APPEAL from a judgment of the Superior Court of Los Angeles County. David P. Yaffe, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS108838).
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
Los Angeles Metropolitan Medical Center appeals from the judgment entered after the trial court granted Dr. Georgia Bode‟s petition for administrative mandate to set aside the medical center‟s decision to first suspend, and then not renew, her temporary privilege to practice there. We affirm.
FACTS AND PROCEDURAL HISTORY
On January 2, 2003, Dr. Georgia Bode began work as an anesthesiologist at Los Angeles Metropolitan Medical Center (the hospital or L.A. Metro) with temporary, but renewable, 90-day practice privileges pending action on her application for membership on the hospital‟s medical staff. The hospital had recently replaced its entire anesthesiology staff after incidents involving the mishandling of controlled narcotic substances caused an accreditation agency to award the hospital only a conditional accreditation. Bode, who had an unblemished record since she began practicing in 1987, gave up her staff membership at Centinela Hospital in order to come to L.A. Metro.
In response to the mishandled drug problem, the hospital instituted Sure-Med, a computer-operated drug dispensary system. In order to return unused drugs, a physician must enter information into the Sure-Med system specifying whether drugs were used, wasted (unreturned after disposal by an authorized method), or returned after not being used. Drug returns had to be witnessed and signed off by an authorized hospital staff member. The hospital‟s pharmacy staff would confirm the return, and would also review patient records to be sure physicians properly documented the use or wastage of unreturned drugs.
Within Bode‟s first three weeks at the hospital, she had problems properly documenting her use of various medications. Six incidents were reported between January 6 and January 18, 2003. Some were based on Bode‟s failure to sign her name to patient records; others involved the failure to document the dosage administered or the disposition of the drugs. On January 22, 2003, Dr. Dapo Popoola, the hospital‟s surgical chief, sent Bode a letter setting forth the six incidents. The letter ended by warning that any further occurrences "may result in disciplinary action including suspension of privileges." (Boldface omitted.) The hospital‟s records show that Bode received training and counseling about these issues and seemed to have resolved them satisfactorily.
On March 18, 2003, Bode withdrew several doses of medication to administer to a patient undergoing spinal surgery. The Sure-Med records showed that Bode obtained three ampules of Fentanyl, two vials of Versed, and one ampule of Demerol. The patient‟s chart showed that all of the Fentanyl and one of the Versed doses, but not the Demerol, were administered. The Sure-Med records also showed that Bode entered the return of the Demerol and the remaining Versed vial. This was witnessed by a Nurse Vargas, who entered her own user ID and password into the Sure-Med system to confirm Bode‟s actions. However, when pharmacy staff checked the machines the next day, they could not find the Demerol ampule. Vargas gave three versions of what she witnessed:
(1) Vargas told her supervisor that she told Bode that Bode was returning Fentanyl, not Demerol, and that the machine needed to be corrected; (2) Vargas told the pharmacy chief that she did not see or recall, or had been too busy to see or had no idea, what Bode had returned; and (3) Vargas told the head of the anesthesiology department that she told Bode that Bode was returning Fentanyl, not Demerol.
On March 23, 2003, the hospital‟s surgery department held an emergency peer review meeting, where the hospital‟s chief of staff summarily suspended Bode‟s temporary privileges. On March 25, 2003, Bode appeared before a meeting of the surgery department to explain the missing Demerol ampule. Bode submitted a prepared statement. Distilled, Bode said Vargas, an experienced recovery room nurse, witnessed and signed for the return of the Demerol; the Sure-Med system is complicated; the recovery room nurses should be able to recognize Demerol when they see it; and she had never before had any problems with dispensing or returning controlled substances. The peer review committee was unable to "come to a concrete solution regarding the discrepancy." On March 26, 2003, the surgery department recommended that Bode‟s privileges remain suspended until their 90-day limit expired four days later. On March 31, 2003, L.A. Metro gave Bode official notice that her temporary privileges would not be renewed "because of issues surrounding the return of controlled substances."
Under state law and the hospital‟s bylaws, Bode was entitled to, and demanded, a hearing to rebut the charges. As part of that June 2003 demand, Bode told L.A. Metro that she had no further interest in practicing there, effectively withdrawing her application. The hospital refused to provide a hearing and Bode filed a mandate petition (Code Civ. Proc., § 1085) to compel L.A. Metro to provide the hearing. (Bode v. Pacific Health Corp. (Super. Ct. L.A. County, 2003, No. BS085342) (Bode I).) That petition was granted and the hospital scheduled a hearing on its decision to suspend and not renew Bode‟s privileges.*fn1
In connection with the hearing, L.A. Metro sent Bode a letter in July 2004 stating that its decision to suspend and not renew her privileges was based on issues that were "raised regarding the return of controlled substances from January 2, 2003 through March 21, 2003." In August 2004, the hospital sent Bode a notice of charges stating that its decision was based on the six January 2003 drug documentation incidents and the missing Demerol incident. According to the hospital‟s notice, "[T]he totality of these incidents, occurring in such a short period of time, raised questions about your professional qualifications and/or your ability to exercise the temporary privileges you had been granted."
Pursuant to the hospital‟s bylaws, the medical staff‟s case against Bode was brought by the hospital‟s Medical Executive Committee. The finder of fact was a Judicial Review Committee comprised of medical staff members, assisted by a hearing officer. Bode testified that other hospitals using the Sure-Med system had experienced problems with missing drugs. Bode was sure Vargas saw her return the Demerol and could not explain what happened to it. She did not return any Fentanyl because she used all three ampules during the spinal surgery. Bode also claimed that the head of the hospital‟s pharmacy department asked her to change the patient‟s record to reflect that Demerol had been used. Bode declined to do so.*fn2 Vargas‟s statements were also in evidence, but Vargas did not testify.
In general, under state law and L.A. Metro‟s bylaws, the burden of proof for an initial applicant at this type of personnel hearing lay with the physician being disciplined. In all other cases, the burden of proof lay with the hospital.*fn3 The Judicial Review Committee was unsure whether to place the burden of proof on Bode and, acting on the hearing officer‟s recommendation, decided the case in the alternative, first by placing the burden on Bode, then by evaluating the evidence as if the hospital bore the burden of proof. Regardless of who bore the burden of proof, the Judicial Review Committee found that the six recording and documentation incidents in January 2003 were established only in part, and that, as to those, the hospital properly warned Bode that further incidents might result in discipline. However, regardless of who bore the burden of proof, the Judicial Review Committee "is not making any finding that Dr. Bode‟s care was deficient or inappropriate." Also without regard to the burden of proof, the ...