El-Attar v. Hollywood Presbyterian Med. Center CA2/4

Filed 12/19/13 El-Attar v. Hollywood Presbyterian Med. Center CA2/4
Opinion following remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
OSAMAH A. EL-ATTAR, B209056
Plaintiff and Appellant, (Los Angeles Country
Super. Ct. No. BS105623)
v.
HOLLYWOOD PRESBYTERIAN
MEDICAL CENTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles Country,
Mary Ann Murphy, Judge. Affirmed.
Lurie, Zepeda, Schmalz & Hogan, Kurt L. Schmalz for Plaintiff and Appellant.
Horvitz & Levy, David S. Ettinger and H. Thomas Watson; Christensen & Auer,
Jay D. Christensen and Anna M. Suda, for Defendant and Respondent.
______________________________
Appellant Osamah El-Attar, a cardiologist, was denied reappointment to the
medical staff of respondent Hollywood Presbyterian Medical Center, a private hospital
(sometimes referred to here as “the hospital”). His appeal from the trial court’s judgment
denying his petition to set aside respondent’s decision is before us for the second time. In
our previous opinion, we reversed the judgment on the sole ground that respondent’s
selection of a hearing officer and panel to hear appellant’s case violated the medical staff
bylaws. The Supreme Court granted review and reversed, concluding the violation was
not material. It remanded the case to us to consider appellant’s remaining claims.
Appellant argues that he was denied a fair peer review hearing and that respondent’s
decision is not supported by substantial evidence. We do not agree, and affirm the
judgment.
FACTUAL AND PROCEDURAL SUMMARY
In the summer of 2002, a survey team from the federal Centers for Medicare and
Medicaid Services investigated complaints about respondent’s peer review process. The
resulting report of deficiencies identified problems with peer review and quality
assurance that needed to be corrected to avoid respondent’s removal from the Medicare
and Medi-Cal programs. Respondent’s Governing Board formed an Ad Hoc Committee
(AHC) to oversee the corrective action. In addition to conducting an internal audit, the
AHC engaged two outside auditors, National Medical Audit (NMA) and Steven Hirsch
and Associates (Hirsch). The Medical Executive Committee (MEC), of which appellant
was a member, disagreed with the Governing Board’s approach.
In the fall of 2002, the internal audit identified appellant as one of a group of
specialists who appeared to refer emergency room patients for unnecessary consultations.
The outside auditors then performed focused reviews of physicians identified in the
internal audit, including appellant. As to appellant, NMA reviewed 13 medical files,
involving 17 admissions, and found four categories of problems: unacceptable care,
overuse of services, substandard documentation and inadequate initial evaluation, and
patient relationship issues. The Hirsch review of 30 of appellant’s files found evidence
2
of behavioral problems (such as loss of temper and use of abusive language); substandard
care and documentation; and unjustified use of risky, painful, and costly procedures (such
as cardiac catheterization).1
Based on these reviews, in January 2003, the AHC recommended that appellant’s
staff privileges be suspended and his pending application for reappointment denied. The
MEC declined to take action against appellant or to ratify his summary suspension. The
Governing Board then voted to deny reappointment and to continue appellant’s privileges
for up to six months. Appellant requested a peer review hearing under the medical staff
bylaws. On March 12, 2003, the MEC voted to leave the procedural actions related to the
hearing to the Governing Board. As a result, the AHC, instead of the MEC, issued the
notice of charges against appellant, selected a hearing officer, and appointed six panel
members to the Judicial Review Committee (JRC) that was to hear appellant’s case.2
The notice of charges against appellant alleged that he demonstrated a pattern of
dangerous, unacceptable, substandard medical practice and inadequate, substandard
documentation; overused hospital services; and engaged in inappropriate interpersonal
relations with patients, their families, and staff. It also alleged that he failed to obtain
patients’ informed consent for procedures and that his abusive treatment of patients and
staff had been the subject of an earlier investigation.
The peer review hearing began in May 2003 with a voir dire of the hearing officer
and panel members. Before any evidence was taken, one panel member was excused,
two resigned, and two new members were appointed in their place, bringing the number
of panel members to five. In January 2005, after more than 20 hearing sessions, one of
the panel members resigned for personal reasons, leaving the JRC with only four
1
The NMA report stated respondent “pre-selected” the medical files for a focused
review. A witness for respondent testified at the peer review hearing that the patient files
were randomly selected.
2
Appellant’s 2003 petition for writ of mandate, challenging the Governing
Board’s authority under the bylaws to select the hearing officer and JRC members, was
denied.
3
members. The hearing officer overruled appellant’s objection that proceeding with only
four panel members violated the bylaws. The evidentiary proceedings closed in July
2005, after approximately 30 sessions over two years.
When the JRC met to deliberate in August 2005, its chair, Dr. Mynatt, announced
he could not participate because his medical group was contemplating litigation against
respondent’s owner, Tenet Health System QA, Inc. (Tenet), which he believed would
create a conflict of interest. The remaining three members declined to deliberate without
him. After further consultation with his attorney, Dr. Mynatt determined he did not in
fact have a conflict of interest since Tenet no longer owned the hospital. The other three
members agreed to resume deliberations, and the panel was reconstituted.
In its October 2005 decision, the JRC upheld three of the six charges against
appellant, concluding that he demonstrated a pattern of dangerous, unacceptable,
substandard medical practice; provided inadequate, substandard medical record
documentation; and had inappropriate interpersonal relations with staff. The JRC
concluded the Governing Board’s decision to deny appellant’s application for
reappointment was “reasonable and warranted,” although the JRC “would have pursued
an intermediate resolution” had it made the initial decision. After reviewing the record of
the JRC hearing, an appeal board concluded that appellant received a fair hearing and the
JRC’s decision was supported by substantial evidence. On the appeal board’s
recommendation, the Governing Board upheld the JRC’s decision and in August 2006
terminated appellant’s medical staff membership and clinical privileges.
Appellant filed a petition for writ of administrative mandate. (Code Civ. Proc.,
§ 1094.5) The trial court granted his motions to conduct discovery into Dr. Mynatt’s
alleged conflict of interest that caused his recusal in 2005, and the administrative record
was augmented with statements by the hearing officer and Dr. Mynatt in response to the
court’s discovery orders. Over respondent’s objection, the court also allowed appellant to
augment the record with a complaint Tenet had filed against him in June 2003. The court
issued a detailed statement of decision, finding that appellant received a fair hearing, and
4
that respondent’s decision was supported by substantial evidence. Appellant’s writ
petition was denied.
On appeal, appellant argued he was denied a fair hearing because respondent
violated the medical staff bylaws by allowing the Governing Board to select the hearing
officer and JRC members and by not providing appellant with proper notice of the
charges against him. Appellant argued the hearing officer violated the bylaws by limiting
voir dire, overruling appellant’s objections to JRC members with economic ties to
respondent, allowing the hearing to proceed with a four-member panel, reconstituting the
panel after it disbanded, allowing Dr. Mynatt to return to the panel after he recused
himself, and not allowing appellant to voir dire the re-empanelled members. Appellant
also contended respondent’s decision was not supported by substantial evidence.
In our previous opinion, we concluded appellant was given adequate notice of the
charges against him, but we reversed the trial court’s judgment because the Governing
Board’s selection of the hearing officer and JRC members violated the bylaws and did
not comport with fair procedure. We contrasted that violation with the immaterial
violation of the requirement in the bylaws that the JRC panel consist of at least five
members. The Supreme Court granted appellant’s petition for review and reversed our
judgment, holding that the Governing Board’s selection of the hearing officer and JRC
members did not by itself deprive appellant of a fair hearing. The court remanded the
case to us to consider appellant’s remaining claims. (El-Attar v. Hollywood Presbyterian
Medical Center (2013) 56 Cal.4th 976, 997 (El-Attar).)
On remand, the parties filed supplemental briefs. (Cal. Rules of Court, rule
8.200(b).)
DISCUSSION
I
We begin with a brief overview of the procedural requirements that apply to
respondent’s decision. Hospital peer review proceedings are governed by a statutory
scheme that guarantees physicians at least minimum procedural protections. (Bus. &
5
Prof. Code, §§ 809–809.8.)3 Medical staff bylaws may provide additional protections, so
long as they are consistent with the statutory scheme. (El-Attar, supra, 56 Cal.4th at
pp. 988–989. ) The medical staff has the primary role in the peer review process, but a
hospital’s administrative governing body may take disciplinary action against a physician
when the medical staff’s refusal to do so is against the weight of the evidence. (Id. at
pp. 992–993, citing § 809.05.)
Respondent’s medical staff bylaws envision the MEC as the body making the
initial adverse recommendation, constituting the JRC, and persuading the panel by
preponderance of the evidence that its recommendation is reasonable and warranted.
