Melamed v. Cedars-Sinai Medical Center CA2/1 ( 2021 )

Filed 3/22/21 Melamed v. Cedars-Sinai Medical Center CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
HOOMAN MELAMED, B292794
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS169534)
v.
CEDARS-SINAI MEDICAL
CENTER et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Amy D. Hogue, Judge. Appeal dismissed.
Fenton Law Group, Henry R. Fenton, and Dennis E. Lee for
Plaintiff and Appellant.
Greines, Martin, Stein & Richland, Robin Meadow, and
Jeffrey E. Raskin for Defendants and Respondents.
_______________________________
On July 15, 2011, the medical staff of Cedars-Sinai Medical
Center (Cedars) summarily suspended Hooman Melamed, M.D.’s
privileges to perform back surgeries in scoliosis and kyphosis
cases, after Dr. Melamed’s operation on a 12-year-old scoliosis
patient resulted in complications and necessitated a second,
corrective surgery. In a year-long peer review hearing that began
in September 2012 and concluded in November 2013, Dr.
Melamed challenged the summary suspension of his privileges
(and other recommendations of Cedars’s medical staff not at issue
on appeal). The Hearing Committee concluded, among other
things, the summary suspension was reasonable and warranted
at the time it was imposed but, at the time of the Hearing
Committee’s decision, the portion of the initial suspension that
remained in effect should be terminated and Dr. Melamed’s
privileges reinstated, with prospective review of his clinical
management in pediatric and adolescent scoliosis cases. Dr.
Melamed pursued administrative appeals of the
recommendations not in his favor, and both Cedars’s Appeal
Committee and the Board of Directors of Cedars upheld the
Hearing Committee’s findings, conclusions, and
recommendations. Dr. Melamed filed a petition for a writ of
administrative mandate in the trial court, challenging the
imposition of the summary suspension of his privileges, and the
trial court denied the petition.
On appeal, Dr. Melamed does not challenge the summary
suspension of his privileges at the time it was imposed on July 15,
2011, as he did before the Hearing Committee and in his petition
for a writ of administrative mandate. Instead, he challenges the
sufficiency of the evidence supporting the summary suspension
as of August 1, 2011, 17 days after it was imposed, when Cedars’s
2
medical staff sent him an amended notice of action informing him
the summary suspension remained in effect, and listing
additional patient cases on which the summary suspension was
based. As Dr. Melamed frames the issue on appeal, his
“challenge is relatively narrow: that the August 1, 2011 decision
to continue that summary suspension for more than 14 days, at
which point it became a reportable event, was not reasonable and
warranted, given the information reasonably available to
[Cedars] at the time, and so must be set aside.”
The primary defect in Dr. Melamed’s contention is that the
Hearing Committee was not tasked specifically with evaluating
whether Dr. Melamed’s summary suspension was reasonable and
warranted as of August 1, 2011. And that was a very different
question in light of the investigation Cedars’s medical staff
conducted between the July 15, 2011 imposition of the summary
suspension and August 1, 2011 (e.g., investigating several other
of Dr. Melamed’s surgeries, a meeting of six physicians to discuss
Dr. Melamed’s cases, and a two-hour meeting with Dr. Melamed).
Instead, Dr. Melamed asked the Hearing Committee to evaluate
and make recommendations regarding whether the summary
suspension was reasonable and warranted at the time it was
imposed in July 2011, and whether the portion of the summary
suspension still in effect at the time of the September 2012-
November 2013 hearing should be terminated, among other
issues. In an administrative mandamus proceeding like this one,
we are tasked with reviewing for substantial evidence the
findings, conclusions, and recommendations of the Hearing
Committee—the body with the technical, subject-matter
expertise. It is not the province of this court to review the
medical evidence presented at the peer review hearing and make
3
findings and conclusions in the first instance on an issue not
placed before the Hearing Committee. Because Dr. Melamed did
not place before the Hearing Committee the sole issue he asks us
to review, and the Hearing Committee did not reach any
conclusions on this issue based on the evidence before it, Dr.
