Rao v. Washington Township Health Care Dist. CA1/5

Filed 6/28/13 Rao v. Washington Township Health Care Dist. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
RAMINENI V. RAO,
Plaintiff and Appellant, A134623
v.
WASHINGTON TOWNSHIP (Alameda County
HEALTH CARE DISTRICT, Super. Ct. No. HG10540985)
Defendant and Respondent.
1
Defendant and respondent Washington Township Health Care District
(respondent), which operates Washington Hospital, terminated the medical staff
membership and hospital privileges of plaintiff and appellant Ramineni V. Rao, M.D.
(appellant), a surgeon. Appellant appeals from the superior court‟s order denying his
petition for writ of mandate seeking reinstatement of his privileges. (Code Civ. Proc.,
§ 1094.5.) We reverse and remand with instructions that the superior court issue a writ of
mandate directing respondent to provide appellant an opportunity to present argument
whether the findings reached following his peer review hearings justified revocation of
his privileges.
BACKGROUND
Washington Hospital is located in Fremont. The hospital is governed by a Board
of Directors (Board) and has a medical staff responsible for the quality of the medical
care rendered to patients in the hospital.
Appellant is a surgeon who was on the medical staff of Washington Hospital until
revocation of his staff membership and hospital privileges in 2010.
The peer review process involving appellant began in 2002. That year,
Washington Hospital‟s Department of Anesthesia forwarded concerns to the Department
of Surgery regarding appellant‟s competence. This resulted in an investigation, and over
the next four years several investigations were conducted by a committee within the
hospital and by independent investigative bodies. The reviews raised concerns about
appellant‟s medical competence and behavior.
On September 25, 2006, Washington Hospital‟s Medical Executive Committee
(MEC), the governing body of the medical staff, notified appellant that it proposed
corrective action be taken against him. The MEC informed appellant his behavior was
deemed to be “unprofessional, extremely disruptive of medical staff and hospital
operations, and it can adversely impact the provision of quality patient care.” The MEC
recommended, among other things, restriction of 14 specific surgical privileges and
institution of a progressive discipline process. The MEC stated, “[b]y restricting your
practice to those areas where you are clearly competent, patients will be protected.”
2
Appellant requested a hearing on the proposed actions. An attorney hearing
officer was selected and a Judicial Review Committee (JRC) consisting of four
physicians was empanelled to hear the evidence and render a decision in accordance with
the procedures set forth in article VII of the October 2005 Washington Hospital Medical
Staff Bylaws, Policies and Procedures (Bylaws). Appellant was initially represented by
counsel, but he subsequently represented himself and sought to prevent the representation
of the MEC by counsel. The hearing officer permitted the MEC to be represented by
counsel in some sessions.
On February 8, 2007, the MEC sent appellant a supplemental notice of charges.
Among other things, the notice charged that “certain tendencies in [appellant‟s] patient
care decision making adversely affect patient care or create an unacceptably high risk of
adverse impact on patient care.” It also alleged that appellant was “practic[ing] at or
beyond the outer limits of [his] competence and unnecessarily expos[ing] [his] patients to
an increased risk of adverse outcome.” The notice revised the list of restrictions in the
September 2006 notice, but it still contemplated appellant‟s continued practice at
Washington Hospital.
The evidentiary hearings before the JRC began February 19, 2008, and ended on
April 20, 2009. At the end of the summer of 2008, it became known that appellant was
interviewed in a documentary film (called “Life for Sale”) critical of Washington
Hospital and the practice of one of the members of the JRC. On September 10, 2008, the
JRC members were voir dired regarding any potential bias due to the documentary.
Appellant objected to the continued participation of the JRC member whose practice was
criticized in the documentary and that person was excused from further participation in
the matter.
The parties submitted written closing statements, followed by oral closing
statements on July 20, 2009. In September 2009, the JRC issued a 29-page decision. The
JRC concluded the MEC‟s charges were supported by a preponderance of the evidence
and the MEC‟s proposed clinical limitations and monitoring program involving
3
progressive discipline were reasonable and warranted. However, the JRC also expressed
reservations about the likely effectiveness of that recommended plan of corrective action.
Appellant appealed the JRC decision to the Board, in accordance with Bylaws
Section 7.5. The Board delegated its responsibilities to an appellate hearing officer under
Bylaws Section 5.c. Both parties submitted lengthy written appellate briefs. An
appellate hearing took place in May 2010; appellant appeared with legal counsel. The
appellate hearing officer submitted a report and recommendation to the Board. He told
the Board it was “not constrained simply to endorse the actions that were upheld by the
JRC as the final actions of the Hospital.” However, he noted that, if the Board were
inclined to impose more severe corrective action, both the MEC and appellant should be
given the opportunity for further comment.