(Queen of Angels-Hollywood Presbyterian Medical Center Medical Staff Bylaws, art.
VIII, §§ A(1)(a), C(8) & (11)(g)(3) (Bylaws).) The Governing Board then renders the
final decision, affirming the JRC’s decision if it “is supported by substantial evidence,
following a fair procedure.” (Bylaws, art. VIII, § C(12)(f)(1).) When an appeal is taken,
the Governing Board may appoint an appeal board to conduct an appellate hearing and
issue a recommendation to the Governing Board. (Bylaws, art. VIII, § C(12)(d) & (e).)
In this case, because the MEC refused to take action against appellant, the
Governing Board took the initial adverse action against him based on the audit results,
under section 809.05, subdivision (c). (See El-Attar, supra, 56 Cal.4th at p. 993
[“although the governing body must give deference to the determinations of the medical
staff, it may take unilateral action if warranted”].) The Governing Board ’s initial
recommendation was affirmed by the JRC, whose decision was in turn affirmed by the
appeal board and approved by the Governing Board. The final decision is subject to
judicial review by administrative mandate under Code of Civil Procedure section 1094.5.
(See § 809.8; Ellison v. Sequoia Health Services (2010) 183 Cal.App.4th 1486, 1495.)
Whether respondent followed a fair procedure is an issue of law, subject to independent
review based on the administrative record. (Id. at p. 1496.)
3
Unless otherwise indicated, all further statutory references are to the Business
and Professions Code.
6
As a preliminary matter, we resolve the parties’ disagreement about the fair
procedure issues that remain to be decided in this case. Appellant claims that since the
Supreme Court “reluctantly” accepted the finding that the MEC “delegated” to the
Governing Board its power to select the hearing officer and JRC members, we should
reconsider that finding. The Supreme Court acknowledged that the minutes from the
MEC’s March 12, 2003 meeting constituted substantial evidence of delegation and stated
that “we must accept the trial court’s finding that the MEC did, in fact, delegate its power
of appointment to the Governing Board.” (El-Attar, supra, 56 Cal.4th at p. 989.) Under
the law of the case doctrine, we cannot reconsider a conclusion on which the Supreme
Court’s decision was based. (See Roden v. AmerisourceBergen Corp. (2007) 155
Cal.App.4th 1548, 1576 [when “‘an appellate court states in its opinion a principle of law
necessary to the decision, that principle becomes law of the case and must be adhered to
in all subsequent proceedings, including appeals’”].)
In our previous opinion, we noted that the trial court denied appellant’s request to
depose two MEC members, who he claimed had told him that no vote was taken at the
March 12, 2003 meeting, despite the contrary record in the minutes. We do not consider
appellant’s renewed conclusory claim that the court erred in denying the discovery
request. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [conclusory
presentation forfeits issue on appeal].) Even were we to consider it, we would find no
abuse of discretion since, as the trial court noted, the declarations by the MEC members
stated only that the MEC was told a vote was unnecessary, not that a vote was not taken.
(See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [discovery orders
are reviewed for abuse of discretion].)
Our previous opinion concluded that appellant received adequate notice of the
charges against him since the amended charges included detailed allegations supported
by specific medical records, summaries of incidents, and references to the outside audit
reports that identified problems in individual patient cases. (See Unnamed Physician v.
Board of Trustees (2001) 93 Cal.App.4th 607, 623–624 [notice adequate if act or
omission tied to patient chart].) Unlike the physician in Rosenblit v. Superior Court
7
(1991) 231 Cal.App.3d 1434, 1446 (Rosenblit), appellant was not left to mine through the
medical records to identify the deficiencies with which he was charged as to each patient.
Our original determination that notice was adequate was intended to guide the
parties on remand. (See Lucky United Properties Investments, Inc. v. Lee (2013)
213 Cal.App.4th 635, 645 [law of the case applies to issues decided in order to provide
guidance on remand].) Appellant urges us to reconsider it. We see no reason to do so.
The Supreme Court did not take issue with that portion of our opinion, and it remanded
the case to us to consider claims we had found unnecessary to reach before. (El-Attar,
supra, 56 Cal.4th at p. 997.) Appellant provides no new authority requiring us to reach a
different conclusion on the adequacy of the notice of charges against him.
Appellant acknowledges that our previous opinion suggested the decision to
proceed with four JRC members, when the Bylaws (art. VIII, § C(8)) required five,4 may
be an immaterial violation. Indeed, appellant fails to explain how the number of panel
members was prejudicial or unfair if the JRC rendered a unanimous decision. The
Supreme Court suggested that immaterial violations of the bylaws may be relevant
evidence of bad intent. (See El-Attar, supra, 56 Cal.4th at p. 997.) Appellant now urges
us to consider the cumulative effect of that violation in the context of other alleged
violations.
The hearing officer has discretion over procedural matters, efficiency and
expediency. (Bylaws, art. VIII, § C(11)(c).) We see efficiency and expediency, rather
than bad intent, in the hearing officer’s decision to proceed with four members when the
fifth member resigned for personal reasons after more than 20 hearing sessions in over a
year. A total of eight members had been appointed to the JRC to allow for a safety
margin, and the chance reduction of their number to four, mostly through resignation and
without any suggestion of improper involvement on respondent’s part, is both immaterial
and irrelevant. We see no reason to consider this issue further.
4
Sometime during the proceeding, the medical staff bylaws were amended to
require only three JRC members.
8
Appellant’s remaining fair procedure claims concern the hearing officer’s
decisions on the perceived bias of the four JRC members, and particularly of the JRC’s
chair, Dr. Mynatt. We examine these claims next.
A. Financial Interest as Evidence of Bias
A physician at a private hospital has fair procedure rights arising “from section
809 et seq. and not from the due process clauses of the state and federal Constitutions.
[Fn. omitted.]” (Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th
85, 102.) Under the statute, a physician is entitled to a hearing before “a panel of
unbiased individuals who shall gain no direct financial benefit from the outcome, who
have not acted as an accuser, investigator, factfinder, or initial decisionmaker in the same
matter, and which shall include, where feasible, an individual practicing the same
specialty.” (§ 809.2, subd. (a).) The Bylaws (art. VIII, § C(8)) contain similar
requirements, providing further that, if feasible, the JRC must be composed of members
of the active medical staff. Appellant argues that the hearing officer incorrectly ignored
the JRC members’ substantial financial ties to respondent only because they did not
derive a direct financial benefit from the outcome of the hearing.
Disqualification of a member of a review panel is appropriate if there is “actual
bias,” or if “a situation exists under which human experience teaches that the probability
of actual bias is too high to be constitutionally tolerable.” (Lasko v. Valley Presbyterian
Hospital (1986) 180 Cal.App.3d 519, 529 (Lasko).) Actual bias need not be
demonstrated when a decision-maker has a financial interest; in such cases, “an
objective, intolerably high risk of actual bias will suffice.” (Today’s Fresh Start, Inc. v.
Los Angeles County Office of Education (2013) 57 Cal.4th 197, 216 (Today’s Fresh
Start).) A high risk of actual bias has been found where a decision-maker has a direct
personal or institutional financial interest in the outcome of a case. (Id. at pp. 216–217.)
That is the standard provided for in the statute and medical staff bylaws.
Appellant cites Haas v. County of San Bernardino (2002) 27 Cal.4th 1017 (Haas)
and Yaqub v. Salinas Valley Memorial Healthcare System (2004) 122 Cal.App.4th 474(Yaqub) for the proposition that, to be disqualifying, a financial interest need not be a
9
direct interest in the outcome of the case. In Haas, the court condemned a county’s
unilateral ad hoc selection and payment of hearing officers on the ground that they gave
officers “an impermissible financial interest in the outcome of the cases they are
appointed to decide, because the officers’ prospects for obtaining future ad hoc
appointments depend solely on the county’s goodwill and because the county, in making
such appointments, may prefer those officers whose past decisions have favored the
county.” (Id. at p. 1020.)
Yaqub, supra, 122 Cal.App.4th 474 extended the Haas holding to the revocation
of a physician’s hospital privileges through a peer review proceeding. The hearing
officer in Yaqub was unilaterally selected by the hospital. He had served as a mediator,
arbitrator, and hearing officer in cases involving the hospital, including the physician’s
suspension hearing, and could potentially be appointed to preside over other hearings in
the future. (Id. at pp. 484, 485.) The Yaqub court acknowledged that these facts brought
the hearing officer’s appointment “within the ambit of Haas.” (Id. at p. 484.) But it also
suggested there was no evidence “of a direct financial interest in the outcome of the
case.” (Id. at p. 485) That suggestion was inconsistent with Haas where the court
expressly concluded that the appointment and payment procedure, implicitly offering the
possibility of future employment as an adjudicator in exchange for favorable decisions,
created “an impermissible financial interest in the outcome of the cases . . . .” (Haas,
supra, 27 Cal.4th at p. 1020.)