Melamed has failed to exhaust his administrative remedies, and
we dismiss his appeal.
BACKGROUND1
Dr. Melamed is a board-certified orthopedic spine surgeon
who has been licensed to practice medicine in California since
2004.
I. The Surgery
On July 11, 2011, Dr. Melamed performed the scoliosis-
correction surgery that led to the summary suspension of his
privileges by Cedars’s medical staff. Dr. Melamed positioned 12-
year-old D.W. on the operating table. During surgery, he noticed
her pelvis was slipping through an opening in the table, altering
the alignment of her spine. He requested larger pads to help him
stabilize her position, but he did not receive them. He asked
nurses to go under the table, push up her pelvis, and hold it still,
but that did not fix the issue. Dr. Melamed did not close D.W.; he
continued to operate. He extended the incision up her spine and
fused her higher vertebrae. Realizing he would not be able to
complete the surgery because of the continuing problems with
1The background facts in this opinion are abbreviated
because we are not reviewing the Hearing Committee’s findings,
conclusions, and recommendations for substantial evidence, as
Dr. Melamed asks us to do. Rather, we are resolving this appeal
based on our analysis of Dr. Melamed’s failure to exhaust his
administrative remedies.
4
D.W.’s position on the table, he placed a temporary rod in her
spine and decided he would perform another corrective surgery
on her in a few days. What Dr. Melamed originally believed
would be a simple surgery lasted more than eight hours. D.W.’s
lordosis (inward curvature of the lumbar spine) was worse after
the surgery, and she had abrasions on her face and body due to
the number of hours she spent on the operating table.
Dr. William Brien, Executive Vice Chairman for the
Department of Surgery, initiated a peer review investigation,
after nursing/operating room staff reported the surgery for
potential review. Dr. Brien reviewed the case with a spine
surgeon, who had performed adolescent scoliosis surgeries. Dr.
Brien also spoke with Dr. Melamed on July 14, 2011, three days
after the surgery. Dr. Brien did not have the benefit of Dr.
Melamed’s operating report because Dr. Melamed had not yet
dictated it, violating Cedars’s rule requiring dictation of such
reports within 24 hours after surgery.
Dr. Brien consulted with the Chair of the Department of
Surgery, who concurred with Dr. Brien’s recommendation that
Cedars’s medical staff impose a summary suspension of Dr.
Melamed’s privileges. After receiving their recommendation, Dr.
Neil Romanoff, the Vice President for Medical Affairs, consulted
with the Chief of Staff, and then decided to impose the summary
suspension.
II. The Summary Suspension and Notices of Charges
A. July 15, 2011 Notice of Action
On July 15, 2011, Cedars’s medical staff sent Dr. Melamed
a Notice of Action (signed by Dr. Romanoff), informing him that,
effective immediately, his privileges to treat scoliosis and
kyphosis in adult, pediatric and adolescent patients were
5
summarily suspended after determination that failure to suspend
such privileges might result in imminent danger to Cedars’s
patients. The notice stated the summary suspension was based
on D.W.’s surgery, explaining: “This case raises concerns
regarding your judgment, technical skill, and competency in
managing scoliosis cases. These concerns are based on your
choice of the wrong table for the patient’s size and procedure,
your failure to adequately stabilize the patient, and your
continued attempts to manipulate the patient’s spine despite
your inability to stabilize her.[2] In addition, the surgery lasted in
excess of 11 hours, which apparently contributed to the pressure
areas [abrasions] that the patient sustained.”[3] The notice
invited Dr. Melamed to provide a written response to the charges
by July 21, 2011.
The July 15, 2011 Notice of Action also stated the medical
staff anticipated contacting Dr. Melamed within 14 days “to
provide a final determination on this action.” The notice further
informed him that if the suspension remained in effect for more
than 14 days, Cedars would report it to the Medical Board of
California and the National Practitioner Data Bank pursuant to
Business and Professions Code section 805, and Dr. Melamed
would be entitled to request a peer review hearing.