On June 11, 2010, the Board found the JRC‟s decision was supported by
substantial evidence, but it nevertheless remanded the matter back to the JRC, expressing
concern that the MEC‟s recommended actions did not adequately protect the patients at
Washington Hospital. The Board directed the JRC to reconsider “whether the MEC‟s
recommended restrictions to [appellant‟s] surgical privileges . . . are feasible and
reasonable,” “whether [appellant‟s] completion of an „anger management‟ course is
reasonable and warranted in light of the evidence in the entire record,” “whether the
MEC‟s described behavioral program . . . is a sufficient disciplinary measure and whether
substantial evidence in the record supports a more severe measure,” and “whether
[appellant‟s] Medical Staff membership and all clinical privileges should be revoked.”
The Board also directed the JRC to “provide [appellant] and the MEC with notice of the
issues on remand and a reasonable opportunity to respond to them and be heard.”
On remand, the JRC requested briefing from the parties solely on the question of
whether the JRC had the power to recommend disciplinary action different from what the
MEC initially recommended. Appellant requested an opportunity to present evidence and
argument on the appropriateness of revocation of his privileges, but the JRC “concluded
there was no need for further hearing sessions or receipt of additional evidence or
argument with respect to the questions presented.”
4
The JRC issued a supplemental decision responding to the Board‟s inquiries. The
JRC stated its initial decision “made it clear the criteria of „reasonable and warranted‟ did
not mean there was only one best or perfect answer, but allowed for . . . rational choices
among a range of reasonable options.” Among other things, the JRC decided the
originally proposed surgical restrictions were “not likely to operate in a smooth and
congenial and efficient manner, and that it is likely to lead to more conflict and
animosity, impose undue costs and burdens, and potentially lead to adverse impacts on
the delivery of prompt needed care to patients.” The JRC concluded, “the facts
determined at the hearing indicate the corrective action proposed by the MEC is not
sufficient to redress the professional and behavioral concerns generated by [appellant].
After months of hearings, volumes of documentary evidence, and the opportunity to
personally evaluate the testimony of scores of witnesses, and most especially that of
[appellant], the JRC unanimously states its conclusion and recommendation that the facts
warrant revocation of [appellant‟s] Medical Staff clinical privileges and membership at
Washington Hospital.”
On July 12, 2010, after considering the supplemental JRC decision, the Board
revoked appellant‟s medical staff membership and hospital privileges.
In the meantime, in November 2008, the MEC initiated a second disciplinary
proceeding against appellant (Rao II). The MEC sought termination of appellant‟s
medical staff membership and hospital privileges. The MEC alleged, among other
things, that, in participating in the “Life for Sale” documentary, appellant disclosed
patient information and misrepresented the peer review process. Appellant requested a
hearing, a separate JRC was empanelled, and hearing sessions took place from October
2009 through June 2010. Appellant contended the Rao II charges were illegal retaliation
for his participation in the documentary. In light of the July 2010 revocation of
appellant‟s membership and privileges, the JRC declined to issue a final decision on the
charges and proposed action in Rao II. However, the JRC did leave open the possibility
of issuing a decision “if and when: (a) the JRC determines it is appropriate to do so; or
5
(b) the MEC and [appellant] both join in the Board‟s request [for issuance of a final
decision]; or (c) the JRC is ordered to do so by a court of competent jurisdiction.”
In October 2010, appellant filed a petition seeking issuance of a writ of
administrative mandate directing the Board to set aside its July 2010 revocation of his
membership and privileges. (Code Civ. Proc., § 1094.5.) He also requested termination
of the Rao II proceedings. The superior court denied the petition. This appeal followed.1
DISCUSSION
Appellant argues a writ of mandate must issue because: (1) the Board exceeded its
authority in rejecting the decision of the JRC; (2) appellant was not provided notice the
peer review proceeding could result in revocation of his privileges; and (3) the MEC was
represented by counsel at certain hearing sessions when he was not.2 We agree appellant
should have been provided an opportunity to address the appropriateness of revoking his
privileges, but otherwise reject his claims.
I. Hospital Peer Review
“California has enacted a comprehensive statutory scheme governing hospital peer
review. [Citations.] The purpose of peer review 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.” ‟ [Citation.]” (Ellison v. Sequoia Health Services (2010) 183 Cal.App.4th
1486, 1494 (Ellison); Bus. & Prof. Code, § 809 et seq.; see also El-Attar v. Hollywood
Presbyterian Medical Center (2013) ___ Cal.4th ___, ___ [2013 Cal.LEXIS 4697, pp.