The court in Yaqub, supra, 122 Cal.App.4th 474 also noted that the hearing officer
previously had served on the board of governors of a foundation that raised funds for the
hospital, and that the board of governors was elected by the hospital’s board of directors.
(Id. at p. 484.) It is doubtful that, by themselves, these facts would have brought Yaqub
within the scope of Haas since Haas held only that “an adjudicator whose future work in
that capacity depends entirely on the goodwill of the party paying the adjudicator’s fee”
had a “direct, personal, and substantial” financial interest. (Haas, supra, 27 Cal.4th at
p. 1032.) The Haas court expressly distinguished “speculative claims of financial
interest,” such as the one rejected in Gai v. City of Selma (1998) 68 Cal.App.4th 213,
10
228, where the sale of gasoline to a city by a member of the city personnel commission
was unrelated to the disciplinary matter before the commission. (See Haas, at p. 1032.)
Thus, Haas and Yaqub do not stand for the broad proposition that a decision-maker’s
financial ties to a party in the proceeding is per se disqualifying.
Here, three of the four JRC members were active members of respondent’s
medical staff. Each practiced within a medical group that contracted with more than one
hospital. Dr. Lev was head of respondent’s neonatology intensive care unit. Dr. Mynatt
was an orthopedic surgeon, 80 percent of whose practice was at the hospital, as was most
of Dr. Triantafyllos’ radiation oncology practice. Appellant objected that these three
members’ substantial ties to respondent constituted disqualifying financial interests.
By definition, members of a hospital’s medical staff are contracted to provide
services at the hospital. (See § 805, subd. (a)(4) [“‘Staff privileges’ means any
arrangement under which a licentiate is allowed to practice in or provide care for patients
in a health facility. Those arrangements shall include, but are not limited to, full staff
privileges, active staff privileges . . . , and contractual arrangements to provide
professional services. . . .”].) Appellant’s objection that the active medical staff members
were disqualified, in essence, by their staff privileges is exceedingly broad and would
have required the general disqualification of active medical staff members in
contravention of the medical staff bylaws, which allowed their service on the JRC,
provided they had not participated in the case and had no direct financial interest in its
outcome. (Bylaws, art. VIII, § C(8).)
Dr. Getzen, the fourth JRC member, was the only cardiologist on the panel. He
was not a member of respondent’s medical staff, and appellant, somewhat inconsistently,
objected to him on that basis. First Dr. Getzen and then, through the course of the
protracted proceeding, all JRC members were compensated for their services at fixed
rates and “without regard to the outcome of the hearing.” There is no evidence that the
appointment of active staff members to the JRC or the compensation of panel members
held the potential of their future work as adjudicators if they rendered a decision
favorable to respondent in this case. To the contrary, their compensation was expressly
11
not tied to the outcome of the case. Neither Haas, nor Yaqub may be read as supporting
disqualification under the circumstances presented in this case.
B. Dr. Mynatt’s Additional Conflicts of Interest
Appellant raises additional fair procedure claims as to Dr. Mynatt’s
perceived conflicts of interest stemming from the economic relationship between the
Arthritis Institute, the medical group of which Dr. Mynatt was a member, and
respondent’s one-time owner, Tenet. Specifically, appellant claims that, during the
pendency of the JRC proceeding, he was evicted from his office to make room for the
Arthritis Institute, and the Arthritis Institute contemplated suing Tenet. We address
appellant’s claims in turn.
1. Voir Dire
Appellant argues the hearing officer improperly limited the questioning of Dr.
Mynatt about his economic relationship with Tenet. Under both state law and the Bylaws
(art. VIII, § C(11)(a)(5)), appellant had the right to “a reasonable opportunity” to voir
dire the panel members. (§ 809.2, subd. (c); see Lasko, supra, 180 Cal.App.3d at p. 530
[doctor was deprived of fair procedure when he was given no opportunity to question
members of hospital’s hearing committee about possible bias].) He was afforded that
opportunity during the voir dire in May 2003.
Dr. Mynatt testified he practiced independently under the umbrella of the Arthritis
Institute, a medical group that had 15 other members. According to Dr. Mynatt, the
Arthritis Institute was “a joint program” with Tenet, which at the time owned the hospital
and provided the Arthritis Institute’s members with office space. Dr. Mynatt did not
know whether the Arthritis Institute was a partnership or a corporation, and he thought he
was not qualified to answer whether the joint program with Tenet qualified as a “joint
venture.” At one point during this portion of the voir dire, Dr. Mynatt told appellant’s
counsel, “You just made a statement. Would you like to ask me a question?” At another,
he quipped, “Asked and answered.” These comments caused counsel to argue that he did
not need to ask any more questions because Dr. Mynatt was uncooperative and would not
be impartial. The hearing officer disagreed, concluding Dr. Mynatt had answered
12
counsel’s question about his understanding of the relationship between the Arthritis
Institute and Tenet.
The voir dire resumed, and Dr. Mynatt testified that the Arthritis Institute did not
pay for office space, nor did Tenet compensate its members for any services they
provided, other than funding research at one of the Arthritis Institute’s other locations.
At the end of the voir dire, appellant’s attorney suggested Dr. Mynatt would not be
impartial because he was “involved in a program in which Tenet is the . . . joint partner.”
The hearing officer sustained respondent’s objection that Tenet was not a party to the
proceeding.
The record does not support appellant’s claim that the hearing officer improperly
limited the voir dire. To the contrary, the hearing officer intervened at a point when
appellant’s attorney wanted to end the voir dire prematurely. The attorney resumed
Dr. Mynatt’s voir dire after the hearing officer’s intervention, and ended it on his own
accord after eliciting further answers from Dr. Mynatt. There is no support for
appellant’s speculative suggestion that Dr. Mynatt’s answers were “evasive,” or that he
knew more about the relationship between the Arthritis Institute and Tenet than he
disclosed. Nor was Dr. Mynatt the only panel member who had difficulty answering this
line of questions. Dr. Triantafyllos also stated he did not completely understand the
nature of his medical group’s contract with respondent.
2. Exclusion of Evidence
Appellant argues the hearing officer excluded evidence of appellant’s eviction
from a nearby medical office building to make room for the Arthritis Institute. The
argument is based on the exclusion of five exhibits, which were offered in September
2003 as evidence of the Governing Board’s retaliation against appellant. The excluded
exhibits consist of appellant’s month-to-month lease with Hollywood Presbyterian
Medical Office Building I (HPMOB); two 30-day notices to terminate, dated November
2002 and May 2003; HPMOB’s June 2003 unlawful detainer complaint against appellant;
and a floor plan. Although appellant’s counsel stated that Tenet wanted to “move or
expand the Arthritis Clinic,” none of the proffered exhibits mentioned the Arthritis
13
Institute. Nor did appellant’s counsel purport to offer those exhibits as evidence of Dr.
Mynatt’s conflict of interest, and we have been cited to no place in the record of the JRC
hearing where appellant argued that his eviction was evidence of Dr. Mynatt’s bias.
Appellant cites to the complaint for intentional interference with a prospective
economic advantage that Tenet filed against him in June 2003. The complaint alleged
Tenet had acquired an option to lease suites in the building where appellant’s office was
located and sought to exercise that option to “establish an Arthirtis Institute to serve the
needs of the community.” It also alleged appellant’s refusal to vacate his office resulted
in “lost profits from the operation of the Arthritis Institute.”
The complaint was not included among the exhibits proffered at the JRC hearing.
The trial court originally took judicial notice of it, and of our decision on appellant’s
cross-complaint against Tenet, in the context of respondent’s argument that appellant was
collaterally estopped from alleging retaliation. (See El-Attar v. Tenet HealthSystem QA,
Inc., July 19, 2006, No. B182251 [nonpub. opn.].)5 Appellant in turn, for the first time,
argued that Tenet’s lawsuit against him benefitted Dr. Mynatt, who had a “business
venture” with Tenet, and that the hearing officer should have required a full disclosure of
that venture.
At the hearing on the petition, appellant persuaded the court to admit the Tenet
complaint against him into evidence because respondent had cited to the complaint, and
the court had agreed to take judicial notice of that pleading. Respondent objected that it
had referenced the lawsuit as part of its legal argument on collateral estoppel, rather than
as evidence. Although respondent does not renew its objection on appeal, it is
questionable whether the belated inclusion of the Tenet complaint in the administrative
record was justified. The complaint could have been but was not offered into evidence at
5
In El-Attar v. Tenet HealthSystem QA, Inc., supra, we found insufficient
evidence that appellant had been retaliated against because of his criticism of hospital
practices, or because of the petition for removal of respondent’s chief executive officer
which appellant, along with other medical staff members, circulated in the fall of 2002.