After imposition of the summary suspension, the medical
staff’s investigation continued. Dr. Brien consulted with Dr.
David Skaggs, the physician who performed D.W.’s further
2The doctor who performed the further correction surgery
on D.W., a couple days after Dr. Melamed’s summary suspension,
used the same type of operating table Dr. Melamed had used.
3There is evidence indicating the surgery lasted between
eight and nine hours.
6
correction surgery. Dr. Melamed prepared his operative report,
and the medical staff reviewed it. The medical staff reviewed
some of Dr. Melamed’s other scoliosis and kyphosis cases and
found concerns with a few of them. Dr. Melamed’s attorneys
provided a written response to the charges. The medical staff
sent Dr. Melamed requests for information regarding the four
cases under investigation (including D.W.’s case), to which Dr.
Melamed did not initially respond, saying he did not receive the
requests.
On July 27, 2011, Dr. Brien met with five other physicians
to review the four surgeries under investigation. Based on the
information before them, which was limited because they did not
have the information requested from Dr. Melamed, the group
unanimously recommended that Dr. Melamed’s summary
suspension remain in effect. On July 29, 2011, Dr. Brien and Dr.
Richard Delamarter, co-director of the Cedars’s Spine Center,
met with Dr. Melamed for two hours. Because the meeting did
not satisfy their concerns, and Dr. Melamed still had not
provided all requested documents, Drs. Brien and Delamarter
recommended the summary suspension remain in effect.4
B. August 1, 2011 Amended Notice of Action
On August 1, 2011, Cedars’s medical staff sent Dr.
Melamed an Amended Notice of Action, informing him the
4 As indicated above, this factual account does not include
the detailed summary of the investigation that would be required
to address Dr. Melamed’s challenge to the sufficiency of the
evidence supporting the continued summary suspension of his
privileges as of August 1, 2011. This factual account includes the
facts necessary for the chronology of events and the exhaustion of
administrative remedies analysis.
7
summary suspension of his privileges to treat scoliosis and
kyphosis in adult, pediatric and adolescent patients remained in
effect, based on D.W.’s case as well as the other enumerated cases
the medical staff identified during its review of his other
surgeries. Regarding D.W.’s case, the amended notice stated:
“That case reflected concerns regarding your poor judgment in
extending the correction level in a pediatric patient when you
could not achieve the correction and your poor technical skill in
failing to achieve the desired correction and causing a hyperlordic
spine.” Regarding the other enumerated patient cases, the
amended notice stated the medical staff “was concerned about
several issues, including without limitation, your poor judgment
in deciding to proceed in a complex case on a 15 year old without
an assistant, your poor judgment in performing a surgery in the
presence of an active infection, and your lack of competence in
proceeding with surgeries in the context of questionable
indications.” The amended notice also explained that Dr.
Melamed’s statements during the July 29, 2011 meeting did not
assuage the medical staff’s concerns about these cases, and the
medical staff believed failure to maintain the summary
suspension might result in imminent danger to Cedars’s patients
and employees.
The August 1, 2011 Amended Notice of Action also
informed Dr. Melamed that the summary suspension would be
reported to the Medical Board of California and the National
Practitioner Data Bank (and it was), as required by law, because
the summary suspension had been in effect for more than 14
days. The amended notice also apprised Dr. Melamed of his
hearing rights. Finally, the amended notice advised Dr.
Melamed to provide the information that had been requested in
8
earlier correspondence regarding the enumerated patient cases.
The amended notice explained that if he did not provide the
information, or the information he provided did not resolve the
medical staff’s concerns, the medical staff would recommend that
his privileges to treat scoliosis and kyphosis in adult, pediatric
and adolescent patients be terminated.
On August 11, 2011, Dr. Melamed provided some of the
requested documents, with a letter to Dr. Brien, stating “the
Department should now have all or substantially all of the salient
documentation necessary to complete a thorough review of my
performance in each case.” On August 22, 2011, the medical staff
requested further information from Dr. Melamed on D.W.’s case.
On August 29, 2011, Dr. Melamed requested a peer review
hearing to challenge the summary suspension.