*13-*14] (El-Attar).) “A second purpose of the legislation, which is „also if not equally
important, is to protect competent practitioners from being barred from practice for
1 This court granted leave to the Association of American Physicians & Surgeons, Inc.,
to file an amicus brief in favor of appellant. That brief was directed only to the
contention that the Rao II proceedings violate appellant‟s rights under the First
Amendment of the United States Constitution, which is an issue we need not and do not
reach in the present decision.
2 Appellant does not contend insufficient evidence supports the decision to revoke his
privileges.
6
arbitrary or discriminatory reasons.‟ [Citation.]” (El-Attar, at p. ___ [2013 Cal.LEXIS
4697, p. *14].)
Washington Hospital is required to have “an organized medical staff responsible
to the governing body for the adequacy and quality of the care rendered to patients.”
(Cal. Code Regs., tit. 22, § 70703, subd. (a).) The medical staff is required to adopt
written bylaws establishing a process of peer review to deal with “staff applications and
credentials, appointments, reappointments, assignment of clinical privileges, appeals
mechanisms and such other subjects . . . .” (Id., subd. (b).) The bylaws govern peer
review proceedings, subject to the peer review statutes. (Ellison, supra, 183 Cal.App.4th
at p. 1494.)
Under Washington Hospital‟s Bylaws, corrective action against a practitioner with
clinical privileges may be initiated where the practitioner “engages in[,] makes[,] or
exhibits acts, statements, demeanor or professional conduct . . . and the same is, or is
reasonably likely to be detrimental to patient safety or to the delivery of quality patient
care, disruptive to Hospital operations or an impairment to the community‟s confidence
in the Hospital, or constitute fraud or abuse or does not abide by the Bylaws and Rules
and Regulations of the Medical Staff or the Rules and Regulations of his/her Department
. . . .” (Bylaws, art. VI, § 6.1-1.) At the conclusion of an investigation, the MEC may
take various actions, including recommending restrictions on or revocation of clinical
privileges or staff membership. (Id., art. VI, § 6.1-4.)
Where the MEC has recommended adverse action against a staff member—
including, for example, “revocation of Medical Staff membership” or “denial,
involuntary reduction, suspension, or termination of clinical privileges”—the practitioner
must be provided notice in writing including “[a] description of the action or
recommendation,” information regarding the deadline to request a hearing, a summary of
the member‟s rights at the hearing, and “[a] concise statement of the reasons for the
action or recommendation.” (Bylaws, art. VII, §§ 7.2, 7.3-1.) If a staff member requests
a hearing regarding an adverse action, the MEC appoints a JRC, composed of not less
than three members of the medical staff, to hear the matter. (Id., art. VII, § 7.3-5.) At the
7
hearing, “the MEC shall bear the burden of persuading the JRC by a preponderance of the
evidence that the action or recommendation is reasonable and warranted.” (Id., art. VII,
§ 7.4-7.) The JRC must issue a written decision and report containing “findings of facts
and a conclusion articulating the connection between the evidence produced at the
hearing and the decision reached.” (Id., art. VII, § 7.4-10.)
Finally, the decision of the JRC may be appealed by the staff member or the MEC
to the Board on the grounds that “a) [there was] substantial non-compliance with the
procedures required by these Bylaws or applicable law which has created demonstrable
prejudice; b) the decision was not supported by substantial evidence based upon the
hearing record.” (Bylaws, art. VII, §§ 7.5-2, 7.5-4.) The appeal “shall be in the nature of
an appellate hearing based upon the record of the hearing before the JRC . . . .” (Id., art.
VII, § 7.5-5.) The Board “may affirm, modify, or reverse the decision of the JRC or
remand the matter to the JRC for reconsideration.” (Id., art. VII, § 7.5-6.)
II. Judicial Review
A hospital‟s final decision in a peer review proceeding may be reviewed by a
petition for writ of administrative mandate. (Code Civ. Proc., § 1094.5; Bus. & Prof.
Code, § 809.8; El-Attar, supra, ___ Cal.4th at p. ___ [2013 Cal.LEXIS 4697, pp. *12-
*13]; Ellison, supra, 183 Cal.App.4th at p. 1495.) In an appeal from an order granting or
denying the writ, the Court of Appeal “must apply the same standard of review as the
trial court, giving no deference to the trial court‟s decision.” (Ellison, at p. 1495.)
“When the issue presented is whether the hospital‟s determination was made according to
a fair procedure, the court will treat the issue as one of law, subject to independent review
based on the administrative record. [Citation.]” (Id. at p. 1496.)