The petition and a summary of appellant’s complaints about hospital practices were
among the exhibits excluded at the JRC hearing.
14
the JRC hearing. (See Code Civ. Pro., § 1094.5, subd. (e) [court may admit improperly
excluded evidence or evidence that could not have been produced through reasonable
diligence during administrative hearing].) Any claim that the hearing officer should have
required full disclosure of Dr. Mynatt’s potential bias based on appellant’s eviction from
his office was forfeited because appellant did not raise the issue during the JRC hearing.
(See Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 892 fn. 6.)
On its merits, appellant’s claim that Tenet’s lawsuit against him is evidence of
Dr. Mynatt’s bias is tenuous at best. There is no evidence that Dr. Mynatt would have
directly benefitted from appellant’s loss of his privileges at the hospital, which was
unrelated to appellant’s eviction under a lease with another entity. Moreover, appellant’s
assumption that Dr. Mynatt was “Tenet’s joint venturer in the Arthritis Institute,” and
thus a beneficiary of Tenet’s lawsuit against appellant for lost profits, is speculative.
Neither Dr. Mynatt’s testimony during the May 2003 voir dire, nor the Tenet complaint
indicates the existence of a joint venture between Dr. Mynatt and Tenet. Contrary to
appellant’s contention, the trial court made no such finding.
There also is no evidence Dr. Mynatt himself competed with appellant for office
space. (See Today’s Fresh Start, supra, 57 Cal.4th at pp. 216–217 [business competitor
cannot be adjudicator].) Nor is there any indication that the Arthritis Institute or
Dr. Mynatt was directly involved in Tenet’s lawsuit against appellant or had any notice of
it. (See Lasko, supra, 180 Cal.App.3d at p. 529 [decision-maker may not be “enmeshed
in other matters involving the person whose rights he is determining”]; see e.g. Johnson
v. Mississippi (1971) 403 U.S. 212, 215 [judge against whom criminal defendant had won
civil rights case immediately prior to adjudication of contempt was “so enmeshed” in
matters involving defendant as to merit disqualification for bias].)
To sum up, since appellant did not raise the relevance of his eviction to the issue
of Dr. Mynatt’s bias at the JRC hearing, he may not now be heard to complain that he
was not given an opportunity to voir dire Dr. Mynatt about it, and it would be speculative
to conclude on this record that any additional voir dire would have revealed facts
requiring Dr. Mynatt’s disqualification.
15
3. Recusal
In mid-August 2005, the hearing officer sent out a letter advising the parties that,
at the outset of deliberations, Dr. Mynatt had recused himself because “he could not be
certain that he would not be biased against Tenet . . . in light of a recently developed
conflict of interest and adversarial relationship with that entity.” The remaining three
members declined to deliberate in Dr. Mynatt’s absence. Ten days later, the hearing
officer advised that all JRC members had “reexamined their prior positions” and were
willing to deliberate. The hearing officer believed “it would be an injustice to all
concerned” to abort the JRC proceeding short of a decision. In response to appellant’s
concerns about Dr. Mynatt’s change of position, the hearing officer stated only that all
JRC members had told him they were unbiased. He did not explain how Dr. Mynatt had
cleared his alleged conflict of interest and did nothing to allay appellant’s express
concern that Dr. Mynatt had been pressured or induced to change his position.
The trial court granted appellant’s discovery request and augmented the record
with statements by the hearing officer and Dr. Mynatt. According to the hearing officer’s
statement, Dr. Mynatt had recused himself because his medical group was contemplating
litigation stemming from its contractual relationship with Tenet. Dr. Mynatt was later
advised by counsel that Tenet no longer owned the hospital, which meant that the
potential litigation against Tenet was not against respondent’s current owner. In his
statement, Dr. Mynatt advised that his return to the JRC was “absolutely not” the result of
any contact or influence by Tenet, and that Tenet did not offer anything in connection
with any costs or damages arising out of his participation in the JRC proceeding.
Dr. Mynatt also stated that since Tenet resolved its outstanding balance to the Arthritis
Institute, “there was no litigation.”
Appellant argues the reconstitution of the panel after Dr. Mynatt’s recusal violated
fair procedure because the hearing officer conducted what amounted to a secret voir dire
with the returning panel members. (See Rosenblit, supra, 231 Cal.App.3d at pp. 1448–
1449 [secret voir dire of panel members deprived physician of fair procedure where panel
included members with potential conflicts of interest].) We agree that the hearing officer
16
should have followed up on appellant’s request for an explanation about Dr. Mynatt’s
change of position. But the error did not prejudice appellant because the evidence
produced in response to his discovery motion does not indicate that additional voir dire
would have exposed “facts that would require disqualification of individuals on the
panel.” (Hackethal v. Cal. Medical Ass’n. (1982) 138 Cal.App.3d 435, 443.)
“‘“Bias and prejudice are not implied and must be clearly established. A party’s
unilateral perception of bias cannot alone service as a basis for disqualification.
Prejudice must be shown against a particular party and it must be significant enough to
impair the adjudicator’s impartiality. The challenge to the fairness of the adjudicator
must set forth concrete facts demonstrating bias or prejudice.”’” (Linney v. Turpen
(1996) 42 Cal.App.4th 763, 773.) Appellant’s insistence that Dr. Mynatt may have been
pressured or induced to return to the panel does not demonstrate bias because it is
speculative and contrary to the evidence produced in the trial court.
Appellant asks that we take judicial notice of the statement of interested persons
respondent filed in the Supreme Court, which lists Tenet as respondent’s owner “at the
time of the events being litigated.” Even were we to take judicial notice of the existence
of that document in the court file, we may not take judicial notice of the truth of any
hearsay statements it contains. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.)
Appellant also claims the trial court incorrectly denied his request for discovery of
Tenet’s obligation to indemnify respondent’s new owner for any liability arising out of
the proceedings against appellant. This conclusory claim, raised for the first time in the
reply brief, is forfeited. (See Benach v. County of Los Angeles, supra, 149 Cal.App.4th at
p. 852; Cold Creek Compost, Inc. v. State Farm Fire & Casualty Co. (2007) 156
Cal.App.4th 1469, 1486.) Moreover, any continuing interest Tenet may have in this case
is relevant only to Dr. Mynatt’s concern that he might be biased against Tenet. That
subjective concern does not establish “an objective, intolerably high risk of actual bias”
against appellant. (See Today’s Fresh Start, supra, 57 Cal.4th at p. 216; Linney v.
Turpen, supra, 42 Cal.App.4th at p. 773.)
17
Appellant also contends Dr. Mynatt should not have been allowed to return to the
panel after recusing himself. Appellant cites Geldermann, Inc. v. Bruner (1991) 229
Cal.App.3d 662, where a trial judge filed a statement of decision and a judgment after
recusing himself, in violation of the procedural requirements of the judicial
disqualification statutes. (Id. at p. 666, citing Code Civ. Pro., §§ 170.3 & 170.4.) The
application of these statutes to administrative proceedings has been rejected because “to
do so would obliterate the distinction between judicial and administrative proceedings
carefully articulated by the courts for due process purposes.” (Gai v. City of Selma,
supra, 68 Cal.App.4th at pp. 232–233; see also Code Civ. Proc., § 170.5, subd. (a)
[“‘Judge’ means judges of the superior courts, and court commissioners and referees”].)
Appellant relies on dictum in Yaqub, supra, 122 Cal.App.4th 474, 486 that “[p]rinciples
applicable to judicial officers in court proceedings provide comparable guidance” to the
discussion of bias in an administrative proceeding in Haas, supra, 27 Cal.4th 1017. The
dictum is not authority for engrafting the procedural requirements of the judicial
disqualification statutes onto administrative or hospital peer review proceedings.
Moreover, since a violation of the judicial disqualification statutes does not
necessarily violate due process, it cannot be said to violate fair procedure. In People v.
Freeman (2010) 47 Cal.4th 993, the court rejected the argument that trial before a judge
whose earlier recusal had been based on an unfounded appearance of bias violated the
defendant’s due process right to an impartial judge. The court explained that an
objectively high probability of bias, rather than mere appearance, was required for a due
process violation. (Id. at p. 1005.) Appellant characterizes Dr. Mynatt’s recusal from
and return to the JRC as having an “appearance of impropriety” and claims that
Dr. Mynatt’s “financial entanglements with the Hospital created a greater risk of
unfairness” to appellant than the appearance of bias in People v. Freeman. As we have
explained, nothing supports appellant’s conjecture that Dr. Mynatt’s decision to return to
the panel was financially induced. Nor does Dr. Mynatt’s subjective belief that he might
be biased against Tenet if Tenet still owned respondent create an objective high risk of
18
unfairness towards appellant. No objective high probability of bias against appellant
existed here.
