowsky's refusal to make the documents available prevented West Hills from prosecuting its case. In dismissing the proceedings, the officer invoked a provision in West Hills's bylaws providing that a physician who fails to request a hearing shall be deemed to have accepted the action involved, the action will become effective immediately, and the physician will be deemed to have waived all other rights inuring to him or her under the bylaws. The order thus declared that the dismissal constituted Dr. Mileikowsky's voluntary acceptance of the peer review committee's recommendation and that the recommendation therefore "shall become effective immediately." As a result of the order, no hearing was convened, and the matter was never submitted to the reviewing panel for decision.*fn3

Dr. Mileikowsky appealed the order to West Hills's governing board. The board adopted the hearing officer's order, ruling Dr. Mileikowsky had been afforded a fair hearing in substantial compliance with the bylaws and that the officer's decision to dismiss the proceedings was reasonable, warranted, and supported by the weight of the evidence. Dr. Mileikowsky sought relief in the superior court by petition for a writ of administrative mandate. The superior court denied the petition. The Court of Appeal reversed, remanding the matter to the trial court with directions to enter a judgment directing West Hills and its medical staff (1) to set aside the governing board's decision, (2) to convene a hearing under the provisions of subdivision (c) of section 809.1, and (3) to conduct the hearing and any further proceedings in accordance with the provisions of section 809.2 et seq.



Decisions concerning medical staff membership and privileges are made through a process of hospital peer review. Every licensed hospital is required to have an organized medical staff responsible for the adequacy and quality of the medical care rendered to patients in the hospital. (Cal. Code Regs., tit. 22, § 70703, subd. (a); Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10.) The medical staff must adopt written bylaws "which provide formal procedures for the evaluation of staff applications and credentials, appointments, reappointments, assignment of clinical privileges, appeals mechanisms and such other subjects or conditions which the medical staff and governing body deem appropriate." (Cal. Code Regs., tit. 22, § 70703, subd. (b); seeBus. & Prof. Code, § 2282.5; Cal. Code Regs, tit. 22, §§ 70701, 70703.) The medical staff acts chiefly through peer review committees, which, among other things, investigate complaints about physicians and recommend whether staff privileges should be granted or renewed. (Arnett,at p. 10.) In 1989, California codified the peer review process at Business and Professions Code section 809 et seq., making it part of a comprehensive statutory scheme for the licensure of California physicians and requiring acute care facilities such as West Hills to include the process in their medical staff bylaws. (§ 809, subd. (a)(8).)

The primary purpose of the peer review process is to protect the health and welfare of the people of California by excluding through the peer review mechanism "those healing arts practitioners who provide substandard care or who engage in professional misconduct." (§ 809, subd. (a)(6).) This purpose also serves the interest of California's acute care facilities by providing a means of removing incompetent physicians from a hospital's staff to reduce exposure to possible malpractice liability. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199; Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 12.)

Another purpose, also if not equally important, is to protect competent practitioners from being barred from practice for arbitrary or discriminatory reasons. Thus, section 809 recites: "Peer review, fairly conducted, is essential to preserving the highest standards of medical practice" (id., subd. (a)(3)), but "[p]eer review that is not conducted fairly results in harm both to patients and healing arts practitioners by limiting access to care" (id., subd. (a)(4)). Peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to the physician's livelihood. (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823.) 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." (Merkely, Physicians Policing Physicians: The Development of Medical Staff Peer Review Law at California Hospitals (2003) 38 U.S.F. L.Rev. 301, 302-303.)

The effect of denying staff privileges extends beyond reducing or eliminating a physician's access to the denying facility. Section 805, subdivision (b) requires that hospitals report certain disciplinary actions, including denials of staff privileges, to the Medical Board. The Medical Board, which licenses physicians, must maintain a historical record that includes any reports of disciplinary information. (§ 800, subd. (a)(4); see Arnett v. Dal Cielo, supra,14 Cal.4th at p. 11.) A hospital considering whether to grant or renew a physician's staff privileges must contact the Medical Board to learn if some other facility has reported a disciplinary action involving the physician. (§ 805.5, subd. (a).) And, as occurred here, a hospital usually is required to report disciplinary actions to the National Practitioner Data Bank, established for the purpose of tracking the activities of incompetent physicians. (42 U.S.C. § 11133(a).)*fn4 A hospital's decision to deny staff privileges therefore may have the effect of ending the physician's career.