III. It Was Not Improper for the Board to Remand for Reconsideration
Appellant contends it was a violation of the Bylaws for the Board to remand to the
JRC for reconsideration of the disposition, even though the Board concluded the JRC‟s
decision was supported by substantial evidence.
This court rejected the same contention in parallel circumstances in Ellison, supra,
183 Cal.App.4th at pages 1496-1498. There, a peer review hearing resulted in a JRC
8
decision requiring the presence of a board certified assistant surgeon during the appellant
doctor‟s surgical procedures. (Id. at p. 1492.) On appeal, the hospital board concluded
the JRC‟s factual findings were supported by substantial evidence, but remanded the
matter to the JRC so it could reconsider the option of revoking the doctor‟s clinical
privileges pursuant to a revised recommendation from the MEC. (Id. at pp. 1493, 1497.)
The JRC declined to change its disposition, but, on another appeal by the MEC, the
Board reversed the JRC and revoked the doctor‟s hospital privileges. (Id. at p. 1493.) On
appeal from the trial court‟s order denying the doctor‟s petition for writ of administrative
mandate, this court held the hospital bylaws in Ellison “required the board to accept the
JRC‟s factual findings if supported by substantial evidence, but gave the board the power
to exercise independent judgment as to the appropriate disposition.” (Id. at p. 1496.)
In reaching that conclusion, Ellison focused on several provisions in the hospital
bylaws there. First, Ellison pointed out that the appeal provision in the bylaws gave the
board “the ultimate responsibility of determining whether the action taken or
recommended by the JRC is „reasonable and warranted under the circumstances.‟ . . . By
giving the board the power to make this factual determination . . . , the bylaws effectively
allow the board to exercise its independent judgment as to what constitutes a reasonable
disposition, even though it must defer to the JRC with respect to its findings on the
underlying facts.” (Ellison, supra, 183 Cal.App.4th at p. 1497; see also id. at p. 1495.)
Appellant points out that the Bylaws in the present case specify as a ground for appeal
that “the decision was not supported by substantial evidence” and do not specify the
unreasonableness of the disposition as a ground for appeal. (See Weinberg v. Cedars-
Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1110 (Weinberg) [drawing
distinction between bylaws that impose substantial evidence standard of review from
those that do not].)
However, Ellison also relied on other portions of the bylaws in that case in
concluding the board there had authority to exercise independent judgment regarding the
disposition. In particular, Ellison pointed out that the bylaws empowered the board to
take and consider additional evidence, “a power that would be meaningless if the board
9
could not make certain factual determinations independent of the JRC‟s.” (Ellison,
supra, 183 Cal.App.4th at p. 1497.) The Bylaws in the present case also empower the
Board to take additional evidence. Moreover, Ellison pointed out that the board “has the
power to „affirm, modify or reverse‟ the JRC‟s decision,” which Ellison construed as
“specifically allowing [the board] to structure a different disposition than the JRC‟s if the
latter‟s is not reasonable and warranted.” (Ibid.) A similar provision appears in the
Bylaws in the present case, providing that the Board “may affirm, modify, or reverse the
decision of the JRC or remand the matter to the JRC for reconsideration.” (Bylaws, art.
VII, § 7.5-6.)
Although the Bylaws in the present case provide less independent authority to the
Board than the bylaws in Ellison, they still contemplate that the Board will exercise
discretion in reviewing the JRC‟s decision. Nothing in the Bylaws requires the Board to
either adopt or reject the JRC‟s decision as written. To the contrary, the Bylaws
expressly authorize the Board to modify the decision and to remand for reconsideration.