In a related argument, appellant argues the hearing officer did not have authority
to reconstitute the JRC after it decided to disband. He cites Mileikowsky v. West Hills
Hospital and Medical Center (2009) 45 Cal.4th 1259 (Mileikowsky). There, the court
held that the hearing officer was not authorized to dismiss a peer review hearing as a
terminating sanction for a physician’s failure to comply with discovery orders. (Id. at
pp. 1265–1266.) The court reasoned that “by dismissing the proceedings before the
hearing was convened the officer prevented the reviewing panel from considering the
evidence and eliminated the reviewing panel’s role in the decisionmaking process.” (Id.
at p. 1269.) Not only was the authority of the hearing officer to issue a terminating
sanction not envisioned in the statutory scheme or the hospital bylaws, but the exercise of
that authority contravened the goals of the statutory peer review process. The court
explained that “a hearing officer who prevents the reviewing panel from conducting its
review ‘votes’ by ensuring that the peer review committee’s recommendation will be the
final decision.” (Id. at p. 1271.)
The court’s decision in Mileikowsky, supra, 45 Cal.4th 1259, rested on the notion
that the hearing officer’s decision to terminate the proceeding effectively commandeered
the panel’s adjudicatory function. It does not aid appellant here, where the opposite
occurred. Rather than precluding the panel from performing its function, the hearing
officer exercised his authority to rule on matters of law and procedure in order to ensure
that the JRC was able to issue a decision. (Bylaws, art. VIII § C(11)(c).) The hearing
officer did not usurp the authority of the panel members; on the contrary, the record
shows he acted in accordance with the panel’s wishes. Since the hearing officer did not
appoint new members to the panel or start a new proceeding, he did not usurp MEC’s
authority to appoint panel members under the Bylaws (art. VIII, § C(8)). There also is no
indication that the hearing officer knew in advance what the panel’s decision would be,
and it cannot reasonably be said that by allowing the panel to reach a decision he
“advocated” or “voted” for respondent in violation of section 809. 2, subdivision (b).
19
Appellant’s belief that absent a JRC decision he would have retained his staff privileges,
rather than be subject to another hearing, is unfounded.
We conclude that none of the procedural irregularities or deviations from the
medical staff bylaws in this case was material, or evidenced bad intent. Appellant was
afforded a fair hearing.
II
Appellant argues that respondent’s decision is not supported by substantial
evidence. “[O]ur function in this context is the same as the superior court’s, which was
the same as [that of] the hospital’s governing body.” (Hongsathavij v. Queen of Angels
etc. Medical Center (1998) 62 Cal.App.4th 1123, 1137 (Hongsathavij).) We consider
whether the governing body applied the proper standard of review to the JRC’s findings,
and whether the final decision is supported by substantial evidence. (Id. at p. 1136.)
Here, the Bylaws (art. VIII, § C(12)(f)(1)) required that the JRC’s decision be reviewed
for substantial evidence, and that is the standard the appeal board applied in the final
decision, which the Governing Board approved. The final decision incorporated by
reference the JRC’s findings and concluded they were supported by substantial evidence.
We must uphold that decision “unless the findings are so lacking in evidentiary support
as to render them unreasonable. [Citations.]” (Id. at p. 1137.)
Appellant argues the JRC’s findings violated fair procedure because they were
stated in a conclusory fashion. He cites Rosenblit, supra, 231 Cal.App.3d 1434. There,
the hearing panel concluded the physician “had not shown that his suspension based on
his ‘exercise of poor clinical judgment was made unreasonably, not sustained by the
evidence, or unfounded. [Sic.]’” (Id. at p. 1440.) The court held that this “conclusory
verdict,” lacking specific findings or description of how the physician endangered his
patients, was the culmination of an unfair proceeding, during which the physician “was
kept in the dark about the specific charges made against him, of his asserted opportunity
to obtain copies of the charts, and finally of the basis upon which the hearing panel
decided the issues adversely to him.” (Id. at pp. 1447–1448.) Since we have determined
20
that appellant had adequate notice of the charges against him and was afforded a fair
hearing, Rosenblit is distinguishable.
To pass review in an administrative mandate proceeding, a decision must contain
“legally relevant sub-conclusions” and must point out the “analytic route the
administrative agency traveled from evidence to action.” (Topanga Association for a
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515–516, citing Code
Civ. Proc., § 1094.5, subd. (b) [abuse of discretion exists when administrative decision is
not supported by findings or findings are nor supported by evidence].) Findings in this
context “are generally permitted considerable latitude with regard to their precision,
formality, and matters reasonably implied therein,” so long as they enable the parties and
the reviewing court to determine the basis for the decision. (Sierra Club v. California
Coastal Com. (1993) 19 Cal.App.4th 547, 557.) The findings may properly incorporate
matters by reference and omissions may be filled by “such relevant references as are
available in the record. [Citation.]” (Craik v. County of Santa Cruz (2000) 81
Cal.App.4th 880, 884.)
The JRC’s findings contain specific sub-conclusions regarding each charge.
Although the findings are not supported with specific references to the record, peer
review decisions making only global references have been affirmed, so long as the
findings sufficiently apprised the parties and the court of the basis for the decision. (See,
e.g., Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1105–
1106, 1112; Gaenslen v. Board of Directors (1985) 185 Cal.App.3d 563, 573.) That is
the case here. The charges against appellant are cited in the JRC’s decision and the
complete first amended notice of charges is attached to the decision. The notice lists the
specific medical records on which the allegations were based, and the parties agree what
medical records were before the JRC. 6 The JRC’s findings can be traced to the medical
records and testimony with reasonable certainty.
6
We designate the relevant records by appellant’s case number and the patient’s
account (PA) number listed in the index to medical charts, on which both parties rely.
21
The JRC sustained the charges alleging patterns of substandard practice and
documentation, and unprofessional conduct. It did not sustain the charges for overuse of
hospital services and failure to inform patients about the risk of procedures. The JRC
declined to make a finding on the charge that appellant had been subject to a previous
investigation. We next consider whether substantial evidence supports the findings on
each of the three sustained charges against appellant.
In doing so, we are guided by several well-established principles. Findings may
not be supported by evidence that is inherently improbable or irrelevant to the issues, or
by expert testimony “based upon conclusions or assumptions not supported by evidence
in the record.” (Hongsathavij, supra, 62 Cal.App.4th at p. 1137.) Additionally, an
expert’s opinion that does not include “a reasoned explanation of why the underlying
facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is
worth no more than the reasons and facts on which it is based.” (Bushling v. Fremont
Medical Center (2004) 117 Cal.App.4th 493, 510.) Under the substantial evidence test,
“it is not the function of reviewing courts to resolve differences of medical judgment.”
(Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 154; see also Bonner v.
Sisters of Providence Corp. (1987) 194 Cal.App.3d 437, 447–448 [“[c]ourts are ill-
equipped to assess the judgment of qualified physicians on matters requiring advanced
study and extensive training in medical specialties”].) Accordingly, we must consider the
evidence in the light most favorable to respondent, giving it the benefit of every
reasonable inference and resolving conflicts in support of the final decision. (Huang v.
Board of Directors (1990) 220 Cal.App.3d 1286, 1294.)
A. Pattern of Dangerous, Unacceptable, Substandard Practice
Charge I states that appellant demonstrated “a pattern of dangerous, unacceptable,
substandard practice” evidenced by his “failure to recognize serious medical conditions,
failure to intervene as the attending physician in order to postpone a non-emergent
procedure on a high risk patient, improper or inadequate diagnoses, improper clinical
management of patients and/or by performing various tests, including but not limited to
cardiac catheterizations without patient specific indicators or adequate documentation of
22
clinical findings to justify the necessity of the procedure.” The charge alleged that his
substandard practice either caused or had the potential to cause harm to patients as
illustrated by a list of specific allegations about 23 medical records and one incident of
unprofessional conduct. Also included in this charge were references to the NMA and
Hirsch audit reports, and to charge III, which alleged appellant engaged in a pattern of
substandard documentation.
The JRC found that appellant frequently relied on “test reports prepared by
others—X-rays, EKGs, echocardiograms, thalium [sic.] stress tests—without personally
reviewing the actual tests himself” and that this practice was substandard, posing “serious
potential harm to patients.” The JRC found that appellant failed to investigate
“significant disparities between [his patients’] physical condition and reports of their
tests, e.g. echocardiograms, thalium [sic.] stress tests, and EKGs.” The JRC also found
appellant’s documentation frequently failed “to demonstrate patient-specific indications
for tests which he ordered or performed,” and was “woefully inadequate and
substandard.” The JRC cited appellant’s “inappropriate conduct toward Hospital staff” as
an additional reason for sustaining the charge of dangerous substandard practice because
it had “the potential to disrupt proper patient care.”