C. September 21, 2011 Second Amended Notice of
Action
On September 21, 2011, Cedars’s medical staff sent Dr.
Melamed a Second Amended Notice of Action, informing him that
after meeting with him again and reviewing materials he
provided, the medical staff recommended his privileges to treat
scoliosis and kyphosis in pediatric patients be terminated. The
second amended notice also informed him the medical staff was
lifting the summary suspension of his privileges to treat scoliosis
and kyphosis in adult cases and imposing a proctoring
requirement with respect to such cases. The second amended
notice stated Cedars would construe Dr. Melamed’s August 29,
2011 request for a peer review hearing on the summary
suspension to include the recommendation for termination of
privileges and the proctoring requirement.
9
III. The Peer Review Hearing and Administrative Appeal
The peer review hearing was held during 15 sessions
between September 2012 and November 2013. Both sides were
represented by counsel throughout.
A. Issues placed before the Hearing Committee
After the presentation of evidence and the arguments of
counsel, the Hearing Officer advised the Hearing Committee in
pertinent part as follows regarding the issues the committee was
tasked with evaluating:
“The medical staff and Dr. Melamed have agreed that I
should advise you regarding your deliberations as follows.
“Dr. Melamed is challenging two separate actions of the
medical staff. The first is the July 15, 2011 summary suspension
of his privileges to treat adult, pediatric and adolescent scoliosis
and kyphosis patients.
“The second is the recommended termination of these
privileges for pediatric and adolescent patients, and the
imposition of level III proctoring of those privileges for adult
patients.
“In regard to the summary suspension of Dr. Melamed’s
privileges to treat adult, pediatric and adolescent scoliosis and
kyphosis patients, the medical staff has the burden of proof to
show by a preponderance of the evidence that the decision to act
immediately to summarily suspend Dr. Melamed was reasonable
and warranted to protect against the possibility of imminent
danger to the health of a [Cedars] patient or a prospective
patient.
[¶] . . . [¶]
“In making your decision whether the suspension was
reasonable and warranted, you should consider only evidence
10
that was known or should reasonably have been known to the
medical staff at the time of the summary suspension.
[¶]
“You must decide whether the revocation and proctoring
recommendations are reasonable and warranted, separate and
apart from your decision about whether the summary suspension
was reasonable and warranted.
“In making this decision you may consider all of the
evidence you heard or read during the hearing. . . .”
B. The Hearing Committee’s report
On January 13, 2014, the Hearing Committee issued its
report. Therein, the Hearing Committee stated it was tasked
with evaluating the summary suspension of Dr. Melamed’s
privileges to treat scoliosis and kyphosis in adult, adolescent, and
pediatric patients, “as described in the notice of action dated July
15, 2011, and amended notice of action dated August 1, 2011.”
The Hearing Committee’s findings and conclusions regarding the
summary suspension state in full:
“a. Dr. Melamed admitted and performed surgery with
instrumentation and occipital fusion on adolescent scoliosis
patient [D.W.] on July 11, 2011. Before surgery, Dr. Melamed
treated [D.W.] as an outpatient in his office for several years. Dr.
Melamed’s office record satisfactorily recorded the progression of
her condition, his treatment of her and the indications for
surgery. Although clinical judgment may differ whether [D.W.]
was an appropriate candidate for surgery with her degree of
spinal curvature, the preponderance of evidence was that Dr.
Melamed’s rationale for operating on the patient was reasonable.
“b. The Department of Surgery acted reasonably in
conducting an investigation of the case because of the routine
11
nature of the case, unsatisfactory correction of the patient’s
spinal curvature and the harm to the patient of a worsened post-
surgical spinal curvature, pressure sores, an extended fusion, a
prolonged hospitalization and a second surgery.
“c. The ad hoc committee of the Department of Surgery
that investigated the case reasonably concluded that, based on
the information available to it at the time, (i) Dr. Melamed[]
failed initially to realize that the patient was losing position on
the operating table, (ii) Dr. Melamed extended the fusion
inappropriately and (iii) the failure to suspend Dr. Melamed’s
clinical privileges to treat patients with scoliosis or kyphosis with
instrumentation and with or without occipital fusion may result
in imminent danger to prospective patients.
