Bichai v. Dignity Health

Filed 2/25/21 Modified and Certified for Pub. 3/12/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
WILLIAM N. BICHAI,
F078658
Plaintiff and Appellant,
(Super. Ct. No. BCV-18-100629)
v.
DIGNITY HEALTH et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
Fenton Law Group, Henry R. Fenton and Dennis E. Lee for Plaintiff and
Appellant.
Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld, Joanna S.
McCallum and Colin M. McGrath for Defendant and Respondent Dignity Health.
-ooOoo-
Plaintiff William N. Bichai, M.D., reapplied for staff privileges at a hospital and
was preliminarily told his application would be granted. After Bichai disagreed with the
treatment one of his patients received at another hospital, and advocated for what Bichai
believed was medically appropriate care, the second hospital reported to the first hospital
that Bichai had interfered with a patient’s treatment. The medical executive committee of
the medical staff of the first hospital then recommended that Bichai’s reapplication for
staff privileges be denied based on his inability to control his behavior and work
cooperatively with others. Bichai sued both hospitals before the first hospital issued a
final decision in the peer review proceeding addressing his reapplication. Bichai alleged
multiple claims, including retaliation in violation of Health and Safety Code section
1278.5 (section 1278.5), a whistleblower provision that protects healthcare workers who
advocate for medically appropriate care of a patient.
This appeal arises from the trial court’s decision to sustain a demurrer filed by the
first hospital—that is, the hospital where Bichai’s reapplication for privileges was
pending. We conclude Bichai’s claims against that hospital for unfair competition and
conspiring with the second hospital to violate section 1278.5 failed to allege facts
sufficient to constitute a cause of action. The hospital had yet to take any adverse action
against plaintiff and his reapplication for privileges. The medical staff is a separate legal
entity and, thus, its recommendation to deny Bichai’s reapplication is not an act of
wrongdoing by the hospital. Consequently, a cause of action against the hospital has not
yet accrued.
We therefore affirm the judgment.
FACTS
Bichai is a licensed nephrologist and internist residing in Bakersfield and practices
medicine in the Kern County area. Defendant Dignity Health is a California corporation
that does business as Mercy Hospital in Bakersfield (Mercy Hospital). Defendant San
Joaquin Community Hospital is a California corporation that does business as Adventist
Health Bakersfield (SJC Hospital).
Bichai had privileges at Mercy Hospital from 2008 until June 2012, when, by
mutual agreement, he surrendered those privileges. Bichai obtained privileges at SJC
Hospital in 2008 and has been on a leave of absence since May 2013.
2.
In April 2016, Bichai submitted a reapplication for medical staff membership at
Mercy Hospital. Bichai completed the University of California San Diego Physician
Assessment Clinical Education (PACE) Program and, in January 2017, the PACE
Program issued its findings that he was fit for duty without accommodation.
In May 2017, the medical executive committee of the medical staff of Mercy
Hospital invited Bichai to be interviewed. During the interview, Bichai was asked
several hypothetical questions about interpersonal relationships. In August 2017, Bichai
and the chief of staff of Mercy Hospital spoke and Bichai was told he was going to be
granted privileges with some conditions. Bichai’s counsel also was informed of Mercy
Hospital’s intent to grant privileges.
Later that August, a patient of Bichai, with whom he had a long professional
relationship, suffered a heart attack while at the Rehabilitation Center of Bakersfield
(Rehab Center). The patient was taken by ambulance to the emergency room at SJC
Hospital. After being evaluated in the emergency room, the patient was admitted to SJC
Hospital under the care of Sound Hospitalist Group (Sound), which may be an entity
separate from SJC Hospital and the Adventist family of entities. The patient’s treatment
team at SJC Hospital included an attending physician and consulting physicians. The
team’s consulting physicians included Dr. Sam Singh, a cardiologist, and Dr. Amir
Mokri, a nephrologist, both of whom Bichai knew well from his time on SJC Hospital’s
medical staff.
The same night the patient was taken from Rehab Center to SJC Hospital, Bichai
telephoned SJC Hospital and informed the person he spoke with that the patient’s
hospitalist needed to address the patient’s chronic kidney issues and other health issues.
Bichai also texted information about the patient to Dr. Mokri to ensure he knew about the
patient’s kidney disease and other health issues.
During the week or longer that the patient was treated at SJC Hospital, Bichai
spoke by telephone with the members of the patient’s treatment team, except Dr. Dang, a
3.
hospitalist. On August 28, 2017, Bichai received a text message from Elizabeth Rogers,
a liaison of Rehab Center, stating that the patient was being sent from SJC Hospital to
home care with Adventist Home Health, an Adventist entity associated with SJC
Hospital. Bichai was concerned with the potential inadequacy of home health care to
help the patient’s recovery. To address this concern, Bichai contacted the patient, but
was unable to communicate effectively because the patient is a native Spanish speaker
with some English and Bichai speaks very little Spanish. Bichai then called the patient’s
son, who confirmed his father was very weak and they agreed the patient should return to
the Rehab Center, rather than return home. Based on this discussion, Bichai spoke with
the physician at SJC Hospital and recommended that the patient be returned to the Rehab
Center.