Appellant argues the JRC failed to make a finding on the allegation of dangerous
practice, particularly with regard to case nos. 1 and 2. In case no. 1 (PA# 1494740),
appellant was alleged to have cleared a high-risk patient for non-emergency urological
surgery, after the patient developed blood in his urine as a result of pulling on his
catheter. In case no. 2 (PA#1084224), appellant was alleged to have incorrectly
diagnosed a preterminal patient with dehydration, to have incorrectly treated her, and to
have failed to recognize a heart attack. These were the only cases in which appellant was
alleged to have caused actual harm to a patient or to have hastened a patient’s death,
rather than just exposing the patient to risk of harm, as was alleged in other cases.
Appellant is correct that the JRC did not find he had actually harmed any patient,
which indicates that it did not base its findings on the allegations in case nos. 1 and 2.
But he cites no authority that a finding of substandard or dangerous practice must be
23
based on actual harm as opposed to risk of harm or inadequate care. “The primary
purpose of the peer review process is to protect the health and welfare of the people of
California by excluding through the peer review mechanism ‘those healing arts
practitioners who provide substandard care or who engage in professional misconduct.’
(§ 809, subd. (a)(6).)” (Mileikowsky, supra, 45 Cal.4th at p. 1267.) A physician’s
privileges may be terminated for conduct “reasonably likely to be detrimental to patient
safety or to the delivery of patient care.” (§ 805, subd. (a)(6).) Moreover, the use of
“and/or” in the allegations on this charge suggests they were stated in the alternative, so
that one or more allegations could sustain the charge.
Appellant argues the JRC’s findings that he frequently relied on test reports
without personally reviewing the tests or investigating significant disparities between test
results and the patients’ physical condition were not responsive to the allegations in the
charge, and deprived him of an opportunity to present a defense. This new fair procedure
argument, raised for the first time in the reply brief, is untimely and may be deemed
forfeited. (See Cold Creek Compost, Inc. v. State Farm Fire & Casualty Co., supra, 156
Cal.App.4th at p. 1486.) It also is factually incorrect since discrepancies between test
results, and between the patient’s physical condition and test results, were present in
many of the medical records at issue. They were discussed in the NMA and Hirsch audit
reports and were subsumed in the broad allegations about appellant’s “failure to
recognize serious medical conditions, . . . improper or inadequate diagnoses, improper
clinical management of patients,” as well as the allegation that he performed tests without
patient-specific indicators. The JRC’s narrowly worded findings suggest only that charge
I was sustained on a limited basis, not that it was sustained on grounds of which appellant
had no notice.
Because of the JRC’s limited findings, at least some of the evidence on which
respondent relies appears to be irrelevant. In addition to case nos. 1 and 2, case no. 4
(PA#945030) does not fit those findings. There, appellant allegedly ordered unnecessary
blood transfusions for a dehydrated 89-year-old patient with chronic medical problems,
as well as multiple unnecessary consults that resulted in tests of “marginal utility” and an
24
unnecessarily long hospital stay. The JRC did not make a broad finding with regard to
the allegation of improper clinical management, or any specific finding with regard to
unnecessary treatment, consultations, or hospital stay, and it specifically declined to find
that appellant overused hospital services, including consultations, treatments, procedures,
and prolonged hospital stays.
Nonetheless, the vast majority of the remaining evidence supports the JRC’s
findings that appellant frequently relied on test reports without personally reviewing the
actual tests or investigating the discrepancy between test results and the patient’s
condition, and that his documentation was substandard.
A discrepancy between x-rays existed in case no. 1, where post-operatively, an x-
ray indicated that the patient’s heart remained “enlarged with pulmonary congestion,
unchanged since the preceding” x-ray, which, however, had been read as clear.
Appellant testified that the patient’s condition was good because the chest x-ray was
clear. The evidence supports the JRC’s finding that appellant relied on test reports
prepared by others without reviewing the actual tests even though the reports contained
obvious discrepancies.
In case no. 6 (PA#1112295, PA#1196782, PA#1250035, PA#1338153),
appellant’s illegible notes and inadequate documentation of a patient’s repeat
hospitalizations for abdominal pain did not make clear whether repeat abdominal tests
were indicated based on the patient’s history and clinical findings, which affected the
continuity of patient care. Appellant’s insistence that the dates on two summaries in the
record were transposed through no fault of his own misses this larger issue.
Case nos. 8, 9, and 10 (PA#1680834, PA#2418903, PA#2456754) involved one
patient’s successive admissions. During the patient’s first admission for a heart attack,
appellant apparently relied on an incorrect interpretation of her cardiac rhythm even
though it was his responsibility to read the EKG. On her second admission, the patient
was diagnosed with mitral and aortic stenosis that, according to respondent’s expert, was
already present and could have been detected through physical examination or a correct
reading of an echocardiogram taken during the first admission. There also was an
25
unusually gross, as opposed to the commonly minor, discrepancy between gradients on
an echocardiogram and a cardiac catheterization during the second admission, and the
stenosis was incorrectly reported as mild rather than severe.
Although the actual echocardiograms were not in evidence, respondent’s expert
did not testify that viewing them was essential to his opinion. The thrust of that opinion
was that the patient’s condition could and should have been diagnosed during the first
admission, and that it was appellant’s responsibility to review the echocardiograms in
order to see whether the technician correctly interpreted them. The expert also opined
that a repeat catheterization on the patient was not indicated since a recent catheterization
had shown no significant coronary disease. Based on these and other irregularities, the
expert’s opinion was that the treatment during the first admission and the documentation
during the second were below the standard of care. Also relevant to the JRC’s findings
was evidence of poor documentation during the third admission and a repeat
echocardiogram that did not appear to be indicated by a change in the patient’s condition.
On the other hand, appellant’s allegedly questionable decision to discontinue one of the
patient’s medications appears to be irrelevant to the JRC’s narrow findings.
The rest of the cases reviewed by the JRC all involved cardiac catheterization, an
invasive diagnostic test in which a catheter is inserted into a blood vessel and directed to
the heart to allow the examination of coronary arteries through, for instance, an
angiogram. Catheterization is often preceded by a non-invasive stress test, in which the
coronary arteries are viewed while the patient is at rest and on a treadmill. The author of
the Hirsh report, who was one of respondent’s experts at the hearing, noted “[a]n unusual
number of cardiac catheterization angiograms which were unremarkable or negative,” but
which “were preceded by reportedly positive nuclear stress testing.” He recommended
that “quality control mechanisms be instituted for interpretation of these thallium stress
tests.” The expert estimated that only seven out of 16 randomly selected catheterizations
performed by appellant were justified and nine were normal or indicating low-grade
disease, which, while not substandard, was “highly unusual.” In light of the pattern of
positive stress tests preceding unremarkable or normal catheterizations, the expert opined
26
it was incumbent upon appellant to carefully review such tests before proceeding with
catheterizations. Additionally, as co-director of the catheterization laboratory, appellant
was responsible for monitoring the correlation between the rates of positive stress tests
and normal catheterizations.
Appellant contends that the evidence of “unnecessary catheterizations” is
irrelevant since the JRC did not make such a finding. But the JRC found appellant’s
records “frequently failed to demonstrate patient-specific indications for tests which he
ordered or performed.” The finding corresponds to the allegation that he performed
“tests, including . . . cardiac catheterizations without patient specific indicators or
adequate documentation of clinical findings to justify the necessity of the procedure.”
The experts’ disagreement about the necessity of catheterization in some cases goes to
the credibility and weight of their opinions, matters which we do not redetermine on
appeal. Appellant’s often conclusory claims that the opinions of respondent’s experts on
the subject were not supported by the medical record or medical authority are not
persuasive.
In case no. 12 (PA#883417), respondent’s expert explained that an angiogram
performed after a questionable stress test result showed no heart disease in a patient with
abdominal pain who was later diagnosed with acute pancreatitis. The expert identified
this case as one of the pattern of catheterization tests performed based on questionable
stress tests. The case also was one where tests were done on minimal indications. There
was no evidence the patient had complained of chest pain upon admission, and
appellant’s later reports that the patient had chest pain appeared aberrant.
Catheterizations after questionable stress tests also were at issue in case nos. 17 and 23
(PA#1406256, PA#1604384). The concern in the latter case was that the minimal
notation “stress test +” did not make clear whether appellant had reviewed the results of
the stress test, viewed the test itself, or discussed it with the radiologist. In case no. 18
(PA#1432125), even appellant’s expert conceded a catheterization on a patient with chest
pain of pulmonary origin was “a slightly aggressive diagnostic approach.”