Moreover, it is important to note that, while the board in Ellison substituted its own
judgment for that of the JRC, the Board in the present case merely remanded for
reconsideration in light of certain specified concerns regarding the practicality and
effectiveness of the JRC‟s disposition. The Board has the “[u]ltimate responsibility” to
ensure patient safety. (Weinberg, supra, 119 Cal.App.4th at p. 1109; see also
Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1267
(Mileikowsky); Medical Staff of Sharp Memorial Hospital v. Superior Court (2004) 121
Cal.App.4th 173, 181-182 [“[T]he overriding goal of the state-mandated peer review
process is protection of the public and . . . , while important, physicians‟ due process
rights are subordinate to the needs of public safety.”]; Hongsathavij v. Queen of Angels
etc. Medical Center (1998) 62 Cal.App.4th 1123, 1143.) Absent unambiguous language
in the Bylaws prohibiting the Board from acting as it did, we conclude the Board did not
10
exceed its authority under the Bylaws by remanding to the JRC for reconsideration of the
disposition.3
IV. Respondent Violated Due Process by Revoking Appellant’s Privileges Without
Providing Him an Opportunity to Respond to That Proposed Action
Appellant also contends respondent violated the Bylaws, the peer review statutes,
and his right to due process by revoking his staff membership and hospital privileges
without providing him notice and an opportunity to respond to that proposed action. We
conclude the revocation violated appellant‟s right to due process; we need not and do not
decide whether that action also violated the Bylaws and/or the peer review statutes.4
A. Due Process Rights in Peer Review Proceedings
“Peer review that is not conducted fairly and results in the unwarranted loss of a
qualified physician‟s right or privilege to use a hospital‟s facilities deprives the physician
of a property interest directly connected to the physician‟s livelihood. [Citation.] As one
author stated: „It is almost impossible for a physician to practice medicine today unless
[her or] she is a medical staff member at one or more hospitals. This is because a doctor
cannot regularly admit or treat patients unless [he or] she is a member of the medical
staff. Privileges are especially important for specialists, like surgeons, who perform the
majority of their services in a hospital setting. For this reason, a hospital‟s decision to
deny membership or clinical privileges, or to discipline a physician, can have an
immediate and devastating effect on a practitioner‟s career.‟ [Citation.]” (Mileikowsky,
supra, 45 Cal.4th at pp. 1267-1268.) Moreover, because hospitals are required to report
3 Appellant does not contend the Board‟s remand for reconsideration deprived him of
due process. For the first time in his reply brief, appellant contends the Board‟s remand
violated the peer review statutes. We do not address that contention, which has been
forfeited. (Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9.)
4 Ellison held the hospital there did not violate the peer review statutes or bylaws at
issue by imposing a disciplinary measure more severe than initially recommended by the
MEC in the case. (Ellison, supra, 183 Cal.App.4th at p. 1499.) There, we concluded the
notice of proposed action required by the governing statutes and bylaws did not “place a
limit on what the governing body might ultimately decide.” (Ibid.) However, in that case
the physician had notice of and an opportunity to respond to the proposed action
ultimately adopted. (Id. at pp. 1499-1500.)
11
denials of staff privileges to the Medical Board of California (Medical Board), and
because hospitals considering granting staff privileges are required to contact the Medical
Board to learn of disciplinary actions involving the physician, “[a] hospital‟s decision to
deny staff privileges . . . may have the effect of ending the physician‟s career.” (Id., at p.
1268.)
Although respondent was not required to provide appellant “ „formal proceedings
with all the embellishments of a court trial,‟ ” due process and fair procedure required at
a minimum “adequate notice of charges and a „fair opportunity [for the affected party] to
present his position.‟ ” (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802,
829, 830; see also Rhee v. El Camino Hospital Dist. (1988) 201 Cal.App.3d 477, 489.)5
Regarding the opportunity to be heard, the Supreme Court has explained, “ „It is a
fundamental principle of justice that no man may be condemned or prejudiced in his
rights without an opportunity to make his defense, and this principle is applicable not
only to courts but also to labor unions and similar organizations.‟ ” (Pinsker v. Pacific
Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 (Pinsker).) Thus, “a basic
ingredient of the „fair procedure‟ required under the common law is that an individual
who will be adversely affected by a decision be afforded some meaningful opportunity to
be heard in his defense. Every one of the numerous common law precedents in the area
establishes that this element is indispensible to a fair procedure. [Citations.]” (Ibid.; see
also Cleveland Bd. of Education v. Loudermill (1985) 470 U.S. 532, 546 (Loudermill)
[“The opportunity to present reasons, either in person or in writing, why [the] proposed
action should not be taken is a fundamental due process requirement.”].)
5 A physician is afforded “due process” rights when a hospital is a public one (like
Washington Hospital) and “fair procedure” rights when it is private. (Applebaum v.
Board of Directors (1980) 104 Cal.App.3d 648, 656-657.) However, “[t]he distinction
between fair procedure and due process rights appears to be one of origin and not of the
extent of protection afforded an individual; the essence of both rights is fairness.
Adequate notice of charges and a reasonable opportunity to respond are basic to both sets
of rights. [Citations.]” (Id. at p. 657.)
12
B. Appellant Did Not Receive Timely Notice of And an Opportunity to Respond to
the Possibility of Revocation of His Membership And Privileges
On appeal, respondent does not appear to deny that appellant was entitled to notice
of the possibility his membership and privileges would be revoked. Instead, respondent
argues appellant was provided such notice. However, close examination of the record
shows the contrary. Respondent asserts, “[Appellant] was warned years before the final
decision that termination could result from the Rao I peer review proceeding.” The first
document to which respondent points is the September 25, 2006 notice of charges.