“Based upon the foregoing findings, the [Hearing
Committee] concludes that (i) the Staff sustained its burden to
prove by a preponderance of the evidence that, based on the
information reasonably available in July of 2011, the failure to
take action may have resulted in imminent danger to the health
of a patient and it was necessary to act immediately and (ii) the
summary suspension of Dr. Melamed’s clinical privileges to treat
scoliosis and kyphosis with instrumentation with or without
occipital fusion in adult, adolescent and pediatric patients was
reasonable and warranted.” The Hearing Committee further
recommended the summary suspension now be terminated and
Dr. Melamed’s privileges be reinstated.
As stated in the January 13, 2014 report, the Hearing
Committee also made findings and conclusions regarding
Cedars’s medical staff’s recommendations in the September 21,
2011 Second Amended Notice of Action: (1) that Dr. Melamed’s
privileges to treat scoliosis and kyphosis in adolescent and
12
pediatric patients be terminated and (2) that Level III proctoring
be imposed with respect to Dr. Melamed’s privileges to treat
scoliosis and kyphosis in adult patients. In these sections of the
report, the Hearing Committee made findings regarding the
other patient cases identified in the August 1, 2011 Amended
Notice of Charges. The Hearing Committee concluded the above-
described recommendation regarding termination of privileges
“was not reasonable and warranted. However, it would be
reasonable and warranted for the Medical Executive Committee
to authorize a prospective review of the clinical management of
Dr. Melamed’s pediatric and adolescent scoliosis cases by a
method to be determined by the Department of Orthopedic
Surgery.” The Hearing Committee concluded the above-described
recommendation regarding Level III proctoring “should not be
imposed.”
Cedars’s Medical Executive Committee “endorsed” the
findings, conclusions, and recommendations in the Hearing
Committee’s report.
C. Administrative Appeal
Through the administrative process, Dr. Melamed appealed
the Hearing Committee’s findings and conclusions regarding the
summary suspension and the recommendation for prospective
review of the clinical management of his pediatric and adolescent
scoliosis cases. Both Cedars’s Appeal Committee and later its
Board of Directors upheld the Hearing Committee’s findings,
conclusions, and recommendations.
IV. The Petition for a Writ of Administrative Mandate
On May 4, 2017, Dr. Melamed filed in the trial court a
petition for a writ of administrative mandate against Cedars and
its Board of Directors. He described the basis for his petition as
13
follows: “[Cedars and its Board of Directors] committed gross
error in finding that the summary suspension of Dr. Melamed
was reasonable and justified at the time it was imposed, in or
about July or August 2011, based on the information available at
the time. In fact, the overwhelming evidence available at the
time was that Dr. Melamed had, at all times, behaved in a
completely competent and professional manner, and that the
minor and temporary adverse result in the case of patient [D.W.]
-- which was readily corrected by [another doctor] with the correct
equipment, and which would have been readily corrected by Dr.
Melamed, with the correct equipment, if he had been given the
opportunity to do so, as he had planned to do prior to his
summary suspension.”
In his opening brief in support of his petition, filed on May
3, 2018, Dr. Melamed stated: “The sole basis for the initial
summary suspension of July 15, 2011 was a July 11, 2011
scoliosis correction surgery of an adolescent patient [D.W.]. In
the August 1, 2011 decision to continue the suspension, [Cedars]
also relied on four other very minor patient cases. The legal basis
for [the petition for a writ of administrative mandate] is twofold:
(a) substantial evidence does not support the decision to continue
the August 1, 2011 decision [sic]; and (b) Dr. Melamed was not
given fair opportunity to respond before August 1, 2011.” Dr.
