(San Mateo County Super. Ct. No. CIV469933). Hon. Steven L. Dylina.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
Defendant and respondent Sequoia Health Services (Sequoia) terminated the medical staff membership and hospital privileges of plaintiff and appellant Bruce E. Ellison, M.D., a licensed physician specializing in orthopedic medicine. Dr. Ellison appeals from a judgment denying his petition for writ of mandate to compel the reinstatement of his privileges. (Code Civ. Proc., § 1094.5.) We affirm.
FACTS AND PROCEDURAL HISTORY
Dr. Ellison graduated from Stanford Medical school, where he also completed an internship in general surgery. He secured a research fellowship at the University of Massachusetts (UMass) and began a residency in orthopedic surgery. He resigned from this program, having been required to repeat a year, and finished his residency in orthopedics at the Phoenix Residency Program in Arizona. After a three- month fellowship in sports medicine/reconstructive surgery in Phoenix, he submitted an application for staff privileges to Sequoia, a community hospital in San Mateo.
Sequoia approved Dr. Ellison's application in June 2004 and he became a member of the provisional staff with privileges to perform orthopedic surgery, subject to an initial period of proctoring. He was proctored on seven procedures between June and September 2004 and received favorable reports on all of them. In October 2004, the Surgical Control Committee at Sequoia notified Dr. Ellison that proctoring was no longer required for lower extremity procedures, but would continue on upper extremity procedures until further notification. It later came to light that Dr. Ellison performed several upper extremity procedures without a proctor.
In October 2005, Dr. Ellison was reappointed for a two-year period. In February 2006, the Medical Executive Committee (MEC) appointed an ad hoc committee composed of three staff physicians to review eight of Dr. Ellison's cases: (1) a surgery to repair the patient's anterior cruciate ligament (ACL), which had taken a relatively long time (five and a half hours) to complete; (2) the cancellation of an ACL repair after the patient had been anesthetized, due to the inexperience of the particular "scrub tech"; (3) a decision to forego leg splints as a palliative measure on a patient awaiting surgery to repair tibial fractures, who was transferred to another hospital due to insurance reasons; (4) a surgery to repair a left elbow fracture, which took approximately four hours due to Dr. Ellison's ultimately unsuccessful attempt to preserve the radial head; (5) the surgical treatment of a six-year old with a broken arm, whose father was highly critical of Dr. Ellison's follow-up care and demeanor in the face of the boy's near- hysteria when the cast was removed; (6) a surgery to release the patient's trigger finger, which required a second surgery by another physician; (7) a longer-than average surgery time for a lateral menisectomy; and (8) a complicated (and unproctored) hand surgery in which Dr. Ellison had to call a plastic surgeon for a consultation in the middle of the operation.
The ad hoc committee initially recommended that Dr. Ellison remain under proctorship for upper extremity cases and that Sequoia's Orthopedics Department continue to review all of his surgeries. Later, the ad hoc committee recommended that Dr. Ellison's staff privileges be revoked. The MEC decided that a revocation of privileges was too severe, but concluded that Dr. Ellison required additional training and should be accompanied by both a proctor and a board certified assistant surgeon during all surgical procedures. The MEC also found that Dr. Ellison had appeared non-responsive and evasive during the investigation.
Dr. Ellison filed a request for a hearing before the hospital's Judicial Review Committee (JRC) as he was entitled to do under Sequoia's written bylaws. The MEC filed a notice of charges alleging that, based on the eight cases described above, "Dr. Ellison appears to lack the requisite clinical judgment, technical capability and patient management skills to practice safely and competently as an orthopedic surgeon." The notice also alleged, "There are questions and concerns regarding the adequacy of Dr. Ellison's background and training as an orthopedic surgeon."
In describing the "questions and concerns" in the second charge, the notice referred to Dr. Ellison's lack of candor with respect to his background and training. The notice alleged: "Initially, based on the information provided in his application for Medical Staff membership and in a letter from the University of Massachusetts Medical School in 2003, it appeared that Dr. Ellison left the program voluntarily and for innocuous reasons. However on April 13, 2006, he admitted to the MEC that they `did not like him' there and suggested that he leave." Additionally, "In the past, Dr. Ellison has been evasive about his Board certification status. In his application for Medical Staff membership dated September 23, 2003, he wrote: `Board Eligible (Results Pending) Orthopedic Surgery.' However, on February 5, 2004, when Dr. Margolis [of Sequoia] asked him about it, he denied that he had taken the exam. When asked again in the same conversation, he said that he had taken the exam, but when asked if he had passed, he said that he was `confused.' Finally, he admitted that he had failed." The notice did not specifically allege that this lack of candor rendered Dr. Ellison unfit to practice at Sequoia or required additional remedial measures.
