Superior Court Los Angeles County,
Ct. No. BS105623, Ct.App. 2/4 B209056, Mary Ann Murphy, Judge
Lurie, Zepeda, Schmalz & Hogan, Kurt L. Schmalz and Neeru Jindal for Plaintiff and Appellant.
Law Offices of Astrid G. Meghrigian and Astrid G. Meghrigian for A. S. Moosa, M.D., as Amici Curiae on behalf of Plaintiff and Appellant.
Law Offices of Astrid G. Meghrigian and Astrid G. Meghrigian for Theodore M. Mazer, M.D., and other current or former California Chiefs of Staff as Amici Curiae on behalf of Plaintiff and Appellant.
Fancisco J. Silva, Astrid G. Meghrigian and Long X. Do for California Medical Association and American Medical Association as Amici Curiae on behalf of Plaintiff and Appellant.
Horvitz & Levy, David S. Ettinger, H. Thomas Watson; Christensen & Auer, Jay D. Christensen and Anna M. Suda for Defendant and Respondent.
Arent Fox, Lowell C. Brown and Sarah G. Benator for St. Joseph Health System as Amicus Curiae on behalf of Defendant and Respondent.
DiCaro, Coppo & Popcke, Carlo Coppo, Michael R. Popcke and Shelley A. Carder for BETA Healthcare Group as Amicus Curiae on behalf of Defendant and Respondent.
Nossaman and Ann H. O’Connell for California Hospital Association as Amicus Curiae on behalf of Defendant and Respondent.
Davis Wright Tremaine and Terri D. Keville for Good Samaritan Hospital, L.P., Los Robles Regional Medical Center, San Jose Healthcare System, LP, Riverside Healthcare System, LP, and West Hills Hospital as Amici Curiae on behalf of Defendant and Respondent.
Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld and Joanna S. McCallum for Dignity Health and Adventist Health System/West as Amicus Curiae on behalf of Defendant and Respondent.
Hospitals in this state have a dual structure, consisting of an administrative governing body, which oversees the operations of the hospital, and a medical staff, which provides medical services and is generally responsible for ensuring that its members provide adequate medical care to patients at the hospital. In order to practice at a hospital, a physician must be granted staff privileges. Because a hospital’s decision to deny a physician staff privileges may have a significant effect on a physician’s ability to practice medicine, a physician is entitled to certain procedural protections before such adverse action may be taken. (Mileikowsky v. West Hills Hospital and Medical Center (2009) 45 Cal.4th 1259, 1267–1268 (Mileikowsky).)
This case arises from the decision of Hollywood Presbyterian Medical Center (Hospital) to deny Dr. Osamah El-Attar’s application for reappointment to Hospital’s medical staff. Dr. El-Attar requested a review hearing to challenge the decision. Pursuant to Hospital’s bylaws, Hospital’s medical staff, acting through its Medical Executive Committee (MEC), had the responsibility to select the hearing officer and panel members of the committee that would hear Dr. El-Attar’s claim. The MEC, however, declined to exercise this authority and instead left it to the Hospital’s Governing Board to do so. We granted review to determine whether this delegation of authority deprived Dr. El-Attar of the fair hearing to which he was entitled. We conclude that even if such a delegation violated Hospital’s bylaws, the violation was not material and, by itself, did not deprive Dr. El-Attar of a fair hearing. Accordingly, we reverse the Court of Appeal’s decision concluding that Dr. El-Attar was entitled to relief on this ground alone.
In July 2002, the federal Centers for Medicare and Medicaid Services advised Hospital that unless it took corrective action to rectify certain deficiencies relating to its oversight of its quality assurance program, it would be removed from the Medicare and Medi-Cal programs. In response, the Governing Board formed an Ad Hoc Committee of the Board (AHC), which engaged two outside auditors. The AHC instructed the auditors to undertake a focused review of Dr. El-Attar’s practice at the hospital. Dr. El-Attar had been identified as one of several doctors who might have engaged in a pattern of unnecessary and inappropriate consultations with patients admitted through Hospital’s emergency department. He had also been one of the more outspoken critics of Hospital’s management and, in particular, its chief executive officer, Albert Greene. Both auditors reviewed randomly selected patient files and identified problems with Dr. El-Attar’s patient management and care.
Dr. El-Attar’s appointment to Hospital’s medical staff was due to expire on January 31, 2003. In the fall of 2002 he submitted an application for reappointment. The MEC recommended that the application be approved. On January 28, 2003, however, the Governing Board voted to deny the application and directed Greene to summarily suspend Dr. El-Attar’s clinical privileges. The Governing Board’s decision to deny Dr. El-Attar’s application for reappointment did not require the concurrence of the MEC. But when the MEC refused to ratify the Governing Board’s decision to summarily suspend Dr. El-Attar’s privileges, the suspension was automatically terminated.
On March 7, 2003, Dr. El-Attar requested a hearing to contest the Governing Board’s denial of his application. Hospital’s bylaws at that time provided that a judicial review hearing was to be “conducted by a Judicial Review Committee appointed by the Medical Executive Committee and composed of at least five (5) members of the Active Staff” and that the “Medical Executive Committee shall appoint a hearing officer to preside at the hearing.”
The MEC met on March 12, 2003. According to the minutes of that meeting, the MEC determined that “since the MEC did not summarily suspend [Dr. El-Attar’s] privileges, did not recommend any adverse action relating to [Dr. El-Attar]...; and since the requested hearing would be to review actions by the Governing Board; it should be the Governing Board and not the MEC which arranges and prosecutes the requested hearing.” Thus, “a motion was made, seconded and carried that [Dr. El-Attar] should be granted a ...