Melamed further asserted, “while it may or may not have been
reasonable to impose the immediate summary suspension,
[Cedars]’s action on August 1, 2011 in continuing the summary
suspension in excess of 14 days, leading to a reportable event,
was not reasonable and warranted, based on the information that
[Cedars] knew or should reasonably have known at the time, nor
was he given fair opportunity to respond.”
14
In the opposition to Dr. Melamed’s petition, Cedars and its
Board of Directors argued Dr. Melamed’s challenge to his
summary suspension—as newly framed in his opening brief as a
challenge to the August 1, 2011 continuation of his summary
suspension—was barred by his failure to exhaust his
administrative remedies and plead the issue in his petition. In
the alternative, Cedars and its Board of Directors argued
substantial evidence supported the summary suspension, both at
the time it was imposed on July 15, 2011, and as of August 1,
2011 when the medical staff informed him the summary
suspension would remain in effect.
On July 18, 2018, after hearing oral argument by the
parties, the trial court issued a 16-page order, denying Dr.
Melamed’s petition for a writ of administrative mandate on all
grounds set forth in the opposition brief: failure to exhaust
administrative remedies and plead the issue in the petition, and
substantial evidence supporting the summary suspension. On
August 13, 2018, the trial court entered judgment in favor of
Cedars and its Board of Directors.
DISCUSSION
“In Business and Professions Code section 809 et seq., ‘the
Legislature has granted to individual hospitals, acting on the
recommendations of their peer review committees, the primary
responsibility for monitoring the professional conduct of
physicians licensed in California.’ ” (Eight Unnamed Physicians
v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.) A
“doctor who is challenging the propriety of a hospital’s denial or
withdrawal of staff privileges must pursue the internal remedies
afforded by that hospital to a final decision on the merits before
resorting to the courts for relief. [Citations.] This requirement
15
both accords recognition to the expertise of the organization’s
quasi-judicial tribunal and promotes judicial efficiency by
unearthing the relevant evidence and providing a record that the
court may review. [Citation.] ‘The exhaustion doctrine “is not a
matter of judicial discretion, but is a fundamental rule of
procedure” [citation] under which “relief must be sought from the
administrative body and this remedy exhausted before the courts
will act.” ’ ” (Unnamed Physician v. Board of Trustees of Saint
Agnes Medical Center (2001) 93 Cal.App.4th 607, 619-620;
Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d
465, 469, 476; Monterey Coastkeeper v. State Water Resources
Control Bd. (2018) 28 Cal.App.5th 342, 359 [“ ‘The primary
purpose of the doctrine [of exhaustion of administrative
remedies] “is to afford administrative tribunals the opportunity
to decide in a final way matters within their area of expertise
prior to judicial review.” [Citation.] “The essence of the
exhaustion doctrine is the [tribunal]’s opportunity to receive and
respond to articulated factual issues and legal theories before its
actions are subjected to judicial review” ’ ”].)
“To advance the purpose of the exhaustion doctrine, the
exact issue, not merely generalized statements, must be raised.
[Citation.] ‘ “The petitioner bears the burden of demonstrating
that the issues raised in the judicial proceeding were first raised
at the administrative level. [Citation.]” [Citation.] An appellate
court employs a de novo standard of review when determining
whether the exhaustion of administrative remedies doctrine
applies.’ ” (Monterey Coastkeeper v. State Water Resources
Control Bd., supra, 28 Cal.App.5th at p. 359, italics added.)
On appeal, Dr. Melamed contends the continuation of the
summary suspension as of August 1, 2011 was not reasonable
16
and warranted in light of the information reasonably available to
Cedars. Dr. Melamed has not met his burden of demonstrating
he raised this issue before the Hearing Committee in his peer
review hearing, and we conclude he did not.
As set forth above, after the parties’ presentation of
evidence and argument at the peer review hearing, the Hearing
Officer read to the Hearing Committee the parties’ agreed upon
statement regarding the issues the Hearing Committee was
tasked with evaluating. The Hearing Officer began: “Dr.
Melamed is challenging two separate actions of the medical staff.