27
Appellant is correct that in case no. 20 (PA#1266829), respondent’s expert
retreated from his original opinion that the catheterization was not justified in light of
evidence in the medical record of continuing complaints of chest pain, and stated
appellant could have elected to do it under the relevant guidelines. But in case no. 13
(PA#1680234), the expert explained he did not consider a nurse’s note “C-P still on Ntg”
to be an adequate record of continuing chest pain two days after admission because “[i]t
would be unusual to be on nitroglycerine drip for that period of time,” and the need for it
should have been noted in the progress report. The expert considered catheterization to
be unjustified based on the patient’s recorded condition, even though the relevant
guidelines may have allowed it, because the tests did not show an acute exacerbation of
the patient’s cardiac disease. Similarly, in case no. 21 (PA#1463446), the expert opined
that catheterization of a patient hospitalized with abdominal pain, hypertension and end-
stage renal disease was unjustified because her EKG was unremarkable, and the rest of
the medical record did not corroborate appellant’s report that she complained of mild
chest pain. The expert explained his reasoning, and we cannot say that his opinion has no
evidentiary value, especially considering the repeated presence of vague, uncorroborated
statements of chest pain in several of appellant’s catheterization cases. In another such
case, case no. 11 (PA#1058363, PA#1174789), the medical record lacked detail about the
patient’s reported ischemic heart disease and positive outpatient stress test, and did not
support the statement in the discharge summary that the patient had been admitted for
chest pain.
Additional documentation problems were identified in many cases. In case no. 3
(PA#1418769), there was a discrepancy between a post-catheterization progress note
stating, “No complications. Full report to follow,” and the actual report, which revealed
the patient had gone into a complete heart block during the procedure. Although
appellant was incorrectly charged with a problematic diagnosis of congestive heart failure
and reading of an echocardiogram as showing severe aortic stenosis in case no. 5
(PA#528994), both of which were done by another doctor, appellant contributed to the
problem by relying on them, despite the absence of supporting data and clinical findings.
28
Appellant failed to document the results of an important echocardiogram in case no. 14
(PA#919683), and in case no. 15 (PA#1477170), he incorrectly documented that a stress
test revealed a new, rather than existing defect, making the patient’s condition appear
more severe than it was.
Appellant testified that catheterization on the patient in case no. 19 (PA#1409840)
was justified because the patient had unstable angina, and the angiogram was abnormal
for the same reason. Other than a brief mention of a history of ischemic heart disease and
angina, the medical record apparently included no documentation of appellant’s
conclusion that the patient had unstable angina. In case no. 22 (PA#1156870),
catheterization was performed on a patient with a history of heart disease and coronary
bypass grafting. The medical record included a notation of a “recent angiogram which
showed blocked arteries.” Respondent’s expert faulted appellant for not obtaining the
results of the angiogram and documenting them before deciding to proceed with another
one. Appellant testified he did not think the patient had undergone catheterization
recently, contrary to the notation in the record.
In a number of these cases, there was expert testimony that appellant’s
documentation or care was substandard. One of respondent’s experts explained that
performing catheterization without adequate indication exposes the patient to
unnecessary physical and mental discomfort, increased costs, and risk of complications,
such as bleeding, infection, arrhythmia and others. In his testimony at the hearing,
appellant often went beyond the medical records to justify his unrecorded actions,
reasoning, and conclusions, or to harmonize conflicts in the evidence. The JRC was not
required to accept his testimony, and under the substantial evidence standard of review,
we must resolve conflicts and draw inferences in favor of respondent’s decision. (Huang
v. Board of Directors, supra, 220 Cal.App.3d at p. 1294.) The weight of the evidence
supports the JRC’s findings that appellant often failed to investigate discrepancies
between test results, clinical findings, and the patients’ condition, and to adequately
document them, thus potentially affecting the continuity of patient care and exposing
29
patients to the unnecessary risk of undergoing invasive tests not clearly indicated by the
medical record.
Also alleged under charge I was one incident of unprofessional conduct. During a
stress test, appellant made disparaging comments about two technicians present at the
test. Despite their protestations, appellant claimed one technician had not shown the
patient how to walk on the treadmill and the other had no idea if the IV was in or out. He
ordered the first technician to help the patient get off and then back onto the treadmill
while it was still elevated and moving, exposing both to unnecessary risk of injury.
Appellant argues the JRC must not have considered this incident because it did not refer
to it specifically. But the JRC did refer to appellant’s unprofessional conduct toward
staff, of which this incident was an example.
Appellant also argues that since neither technician testified at the hearing, he had
no opportunity to cross-examine them, and their hearsay written statements about the
incident are not substantial evidence. Section 809.3, subdivision (a)(4), allows the parties
to a peer review proceeding to present evidence “determined by the arbitrator or
presiding officer to be relevant.” Under the Bylaws (art. VIII, § C(11)(f)), relevant
hearsay evidence is admissible at a peer review hearing, so long as it is the type of
evidence upon which “responsible persons are accustomed to rely in the conduct of
serious affairs.” The evidence came in through the testimony of the catheterization
laboratory’s director, who investigated both appellant’s complaints about the laboratory
and staff complaints about appellant. The hearing officer ruled the director’s testimony
about complaints he received and investigated was the type of hearsay evidence on which
one would reasonably rely. We see no problem in that ruling. Appellant had no
constitutional right to confront witnesses since a hospital peer review proceeding is not
criminal in nature. (See Medical Staff of Sharp Memorial Hospital v. Superior Court
(2004) 121 Cal.App.4th 173, 182.)
The incident supports the JRC’s finding that in addition to substandard care and
documentation, appellant’s unprofessional relationship with staff was disruptive of
patient care.
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B. Pattern of Inadequate, Substandard Medical Record Documentation
Charge III stated that appellant engaged in “a pattern of inadequate, substandard
medical record documentation.” This charge included allegations that his documentation
was “meager, boilerplate, and written in a scrawl.” His notes did not reflect “patient-
specific findings, the course of treatment, or [his] thought process with regard to the
resolution of the patient’s clinical problem. Frequent discrepancies are noted, crucial
data is omitted, history and physicals are grossly inadequate and incomplete, and progress
notes do not effectively track the patient’s hospital course.” This allegedly resulted in
“poor continuity of patient care and inability of other healthcare professionals to
adequately treat the patient, thus exposing patients to unnecessary risk of harm.” The
charge was illustrated with 22 medical records (four were listed twice), as well as the
NMA and Hirsch reports.
The JRC noted that “the patent’s status in the Hospital concerning studies,
consultations, and progress must be recorded in a timely, concise, and readable manner.”
It found appellant’s penmanship to be “totally illegible”; his workups boilerplate and
lacking the expected variety “given his specialty and patient base.” His records did not
“reflect patient-specific indications for the course of treatment or his thought process with
regard to the resolution of the patient’s clinical problem.”
Two-thirds of the medical records listed in support of charge III also were at issue
in charge I, which referenced charge III. In light of this substantial overlap of the two
charges, the JRC, in effect, considered them both cumulatively and separately. We have
noted the various documentation problems identified in these cases in our discussion of
charge I.
Respondent’s experts additionally testified that appellant’s history and physical
information sheets often provided insufficient description of the patient’s present illness
or complaints and prior history. According to their testimony, the patient’s progress was
insufficiently recorded in the progress notes, the charts provided insufficient
documentation of appellant’s reasoning and his diagnostic approach, and discharge
summaries did not include directions for follow-up. The experts explained that
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inadequate medical record documentation could result in missing important aspects of a
patient’s condition, and in poor continuity of care if more than one physician was
involved in a case. That is so because physicians rely on the patients’ medical records,
rather than face-to-face communication, to get relevant information.
Appellant broadly argues that respondent’s reviewers and experts misstate the
record in many cases. This argument is supported by selective, somewhat random, and
often conclusory or inadequately documented statements directed at the NMA and Hirsch
audit reports rather than at the expert testimony at the JRC hearing. Our review of the
record indicates that, with the exception of case nos. 5, 13, and 20, where an expert
conceded there was either no documentation error or the error was that of another doctor,
appellant’s criticism falls short of undermining the foundation of the expert opinions
supporting this charge.
We address briefly appellant’s various claims of error. In case no. 8, appellant
was not criticized for failing to provide “a history and physical,” as he claims, but for not
including a history of the present illness in the history and physical. Respondent’s expert
made clear at the hearing that the discrepancy in gradients in case no. 9 was “gross,”
rather than the commonly occurring minor discrepancy appellant suggests it was. In case
no. 12, the outside reviewer questioned appellant’s documentation of chest pain because
it was contradicted by the lack of complaints of chest pain on admission. In case no. 14,
appellant was not criticized solely for the poor organization of his history and physical
information, as he suggests, and at the hearing, his own expert agreed that the cardiac
workup in the case was incomplete.
