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Michalski v. Scripps Mercy Hospital

California Court of Appeals, Fourth District, First Division

November 27, 2013

MICHAEL MICHALSKI, Plaintiff and Appellant,
SCRIPPS MERCY HOSPITAL et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2012-00093521- CU-WM-CTL, Joel M. Pressman, Judge.

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[Copyrighted Material Omitted]

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Rosenberg, Shpall & Associates, David Rosenberg and Norman Grissom for Plaintiff and Appellant.

Arent Fox, Lowell C. Brown, Sarah G. Benator and Jonathan E. Phillips for Defendants and Respondents.



This action arises out of the denial of medical staff membership and surgical privileges to the plaintiff Michael Michalski, M.D., at three Scripps Health hospitals after Dr. Michalski was found by the Scripps Judicial Review Committee (JRC), Scripps Health Board of Trustees (Board), and the Medical Board of California (Medical Board) to have committed acts of sexual harassment against staff at another hospital, Sharp Grossmont Hospital (Sharp). Dr. Michalski brought a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 (all further undesignated statutory references are to the Code of Civil Procedure) seeking to overturn the denial of his medical privileges. The court denied the petition.

On appeal Dr. Michalski asserts (1) Scripps acted in bad faith in denying his applications for medical staff privileges by virtue of an improper review and summary denial; (2) the Board improperly applied an "independent judgment" standard of review to overturn the JRC's decision to reject the Medical Executive Committee's (MEC's) recommendation to deny Dr.

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Michalski's applications for medical staff privileges; (3) the Board failed to accord "great weight" to the JRC's findings and conclusions; and (4) the Board's decision to reverse the JRC's decision was not supported by the evidence and constituted an abuse of discretion. We affirm.


A. Findings of Sexual Harassment

According to the Medical Board's decision, which was issued on December 3, 2008, Dr. Michalski treated a female lab technician in a "self-centered, insensitive, and exploitative manner." Dr. Michalski made "numerous inappropriate and provocative sexual comments" to her and also touched her breast and buttocks while they were working in the cardiac catheterization lab (cath lab). On another occasion, while at a restaurant, Dr. Michalski "pushed her against the wall in a hallway outside the women's restroom." Dr. Michalski also entered the women's locker room at the hospital without permission on several occasions when this employee was present, including one occasion when she was in the process of getting dressed. The Medical Board found the employee's testimony "clear and convincing, " in spite of Dr. Michalski's denials.

The Medical Board found that Dr. Michalski also "made numerous inappropriate and provocative sexual comments" to a second female employee at Sharp and "initiat[ed] uninvited physical contact with her." On one occasion, Dr. Michalski "pulled up the hem of [the second employee's] scrub top, exposing her midriff, " and on another occasion he "cupped her right buttock with his hand." In another incident, Dr. Michalski "pushed her head down towards his crotch, as if simulating the commencement of oral sex." Dr. Michalski entered the women's locker room when this second employee was there alone. He then "picked up her civilian jeans and said, 'These things are so tiny, ' and then put them against his crotch and said, 'I think they'll fit.'" The Medical Board also found the second employee's testimony to be "clear and convincing."

A third female employee, an X-ray technician, testified that Dr. Michalski "patted her on the buttocks on two occasions in 2003."

Dr. Michalski made lewd comments and gestures to a fourth female Sharp employee, a registered nurse, including a "gesture which could only be interpreted as involving oral sex, " and engaged in unwanted touching.

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While at a conference dinner in Hawaii, Dr. Michalski told a Boston Scientific representative "that he wanted to have sex with her; he suggested that it would be profitable for her to do so, and warned that he would make continuing sales difficult if she refused." The sales representative was so frightened by this conduct that she asked a friend's husband to walk her back to her room "because she feared returning there unaccompanied."

The Medical Board also made the following conclusion in response to Dr. Michalski's own testimony: "While it cannot be concluded that Dr. Michalski knowingly provided false testimony, it is clear, at a minimum, that in some instances he deliberately emphasized or exaggerated matters to excuse his misconduct (e.g., since he was invited into the women's locker room the first time, he concluded he was always welcome there) and that in other instances he simply blocked out some events altogether (e.g., his groping of [the lab technician] in the Cath Lab)."