Respondent asserts that language on the first page of the notice informed appellant that
“the recommended consequence „may include termination from the Medical Staff without
the right to further separate hearings.‟ ” However, the full passage states, “Note the MEC
recommends that the consequence of future MEC findings that you have engaged in
disruptive conduct in violation of the behavioral expectations include automatic
suspensions and may include termination from the Medical Staff without the right to
further separate hearings.” The clear import of that passage is that future misconduct
could conceivably result in revocation of membership and privileges. Similarly,
respondent points to an addendum to the notice and asserts, “the medical staff was, at that
time, recommending a series of progressive disciplinary measures that could result in
„[a]utomatic termination of Medical Staff membership and clinical privileges, without the
right to a separate hearing.‟ ” However, review of the addendum makes it clear the MEC
was recommending a probationary program that could result in revocation of membership
and privileges at the end of a long process of progressive discipline. Thus, once again,
appellant was not provided notice the conduct that resulted in the MEC‟s charges could
result in revocation; he was informed that future conduct could eventually lead to that
result if the program of progressive discipline were imposed. In fact, the September 25,
2006 notice makes it clear the MEC‟s recommendation was not revocation of appellant‟s
membership and privileges. The notice specifies the surgical privileges to be restricted
and states, “[b]y restricting your practice to those areas where you are clearly competent,
patients will be protected.”
13
The February 8, 2007 supplemental notice also failed to inform appellant
revocation of membership and privileges was contemplated. That notice revised the list
of restrictions in the September 2006 notice, but it still contemplated appellant‟s
continuing practice at Washington Hospital, stating that the restrictions are the “current
and only adverse recommendations.” (Underscoring in original.) In arguing that the
supplemental notice did inform appellant revocation was contemplated, respondent
quotes language at the end of the notice stating, “any recommendations that result in any
final adverse action of the [Board], which restrict some or all of your surgical privileges,
have been or will be reported” to the Medical Board. That language simply recites what
the law requires—mandatory notice to the Medical Board of any restriction of privileges.
(Bus. & Prof. Code, § 805, subd. (b).) It cannot be read to override the prior assurance
that the specified, limited restrictions were the “only adverse recommendations.”
Neither did appellant receive notice of the possibility of revocation in the JRC
hearings. In those hearings, the MEC consistently took the position that appellant‟s
privileges should be restricted, not revoked. Respondent does not argue to the contrary.
Even in its brief for the Board appeal, the MEC continued to assert that “restrictions were
designed to set limitations to allay concerns while still allowing [appellant] to continue to
practice surgery, within limits.” Ultimately, the MEC asked the Board to “[t]erminate
certain vascular and general surgery privileges and place restrictions for all vascular and
general surgical privileges that are not terminated . . . .” It was only in the appellate
hearing officer‟s report to the Board that the suggestion was made that the Board could
take a different, more severe action against appellant, although the officer stated the MEC
and [appellant] should have an opportunity “to comment before a final decision is made.”
Subsequently, the Board remanded the matter to the JRC with directions that it
“reconsider, review and make recommendations as to whether [appellant‟s] Medical Staff
membership and all clinical privileges should be revoked.” The Board also directed the
JRC to “provide [appellant] and the MEC with notice of the issues on remand and a
reasonable opportunity to respond to them and be heard.” However, thereafter the JRC
requested briefing solely on the question of whether the JRC had the power to
14
recommend disciplinary action different from what the MEC initially recommended.
Appellant requested an opportunity to present evidence and argument on the
appropriateness of revocation, but the JRC “concluded there was no need for further
hearing sessions or receipt of additional evidence or argument with respect to the
questions presented.”
C. Conclusions and Scope of Remand
In the present case appellant had notice of the charges against him and the MEC‟s
recommended actions, and an opportunity to respond to both. However, he was provided
no opportunity to respond to the suggestion, raised for the first time in the Board‟s
decision on appeal, that the JRC‟s findings justified revocation of membership and
privileges and that the MEC‟s recommended actions were likely to be infeasible or
ineffective. After the matter was remanded to the JRC for reconsideration of the
disposition, appellant requested but was denied an opportunity to address the JRC on the
merits of those issues. We conclude appellant‟s right to due process was violated when
his membership and privileges were revoked without prior notice and an opportunity to
present argument in response to the suggestion his privileges should be revoked. Prior to
the Board‟s suggestion that revocation was the appropriate action, appellant never had
any reason to argue the MEC‟s recommended actions were feasible and effective. Due
process required that appellant be permitted to be heard on the appropriateness of
revocation of his privileges. (See, e.g., Pinsker, supra, 12 Cal.3d at p. 555; Loudermill,
supra, 470 U.S. at p. 546.)