The first is the July 15, 2011 summary suspension of his
privileges to treat adult, pediatric and adolescent scoliosis and
kyphosis patients. [¶] “The second is the recommended
termination of these privileges for pediatric and adolescent
patients, and the imposition of level III proctoring of those
privileges for adult patients.” The parties’ agreed upon
statement of issues, as read by the Hearing Officer, did not tell
the Hearing Committee that one of the actions it was supposed to
evaluate was the continuation of the summary suspension as of
August 1, 2011.
The Hearing Officer went on to tell the Hearing Committee,
as part of the parties’ agreed upon statement: “In regard to the
summary suspension of Dr. Melamed’s privileges to treat adult,
pediatric and adolescent scoliosis and kyphosis patients, the
medical staff has the burden of proof to show by a preponderance
of the evidence that the decision to act immediately to summarily
suspend Dr. Melamed was reasonable and warranted to protect
against the possibility of imminent danger to the health of a
[Cedars] patient or a prospective patient.” (Italics added.) The
decision on August 1, 2011 to allow the summary suspension to
17
remain in effect cannot be characterized as a decision to act
immediately to summarily suspend Dr. Melamed. The decision to
act immediately occurred on July 15, 2011 when the medical staff
imposed the summary suspension. Thus, it is clear from the
statement of issues that the parties sought an evaluation of
whether the summary suspension was reasonable and warranted
at the time it was imposed on July 15, 2011—not as of August 1,
2011, after further investigation conducted by Cedars’s medical
staff, including review of several other of Dr. Melamed’s
surgeries, a meeting of six physicians to discuss Dr. Melamed’s
cases, and a two-hour meeting with Dr. Melamed.
The Hearing Officer further informed the Hearing
Committee: “In making your decision whether the suspension
was reasonable and warranted, you should consider only evidence
that was known or should reasonably have been known to the
medical staff at the time of the summary suspension.” For
purposes of evaluating the summary suspension, therefore, the
Hearing Committee was not given the option of considering
evidence known to the medical staff after imposition of the
summary suspension and at the time the summary suspension
was continued on August 1, 2011.
The Hearing Officer told the Hearing Committee they could
consider evidence known to the medical staff after imposition of
the summary suspension (July 15, 2011) with regard to the issues
other than summary suspension: “You must decide whether the
revocation and proctoring recommendations are reasonable and
warranted, separate and apart from your decision about whether
the summary suspension was reasonable and warranted. [¶] In
making this decision you may consider all of the evidence you
heard or read during the hearing.” (Italics added.)
18
The Hearing Committee’s January 13, 2014 report
detailing its findings, conclusions, and recommendations
demonstrates the Hearing Committee followed the Hearing
Officer’s instructions (as agreed upon by the parties) regarding
the issues and consideration of the evidence. The Hearing
Committee’s findings regarding the summary suspension only
address patient D.W., the only case under investigation on July
15, 2011, the date of imposition of the summary suspension. The
August 1, 2011 amended notice of action, informing Dr. Melamed
the summary suspension would remain in effect, also informed
him there were several, additional cases under investigation.
The Hearing Committee made findings and conclusions on those
other cases in making recommendations regarding termination of
Dr. Melamed’s privileges and lifting the summary suspension,
but not in concluding the summary suspension was reasonable
and warranted when it was imposed.