Following these incidents, Dr. Michalski entered into an agreement with Sharp acknowledging that such "harassment was illegal, unprofessional, and in violation of the Medical Staff Bylaws and Policies." Dr. Michalski agreed to send written apologies to the victims, to seek psychiatric counseling, and to refrain from any further harassing conduct or retaliation.

However, at the time of this agreement Sharp did not know that Dr. Michalski was engaged in a "secret, sexual relationship" with one of Sharp's registered nurses. After that relationship ended a few months later, Dr. Michalski went to the nurse's home and found another man there, "engaging in the type of relationship with [her] that Dr. Michalski had previously enjoyed." Thereafter, Dr. Michalski left the following message on the nurse's answering machine: "You are a sick, disgusting, fucking maggot. I came over to give you a letter of apology for annoying you the past few days, and I fucking heard you. You are lower than porta-potty shit." The next day, Dr. Michalski passed by the employee at the hospital and whispered "whore." "Later that day, Dr. Michalski left a voice mail message asking [her] 'to avoid... making any specific requests about my patients....'"

Upon learning of this continuing behavior, and his attempt to interfere with patient care, Sharp placed Dr. Michalski on a brief suspension, and Sharp's MEC then recommended that his medical staff privileges be revoked. Dr. Michalski requested and received a judicial review committee hearing at Sharp (Sharp JRC), and the Sharp JRC upheld the MEC's recommendation. In early 2006, after hearing an appeal from the Sharp JRC decision, the Sharp Board agreed with the MEC recommendation and the Sharp JRC determination, and revoked Dr. Michalski's privileges. Among other things, the Board found that Dr. Michalski's harassing conduct "had a sufficient nexus to the

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quality of care in the Hospital to warrant the termination of his privileges on that basis alone." In July 2007 the Medical Board opened an investigation to determine whether discipline by the Medical Board was appropriate.

B. The Peer Review Proceedings

1. Dr. Michalski's application for medical staff membership and privileges at the hospitals

In November 2007 Dr. Michalski applied for medical staff membership and privileges at each of the Scripps Hospitals. On review of Dr. Michalski's application, each of the hospitals' credentials committee (which assist the MEC's in reviewing applications) identified a number of areas in which further inquiry was necessary, including their discovery that Sharp had terminated Dr. Michalski's medical staff membership in 2005, and that the Medical Board's investigation of Dr. Michalski was ongoing. Thereafter, the credentials committees initiated correspondence with Dr. Michalski seeking further information about their concerns. The credentials committees also required Dr. Michalski to sign a release of information from the various institutions where he currently or previously practiced. The credentials committees then sent questionnaires to those facilities in an attempt to obtain further information regarding Dr. Michalski's behavior and conduct. However, Dr. Michalski did not provide the credentials committees with all of the requested information in a timely manner. Moreover, the questionnaires about Dr. Michalski's conduct that were sent to the other hospitals went largely unanswered. For example, when the office of the chief of staff of Alvarado Hospital Medical Center responded to the credentials committees on January 14, 2009, it sent a routine one-page form letter, sent by the medical staff coordinator, that provided only Dr. Michalski's dates of staff affiliation, staff status ("active"), specialty, and a statement that "no medical staff disciplinary actions [had] been taken or [were] pending against" Dr. Michalski. Nor did any of the other hospital facilities respond to the questionnaire.

According to Jerrold Glassman, M.D., the Scripps Mercy Hospital chief of staff at the time of Dr. Michalski's applications, the Department of Navy responded to the letter, but returned the questionnaire blank. Dr. Glassman also testified that he believed questionnaires were also sent to "Sharp, to the La Mesa Cardiology Group, [and] to Alvarado Hospital, " and that he did not "recall any responses" to those questionnaires either. As with the United States Navy, several of the facilities provided generic responses to the letters sent by the credentials committees, but did not respond to the questionnaires.

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Once the Medical Board issued its decision, Dr. Michalski characterized it as "favorable" in letters he sent to the ...

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