On the other hand, it was not a violation of due process for the JRC to deny
appellant an opportunity to present additional evidence. In the JRC‟s decision on
remand, it concluded the MEC‟s recommended actions would be ineffective or infeasible
based on the evidence presented in the previous evidentiary hearings. For example, the
JRC concluded a proposal that appellant be allowed to perform surgical procedures only
on medically “acceptable” patients was infeasible because “[i]t was demonstrated on a
recurrent basis at the JRC hearing that [appellant] has difficulties with assessments of
current health conditions.” The decision continued, “the evidence at the hearing
15
confirmed that critical questioning by peers over [appellant‟s] medical judgments
frequently resulted in anger, hostility, and belittling on [appellant‟s] part, as well as his
dismissal of the contrary views offered. These conversations [about whether a patient is
„medically “acceptable” ‟] would likely be a breeding ground for additional dispute and
contention.”
With respect to a proposal that appellant be assigned a “monitor” to assist him
with behavioral issues, the JRC concluded, “The evidence at the hearing revealed that
[appellant] almost routinely rejected the views of those who had opinions or perceptions
which differed from his own. Given this, it is difficult in the extreme to understand how
this involuntary appointee will receive cooperation from [appellant] or that [appellant]
will follow advice given.” The JRC decision concluded overall, “the facts determined at
the hearing indicate the corrective action proposed by the MEC is not sufficient to redress
the professional and behavioral concerns generated by [appellant]. After months of
hearings, volumes of documentary evidence, and the opportunity to personally evaluate
the testimony of scores of witnesses, and most especially that of [appellant], the JRC
unanimously states its conclusion and recommendation that the facts warrant revocation
of [appellant‟s] Medical Staff clinical privileges and membership at Washington
Hospital.”
Thus, the JRC concluded the MEC‟s recommended actions would be ineffective
and infeasible based on the evidence of appellant‟s disruptive and uncooperative behavior
developed during the evidentiary hearings. Appellant had ample incentive and
opportunity to counter that evidence during those hearings. Accordingly, appellant has
already had an opportunity to present evidence on the issues that were the basis for the
JRC‟s decision recommending revocation of appellant‟s privileges. We recognize there
conceivably is other evidence appellant might have presented in support of an argument
in favor of the MEC‟s recommended actions. However, in light of the fact that appellant
had ample opportunity to present evidence regarding the determinative issue of his
behavior, the failure to provide him an opportunity to present additional, less probative
evidence did not constitute a deprivation of due process. Although respondent was
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obligated to provide appellant an opportunity to respond to the suggestion his privileges
should be revoked, in light of the extensive prior proceedings and the limited nature of
the issue on remand, respondent was not obligated to permit appellant to present
additional evidence in order for him to have “a fair opportunity . . . to present his
position.” (Pinsker, supra, 12 Cal.3d at p. 556.)
Respondent contends any violation of due process was harmless because it is clear
appellant‟s privileges would have been revoked in any event. On the other hand,
appellant contends the failure to permit him to respond to the new proposed action was
reversible per se. We need not decide whether appellant‟s contention is correct, because
even if the due process violation is not reversible per se, we must reverse because we
cannot conclude the violation was harmless beyond reasonable doubt. (People v.
Woodward (1992) 4 Cal.4th 376, 387.) As noted previously, prior to the Board‟s remand
appellant never had any reason to argue in favor of the MEC‟s recommended actions; to
the contrary, his position was that the actions were not justified by his behavior.
Although it appears likely the JRC would have recommended revocation of privileges in
any event, appellant might have been able to address a number of the JRC‟s concerns had
he been provided a fair opportunity to address the feasibility and effectiveness of the
MEC‟s recommended actions. Notably, the JRC stated in its decision on remand, “In its
initial Decision, the JRC made it clear the criteria of „reasonable and warranted‟ did not
mean there was only one best or perfect answer, but allowed for differences of opinion
which could be viewed as rational choices among a range of reasonable options.” We
cannot conclude beyond a reasonable doubt that appellant could not have convinced the
JRC that the MEC‟s recommended actions were the more reasonable option. A writ of
mandate must issue directing that the revocation be set aside.6
That raises the question of the nature of the proceedings on remand. We have not
concluded appellant‟s right to due process was violated because he was not provided
6 Respondent argues in passing that appellant has forfeited this claim because he failed
to raise the issue in his pro per writ petition. In fact, appellant did complain that the JRC
did not allow further briefing and evidence following the Board remand.