One outside reviewer took issue with appellant’s indications for catheterization:
“to get information that might help in prognosis and treatment” and “to get information
about myocardial ischemia.” At the hearing, the reviewer explained that these were
general goals rather than true individualized indications. Appellant argues that this
critique is immaterial in case nos. 15 and 16, where the reviewer found the catheterization
was indicated by the medical record. But by the same token, the critique is material in
cases where the reviewer found that catheterization was not indicated.
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In case no. 18, appellant’s description of the patient’s chest pain as cardiac in
nature was suspect because the pain had already been diagnosed as pleuritic in a
pulmonary consult with which appellant had agreed; in light of that, appellant could not
reasonably have adopted the emergency room physician’s tentative initial angina
diagnosis, on which he now relies.
The reviewer in case no. 23 clarified at the hearing that he did not criticize
appellant for not documenting the result of a stress test, but that the scant notation “stress
test +” gave no indication appellant had reviewed the actual test report. In case no. 25
(PA#3579257), the reviewer’s tentativeness about the precise date of a prior angiography
does not undermine his opinion that appellant should have documented its results. Nor
does one reviewer’s failure to notice the problem undercut another reviewer’s opinion
that, in case no. 30, appellant’s “telegraphic, meager” progress notes “written in scrawl”
do not give a clear picture of the patient’s course of treatment in the hospital.
Appellant’s citations to the record do not support the conclusory claim that he
adequately documented prior revascularizations in case nos. 24 (PA#978280) and 27
(PA#917931, PA#90646). Appellant may be correct that, in case no. 31 (PA#1871285), a
reviewer erroneously assumed the patient, who suffered a recurrent transient ischemic
attack, had been admitted before, and in case no. 32 (PA#1083040), the presumed lack of
documentation of the patient’s asthma and infection was based on the reviewer’s
conflation of two patients’ medical records. But these errors do not impact the reviewers’
criticism of appellant’s inadequate justification of the diagnosis of coronary artery
disease in case no. 31 and documentation of the patient’s cardiovascular condition and
tests in case no. 32, which appellant does not address.
Since charges I and III are substantially coextensive, the JRC’s findings on charge
III are supported by substantial evidence for the same reasons as the findings on charge I.
While the range of documentation problems is indeed broad, appellant’s characterization
that they are generally trivial is contradicted by the opinion of respondent’s experts,
which is sufficient to support the JRC’s decision.
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C. Inappropriate Interpersonal Relations
Charge V stated that appellant “engaged in a pattern of inappropriate interpersonal
relations with staff members, patients and their families” in violation of the bylaws,
ethics, and professional standards, to the detriment of overall hospital function and the
quality of patient care. The charge referenced a list of incidents, medical records, and the
outside audit reports. The JRC sustained the charge in part, finding a pattern of
inappropriate interpersonal relations with staff members, but not with patients and their
families. The JRC found appellant’s behavior was similar to behavior about which he
had been “warned,” and that this repetitive inappropriate behavior was “below the
accepted standard of behavior for physicians.”
Appellant argues the JRC inappropriately relied on charges filed against him in
1997, which were not sustained since the matter was settled. We do not read the JRC’s
decision as improperly basing the finding under charge V on the prior case against
appellant since the JRC expressly refused to sustain charge VI, which was a summary of
that case. Nor do we understand the JRC to mean that appellant received a formal
warning as discipline in the prior case. To the extent the JRC’s finding may be read to
mean that the prior charges gave appellant notice of the behavior that could expose him
to disciplinary action, we do not consider that finding necessary to the decision. The
allegations against appellant in this case were sufficient to support a finding of repetitive
unprofessional conduct, without need to reference the prior case.
Respondent’s witnesses testified that appellant was contentious and inflexible,
regardless of whether he was right or wrong, and often lost his temper and used foul
language in front of staff and patients. The director of the cardiac catheterization
laboratory and the director of clinical process improvement at the hospital both testified
they had personally observed appellant’s inappropriate behavior with laboratory
technicians, nurses, nursing supervisors, and case managers. They also had received and
investigated complaints from staff. The laboratory director testified generally that his
staff found working with appellant to be difficult. The laboratory director also explained
that when appellant became angry, it was impossible to talk to him and resolve issues
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because appellant never acknowledged that he had done anything wrong, and he appeared
to enjoy arguing. Similarly, respondent’s chief executive officer testified that when, in
2002, he spoke to appellant about lashing out at staff, appellant responded he enjoyed
“causing trouble, it makes it fun.”
Between 2000 and 2002, appellant was virtually the only physician who
complained about stress test scheduling at the catheterization laboratory. He would get
extremely upset over scheduling problems even though his own special demands and
limited availability contributed to the problems. He accused the staff of the
catheterization laboratory of favoring another physician over him in scheduling stress
tests, but an investigation proved the complaint to be unfounded. He was rude and
argumentative even when staff attempted to resolve scheduling and other problems.
Once, appellant stopped a stress test because he believed the I.V. tubing did not correctly
deliver the medicine to the patient. He insisted the hospital customize the tubing, and the
hospital eventually bought the tubing appellant requested. But, in the meantime,
appellant used offensive language in a special meeting with a representative of the tubing
manufacturer, convened to show him how the tubing worked.
A recurrent issue was appellant’s inappropriate documentation of his complaints
about patient care in the patients’ medical records. Respondent’s witnesses, and even
appellant’s experts, agreed that while appellant should be free to advocate for patient
care, his approach was improper and ineffective because it created legal liability issues
for himself and respondent without resolving the problems. The director of clinical
process improvement testified that the proper way to communicate with case managers
was to use a “yellow sheet,” which was detachable from the patient’s record and became
part of the risk management files. Appellant repeatedly had been told not to use the
medical records to communicate his frustrations and problems with administration.
For instance, in case no. 3, appellant complained that a direct admit patient had
stayed in the emergency room for 10 hours. Respondent’s expert testified that this issue
should be dealt with internally and interpersonally rather than in the patient’s medical
record. In case no. 34 (PA#1068180), appellant issued repeated physician’s orders for
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the transfer of a patient and complained of the delay in transfer. The director of clinical
process improvement testified that appellant’s repeated orders did not acknowledge that
the hospital was working to obtain a transfer. His contentious relationship with case
managers, in fact, slowed down the process and opened the hospital to liability. In case
nos. 24 and 30, appellant complained at length about the denial of Medi-Cal coverage,
when even his expert agreed one sentence would have been sufficient, and the complaint
about the denial of coverage was not properly addressed to the hospital’s administration.
Appellant argues that he cannot be disciplined for advocating for patient care. We
agree, but that is not the issue here. Under section 2056, subdivision (c), the termination
or penalization of a “‘physician and surgeon principally for advocating for medically
appropriate health care . . . violates the public policy of this state.’” (Khajavi v. Feather
River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 47.) Even assuming that
patient care advocacy was involved in most incidents alleged under charge V, this was
not the only sustained charge against appellant, and there is no indication that the other
sustained charges were pretextual. Thus, it cannot be said that appellant was denied
reappointment principally because he advocated for patient care. Additionally, even as to
charge V, appellant was for the most part not faulted for his complaints but for the
manner in which he made them. At least in some instances, his contentiousness did not
appear motivated solely by a desire to advocate for patient care and resulted in
obstructionism.
Appellant’s reliance on Miller v. Eisenhower Medical Center (1980) 27 Cal.3d
614 fails for the same reason. The court in that case held that a physician’s staff
privileges may not be terminated solely based on his inability to work with others unless
his behavior presents “a real and substantial danger that patients treated by him might
receive other than a ‘high quality of medical care’ at the facility . . . .” (Id. at p. 629.) As
we have explained, appellant was not denied reappointment solely because he could not
work with others. Furthermore, testimony that, when angry, appellant made it difficult or
impossible to resolve issues of patient care and that the manner of his advocacy was
ineffective or even counterproductive provided a demonstrable nexus between his
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contentious relationship with staff and the quality of patient care. (See Marmion v.
Mercy Hospital & Medical Center (1983) 145 Cal.App.3d 72, 86 [finding specific
instances of inability to work with others oriented toward patient care sufficient to justify
termination from residency training program].)
We conclude that the JRC’s findings on the sustained charges are supported by
substantial evidence.
D. Penalty
In the reply brief, appellant argues the JRC’s statement that “it would have
pursued an intermediate resolution” had it been the initial decision maker renders its
decision ambiguous because it suggests the JRC disagreed with the Governing Board’s
decision to deny reappointment, but nevertheless deferred to that decision. We need not
address this untimely argument, but, in any event, there is no ambiguity. The JRC
applied the correct standard of review when it concluded by a preponderance of the
evidence that the decision of the Governing Board to deny appellant reappointment “was
reasonable and warranted.” Its statement does not indicate it would have upheld the
decision had it been unreasonable or unwarranted.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J. MANELLA, J.
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