Los Angeles County Super. Ct. No. BS105623 APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Ann Murphy, Judge. Reversed and remanded.
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
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 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 denied the application, and appellant requested a peer review hearing to challenge the Governing Board's discussion.
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 to the Governing Board. That body appointed a hearing panel which ultimately ruled against appellant.
Following the hearing, the appellant's medical staff membership and privileges were terminated. Appellant petitioned for a writ of admin0istrative 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.*fn2
FACTUAL AND PROCEDURAL SUMMARY
Pursuant to Business and Professions Code section 809,*fn3 Hospital employs a peer review process to evaluate a physician's performance and conduct for various purposes, including applications for appointment and reappointment to the medical staff and disciplinary action against a physician. The Bylaws prescribe the structure of the peer review process. The Bylaws outline the respective roles of Hospital's Governing Board and the medical staff in that process. The Governing Board has final say on appointment applications (Bylaws, art. V, § A-1) and corrective actions against physicians. (art. VIII, § A-(1)(a)-(b).) The medical staff is represented by the MEC, which is comprised of medical staff officers, members, and department chairperson, all elected by the medical staff. (art. XII, § B.) Among other duties, the MEC makes recommendations to the Governing Board for medical staff appointment and reappointment, and takes "all reasonable steps to ensure professional ethical conduct and competent clinical performance on the part of all members of the Medical Staff. . . ." (Ibid.)
The Bylaws authorize the MEC to investigate complaints against a physician (art. VII, § C), and, when appropriate, to recommend to the Governing Board that corrective action be taken against the physician. (art. VII, § D.) Article VII, section F 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 the [MEC] fails to take action in response to the Governing Board's directive, the Governing Board may initiate corrective action, but this corrective action must comply with Articles VII and VIII of these Bylaws."
A physician facing an adverse MEC recommendation or Governing Board decision is entitled to a "Judicial Review Hearing" (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." (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. (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." (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. (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. . . ." (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 unnecessary, inappropriate, and opportunistic consultations involving patients who had been admitted to Hospital through the Emergency Department.
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 ...