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notice of the possibility of revocation at the outset of the peer review proceedings or
during the JRC proceedings leading up to the issuance of the first JRC decision. Instead,
we have merely concluded appellant was entitled to some opportunity to respond to the
suggestion that revocation was the appropriate disposition. Moreover, appellant does not
contend the absence of notice of the possibility of revocation affected how he conducted
himself in the initial JRC hearings and, therefore, the failure to provide early notice of
that possibility requires that the JRC‟s findings of fact be vacated. Accordingly, the due
process violation does not affect the findings of fact in the JRC‟s first decision. We
remand solely for the purpose of providing appellant an opportunity to present argument
on whether the JRC‟s findings justified revocation of his staff membership and hospital
privileges. Respondent may decide whether appellant‟s response is to be submitted in
person or in writing, or both, and may impose reasonable restrictions on the length of any
oral or written submission. Respondent is not obligated to permit appellant to present
additional testimony or other evidence.
V. Appellant Has Not Shown He Was Prejudiced by the Presence of Counsel for the
MEC at Some Hearing Sessions
Appellant contends it was a violation of the Bylaws and peer review statutes for
the MEC to be represented by counsel at a number of hearing sessions when he was not
also represented by counsel. Appellant has not shown he was prejudiced by any violation
of the Bylaws or statutes.
Business and Professions Code section 809.3, subdivision (c) provides, “The peer
review body shall adopt written provisions governing whether a licentiate shall have the
option of being represented by an attorney at the licentiate‟s expense. No peer review
body shall be represented by an attorney if the licentiate is not so represented . . . .” The
Bylaws provide, “Neither the member nor the MEC shall be represented in any phase of
the hearing by an attorney at law unless one party or the other requests it. In no event
shall the MEC be represented by an attorney if the member is not so represented.”
(Bylaws, art. VII, § 7.4-2.) Nevertheless, appellant asserts that the JRC permitted the
MEC to be represented by counsel for seven of the total 43 days of hearing, even though
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appellant was unrepresented and objected to MEC‟s representation by counsel. He
asserts that the sessions determined the witnesses and exhibits the parties would be
allowed to present in the evidentiary sessions. The hearing officer did not permit the
MEC to be represented by counsel during the “formal evidentiary phase” of the
proceedings.
Respondent disputes that the cited portion of the Bylaws and peer review statutes
apply to nonevidentiary phases of a peer review proceeding. We need not decide that
question because appellant has not shown that the alleged violation of the Bylaws and
peer review statutes requires that the JRC‟s findings and the Board‟s subsequent decision
be vacated.
Appellant argues the alleged violation of the Bylaws and peer review statutes
requires reversal without any showing of actual prejudice, but he cites only to cases in the
criminal and immigration contexts where defendants or persons in deportation
proceedings were denied access to counsel, or their right to be represented by counsel
was otherwise interfered with. (United States v. Cronic (1984) 466 U.S. 648, 659, fn. 25;
Montilla v. I.N.S. (2d Cir. 1991) 926 F.2d 162, 166, 169; but see Gill v. Mercy Hospital
(1988) 199 Cal.App.3d 889, 902 [“Medical staff hearings involve highly educated
individuals. There is little risk that a physician will be erroneously deprived of staff
privileges if he is not allowed counsel at the hearing. The physician‟s position is
decidedly dissimilar to that of a criminal defendant . . . .”].) In the present case, appellant
was not denied access to counsel. Instead, appellant‟s complaint is that the MEC was
permitted to be represented by counsel at about 16 percent of the hearing sessions.
Appellant has failed to support with citations to relevant authority his claim that the
alleged violation requires reversal, and he has failed to present any reasoned argument
why the presence of counsel for the MEC in those hearings rendered the proceeding
fundamentally unfair or created a likelihood of actual prejudice.
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VI. Appellant Has Not Shown a Basis for Issuance of a Writ of Mandate With Respect to
the Rao II Peer Review Proceeding
Appellant seeks issuance of a writ of mandate directing that “no subsequent
deliberations” take place in the Rao II peer review proceeding. We construe this to be a
request that the Rao II proceeding be terminated without the imposition of discipline on
him pursuant to the charges involved therein. Appellant contends the Rao II proceeding
is an attempt to interfere with his First Amendment rights. However, he fails to present
any reasoned argument with citations to authority why this court can and should deem the
proceedings concluded without imposition of discipline, prior to the issuance of any
decision. Because appellant has failed to properly support his claim for relief, we reject
his request for a writ of mandate addressing the Rao II proceeding.
DISPOSITION
The superior court‟s order denying appellant‟s petition for writ of mandate is
reversed. The superior court is directed to issue a writ of mandate instructing respondent
to set aside the revocation of appellant‟s medical staff membership and hospital
privileges and directing respondent to conduct further proceedings consistent with this
decision. The parties shall bear their own costs on appeal.
SIMONS, J.
We concur.
JONES, P.J.
BRUINIERS, J.
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