The peer review process, while generally delegating responsibility to the private sector to monitor the professional conduct of physicians, establishes minimum protections for physicians subject to adverse action in the peer review system. (Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th at p. 201; Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1484.) Where, as here, a peer review committee recommends a "final proposed action" that will require a hospital to file a report with the Medical Board, the affected physician is entitled to notice and may request a hearing for the purpose of determining if the recommendation is reasonable and warranted. (§§ 809.1, subds. (a), (b), 809.3, subd. (b)(1), (2) & (3).) "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 [i.e., the physician] and the peer review body, or before a panel of unbiased individuals . . . which shall include, where feasible, an individual practicing the same specialty as the licentiate." (§ 809.2, subd. (a).) At the hearing, both parties have the right to call, examine, and cross-examine witnesses and to present and rebut evidence. (§ 809.3, subd. (a)(3), (4).) Upon the completion of the hearing, the parties are entitled to the written decision of the trier of fact, "including findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached." (§ 809.4, subd. (a)(1).) Under West Hills's bylaws, the reviewing panel is composed of no fewer than five members of the medical staff. A physician therefore has the right to have a second body of peers independently determine whether a peer review committee's recommendation to deny the physician's application for privileges is reasonable and warranted after considering not only the evidence that led to the peer review committee's findings, but also any additional evidence produced at the hearing.


Both the Business and Professions Code and West Hills's bylaws provide for the appointment of a hearing officer, but both also carefully limit the authority of the officer. If a physician requests a hearing, the code provides that the medical executive committee may, but need not, select a hearing officer to preside over the hearing to be held before the reviewing panel. (§ 809.2, subd. (b).) West Hills's bylaws confer authority on the officer to maintain decorum at the hearing and ensure that all parties have a reasonable opportunity to be heard and to present oral and documentary evidence. Both the statutory scheme and West Hills's bylaws caution that the hearing officer is not to act as a prosecuting officer or advocate, and both recite that the hearing officer "shall not be entitled to vote." (§ 809.2, subd. (b).) The reviewing panel resolves any conflicts in the evidence, determines its sufficiency, and determines the reasonableness of the recommended disciplinary action.

A hearing officer without the authority to determine sufficiency of the evidence may not entertain a motion to dismiss the proceedings for lack of evidence. (See Frost v. State Personnel Board (1961) 190 Cal.App.2d 1, 3-7.) Here, while the hearing officer did not dismiss the proceedings for lack of evidence, by dismissing the proceedings before the hearing was convened the officer prevented the reviewing panel from considering the evidence and eliminated the reviewing panel's role in the decisionmaking process. Whether the hearing officer had the power to take such action presents a question of law which we review de novo. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th at p. 555; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618-619; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1442-1444.)

No provision in either the Business and Professions Code or West Hills's bylaws expressly confers authority on a hearing officer to issue terminating sanctions. West Hills, however, contends such authority is implicit in section 809.2, subdivision (d). That subdivision grants each party the right to inspect and copy relevant documentary information in the other party's possession. It then provides: "The failure by either party to provide access to this information at least 30 days before the hearing shall constitute good cause for a continuance. The right to inspect and copy by either party does not extend to confidential information referring solely to individually identifiable licentiates, other than the licentiate under review. The arbitrator or presiding officer shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires." (§ 809.2, subd. (d).)

In West Hills's view, a hearing officer's power to impose safeguards to protect the peer review process embraces the authority to issue terminating sanctions for a party's failure to comply with requests for information. But that the Legislature intended for section 809.2, subdivision (d) to confer on the hearing officer the power to impose sanctions beyond granting or denying continuances is dubious. After generally stating the right of each party to have access to information in the other party's possession, subdivision (d) addresses two situations. The first is that a party might fail to provide access to information. After identifying that possibility, subdivision (d) states that the failure to provide timely access "shall constitute good cause for a continuance." The second is that a document might contain confidential information relating to someone who is not a party to the proceedings. After identifying that possibility, subdivision (d) confers authority on the hearing officer to "rule upon any request for access to information, [and to] impose any safeguards the protection of the peer review process and justice requires." Read in context, the provision for imposing safeguards clearly seems directed to the situation in which the material a physician requests to inspect or copy includes confidential information related to physicians who are not parties to the proceedings; in that case, the statute authorizes the hearing officer to redact or otherwise limit the information to protect the confidentiality of the nonparty physicians while still protecting "the peer review process and justice" by providing the physician access to otherwise discoverable material.

While the statutory language seems clear, a broad interpretation of the officer's statutory powers might nonetheless be justified if granting the hearing officer authority to issue terminating sanctions were consistent with the goals of the statutory review process and its allocation of responsibilities for reviewing a peer review committee's recommendation. But it is not. The purpose for providing a physician with a review of the peer review committee's recommendation is to secure for the physician an independent review of that recommendation by a qualified person or entity, here the reviewing panel. That purpose is defeated if the matter is dismissed before the reviewing panel becomes involved. Further, irrespective of a hearing officer's authority at the hearing or over the evidence adduced there, the officer, who "shall not be entitled to vote" (ยง 809.2, subd. (b)), has no part in the decisionmaking process and no authority to prevent ...

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