An extensive hearing was held before the JRC, which was composed of four physicians from Sequoia's medical staff and presided over by an attorney who was appointed to serve as the hearing officer. Although the MEC had previously concluded that Dr. Ellison should retain his privileges subject to the dual proctor/assistant surgeon requirement, it took the position before the JRC that all staff privileges should be revoked. Dr. Ellison took the position that the dual proctoring/assistant surgeon requirement was too restrictive.
The MEC presented the testimony of physicians who worked with Dr. Ellison at Sequoia and who had been involved in the cases at issue and/or the investigation of those cases. Broadly speaking, these doctors were critical of Dr. Ellison's performance and believed additional training and/or supervision was necessary. Dr. Sampson, an outside orthopedic surgeon who had been retained by the hospital to evaluate the eight cases under review, concluded that Dr. Ellison had shown a lack of experience but did not fall below the standard of care. Dr. Schurman, an orthopedic surgeon whom Dr. Ellison called as an expert, opined that while proctoring should continue in upper extremity cases, the requirement of a Board certified assistant surgeon during all procedures was excessive. Dr. Ellison testified on his own behalf regarding his handling of the cases.
Evidence was also elicited on the subject of Dr. Ellison's honesty. Although he had been asked by UMass to repeat the second year of his residency program, he did not specifically disclose this on his application for privileges at Sequoia (though he did accurately state the dates he was in the UMass program). When MEC members had questioned him about his reason for leaving UMass, he variously said that he wanted to be closer to his girlfriend, that the UMass people had not liked him, that it had been suggested he leave, and that he "snuck" out. When the MEC asked him about the number of times he had failed the first portion of his Board examination, Dr. Ellison claimed not to remember and then said he had failed it twice, even though he appeared to have failed the examination three times.*fn1 Dr. Ellison had claimed not to remember the date of his graduation from medical school and gave varying answers about his training, among other things, saying that he did a sports medicine fellowship that he never completed. At the time of his initial appointment to Sequoia, Dr. Ellison had represented that he was "board eligible," even though he had twice failed the first portion of his Board examination.
The JRC issued a written report in which it concluded that the eight cases it considered "demonstrate [ ] that Dr. Ellison was inexperienced and that the MEC's concerns about the quality of his training were not unjustified.... However, based on the totality of the evidence the JRC considered,... the eight cases did not demonstrate a pattern proving that, in fact, Dr. Ellison so lacks clinical judgment, technical capability, and patient management skills, as to make the MEC's dual corrective action regime reasonable." It affirmed the MEC's decision to require the presence of a board certified assistant surgeon during Dr. Ellison's surgical procedures, but reversed the requirement that a separate proctor also be present. It recommended that the MEC formulate a protocol specifying the duration of the assistant surgeon requirement.
The JRC's report also concluded: "1. Dr. Ellison was intentionally unclear and evasive about the circumstances and reasons for his departure from the orthopedic residency program at [UMass]. [¶] 2. Dr. Ellison was not candid or honest about the number of times he had taken and failed the Board Certification examination. [¶] 3. Dr. Ellison's performance at [UMass] and, subsequently, at the Phoenix Orthopedic Residency Program, were both below average. [¶] 4. Dr. Ellison had low percentile scores on the three Board Certification exams he failed and the one he subsequently passed. [¶].... [¶] Much more troubling to the JRC than Dr. Ellison's post-medical training and education were Dr. Ellison's lack of candor, evasiveness, and misrepresentations (whether intentional or not).... Rather than providing complete and truthful responses, Dr. Ellison frequently either temporized, was evasive, professed confusion or faulty memory, was incomplete, parsed words, or was untruthful. On occasion, his testimony during the JRC hearing was marked and marred by the same deficits. [¶] "There is no practical way to initiate a corrective action regime which can police or effectively assure honesty or ethical behavior. While Dr. Ellison professes to have learned much from this experience, there is no assurance that he will in the future be more candid and complete with respect to the problematic personal or clinical issues. [¶] "The MEC is entitled to expect honesty and ethical behavior from its Medical Staff members. While what has occurred in the past is now in the past, the JRC recommends to the MEC that it avail itself of all appropriate remedies available to it if in the future it documents or establishes conduct by Dr. Ellison which is not in keeping with the ethical requirements of medical staff membership."
Both Dr. Ellison and the MEC appealed the JRC's decision to Sequoia's Board. As permitted by the bylaws, the MEC submitted a letter from El Camino Hospital showing that it had denied Dr. Ellison's application for reappointment to its staff, based on (1) his failure to give El Camino access to peer review information from the proceedings at Sequoia; (2) a question about the accuracy of information in his initial application and reapplication for privileges concerning the severance of his relationship with UMass; and (3) concerns raised by staff during his proctoring at El Camino. The MEC argued the letter was relevant to show Dr. Ellison had not been truthful when, ...