The Hearing Committee’s conclusions regarding the
summary suspension state, in pertinent part, “the Staff sustained
its burden to prove by a preponderance of the evidence that,
based on the information reasonably available in July of 2011,
the failure to take action may have resulted in immediate danger
to the health of a patient and it was necessary to act
immediately.” (Italics added.) Again, the only action taken
immediately was that to impose the summary suspension on July
15, 2011, and not that to continue the summary suspension on
August 1, 2011.5
The Hearing Committee referenced the August 1, 2011
5
Amended Notice of Action once in relation to the summary
suspension, in stating Dr. Melamed was challenging, “[s]ummary
suspension of his clinical privileges to treat scoliosis and kyphosis
19
Dr. Melamed argues the August 1, 2011 continuation of the
summary suspension was necessarily part of his administrative
challenge because a physician is only entitled to a peer review
hearing if the summary suspension remains in effect for more
than 14 days after its imposition. (Bus. & Prof. Code, §§ 809.1,
809.3; Sadeghi v. Sharp Memorial Medical Center Chula Vista
(2013) 221 Cal.App.4th 598, 615.) In his reply appellate brief, he
asserts: “In a strict sense, the continuation of the suspension
past 14 days was not so much a separate action as it was part of
the same suspension. While the July 15, 2011 Notice of Action
and the August 1, 2011 Amended Notice of Action have been
referred to as separate actions, they were really part of the same
adverse action being challenged by Dr. Melamed—the summary
suspension—with only the latter triggering his appeal rights
[peer review hearing].” We note that Dr. Melamed himself
separates these actions, expressly abandoning his challenge to
the sufficiency of the evidence supporting imposition of the
summary suspension on July 15, 2011, and maintaining a
challenge to the sufficiency of the evidence supporting the
continuation of the summary suspension as of August 1, 2011.
with instrumentation and with or without occipital fusion in
adult, adolescent and pediatric patients as described in the notice
of action dated July 15, 2011, and amended notice of action dated
August 1, 2011. (Italics added.) That the Hearing Committee
indicated the August 1, 2011 Amended Notice of Action described
the summary suspension, does not mean the Hearing Committee
was evaluating whether the continuation of the summary
suspension on August 1, 2011 was reasonable and warranted,
and we do not interpret the report in that manner, despite Dr.
Melamed’s claim to the contrary.
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The problem for Dr. Melamed is the Hearing Committee
did not evaluate or make findings or conclusions regarding
whether the information known to Cedars’s medical staff on
August 1, 2011 supported continuation of the summary
suspension, and the parties did not ask the Hearing Committee
to do so.6 Without such findings and conclusions there is nothing
for this court to review. To entertain this issue, we would be
making factual findings and conclusions in the first instance,
which we may not do. It is for the body with subject matter
expertise to make such factual findings and conclusions in the
first instance.
Dr. Melamed and Cedars’s medical staff agreed on the
questions they wanted the Hearing Committee to address. If Dr.
Melamed wanted the Hearing Committee to address the evidence
supporting the summary suspension as of August 1, 2011, he
6 The Hearing Committee considered information known to
Cedars after July 15, 2011 (e.g., the patient cases other than
D.W.) for purposes of making its recommendations regarding
termination of Dr. Melamed’s privileges and lifting the summary
suspension, issues it evaluated as of the time of the peer review
hearing. Accordingly, we are not compelled by Dr. Melamed
pointing out that he referenced information Cedars knew after
July 15, 2011 in his briefs and arguments before the Hearing
Committee, as such information was relevant to the other issues
the Hearing Committee was evaluating.
The Hearing Committee referenced the July 27, 2011
meeting of physicians in the summary suspension portion of its
January 13, 2014 report, not as an indication it was evaluating
the reasonableness of the summary suspension as of August 1,
2011, but in support of its conclusion the July 15, 2011 imposition
of the summary suspension was reasonable and warranted, as
the group of physicians concluded on July 27, 2011.
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should have placed that issue before the Hearing Committee by
including it in the parties’ agreed upon statement. He did not.
He only asked for the Hearing Committee to review “the July 15,
2011 summary suspension of his privileges to treat adult,
pediatric and adolescent scoliosis and kyphosis patients” and “the
recommended termination of these privileges for pediatric and
adolescent patients, and the imposition of level III proctoring of
those privileges for adult patients.” He cannot now complain the
Hearing Committee did not evaluate an issue he did not raise to
the committee.
For the foregoing reasons, we conclude Dr. Melamed failed
to exhaust his administrative remedies as to the only issue he
raises on appeal. It was his burden to demonstrate he placed
before the Hearing Committee the issue he now raises on appeal,
and he did not satisfy that burden. Accordingly, we dismiss his
appeal.
DISPOSITION
The appeal from the judgment is dismissed. Respondents
are entitled to recover costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J. FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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