Bichai then spoke by telephone with a hospital case manager, whose job was to
coordinate care with medical providers and ensure a safe discharge plan. The case
manager informed Bichai that the patient was strong enough to go home where he would
be treated by Adventist Home Health. Bichai disagreed, set forth his concerns, and asked
to speak with the Sound hospitalist who made the determination to send the patient home.
Bichai was told the hospitalist was Dr. Dang. Bichai phoned Dr. Dang several times and
left messages, but she never returned his calls.
Bichai next phoned Sound and was referred to Dr. Dang’s boss, Dr. Ronald
Reynoso. Bichai’s declaration states: “I was stunned when Dr. Reynoso immediately
became very angry and asked why I was trying ‘so hard’ to ‘force’ the patient to ‘go to a
nursing home,’ which was an absolute and total mischaracterization of what I was trying
to do. He also accused me of harassing Dr. Dang, even though she never even called me
back or ever responded to me at any time.” Bichai explained his purpose in attempting to
contact Dr. Dang and also voiced his concern over a trend, based on many observations,
of SJC Hospital sending patients directly to another Adventist owned entity. Bichai’s
declaration states: “Dr. Reynoso angrily ignored my concerns and simply terminated the
4.
conversation by stating that he would notify the [SJC Hospital] Chief of Staff and the
Chief Medical Officer (‘CMO’) of my involvement in this ‘incident.’ ”
On September 25, 2017, the medical executive committee of Mercy Hospital’s
Medical Staff voted to recommend the denial of Bichai’s reapplication for staff
membership. On October 2, 2017, Dr. Emanuel Dozier, chief of staff, sent Bichai a letter
informing him of the proposed action and the medical executive committee’s
determinations. The letter described the information considered by the medical executive
committee, including “a recent incident at [SJC Hospital] involving the discharge of a
patient brought from The Rehabilitation Center of Bakersfield.” One of the medical
executive committee’s determinations was that Bichai “did not show that the basis for the
2012 adverse action/recommendation no longer exists and that the problems that
prompted the 2012 adverse action/recommendation have been corrected.” The letter also
informed Bichai of his right to challenge the adverse recommendation by requesting a
hearing before the judicial review committee of the medical staff. Bichai requested a
hearing.
In a November 10, 2017 letter, Dr. Dozier notified Bichai that the hearing had
been scheduled for December 12, 2017. The letter listed five charges and the related
provision of the Medical Staff’s bylaws. The first charge asserted a lack of good
judgment and stated: “As was recently demonstrated by the August 28, 2017 incident at
[SJC Hospital] when you attempted to interfere with another physician’s care of a patient,
you still have faulty judgment as to your ability to follow known rules, regulations,
policies and medical ethics when you have made a personal decision that the rules,
regulations, policies and ethics are either wrong [or] should be ignored for some greater
perceived need of yours or a patient. On that same day you sent inappropriate emails to
both the Chief of Staff and the Manager of the Medical Staff Office, again demonstrating
your lack of good judgment.” The letter’s four other charges repeated this description of
the August 28, 2017 incident and e-mails. For example, the second charge stated the
5.
incident and e-mails “again demonstrate[e] your inability to control your behavior and to
work cooperatively with others so as not to adversely affect patient care.” The second
charge did not describe, or assert the existence of, an actual adverse impact on the care of
the patient involved.
PROCEEDINGS
In March 2018, Bichai filed a complaint against Mercy Hospital. He later filed a
first amended complaint (FAC) against Mercy Hospital and SJC Hospital, which is the
operative pleading in this appeal. Bichai alleged retaliation in violation of Business and
Professions Code sections 2056 and 510 and Health and Safety Code section 1278.5,
intentional and negligent interference with prospective economic relations, unfair
competition, and conspiracy. The only causes of action asserted against Mercy Hospital
alleged (1) unfair competition in violation of Business and Professions Code section
17200 and (2) a conspiracy with SJC Hospital to retaliate against Bichai in violation of
section 1278.5. Bichai alleged the hospitals acted together as part of a scheme to deny
Bichai reappointment to Mercy Hospital’s medical staff and the scheme was effectuated
by communications from SJC Hospital to Mercy Hospital falsely accusing Bichai of
interfering with the medical care provided by another physician at SJC Hospital.
In July 2018, Mercy Hospital filed a demurrer, contending Bichai failed to exhaust
his administrative remedies as required by Westlake Community Hospital v. Superior
Court (1976) 17 Cal. 3d 465, 469 and the first amended complaint did not state facts
sufficient to constitute a cause of action against Mercy Hospital. Mercy Hospital
contended that it and the Medical Staff were separate legal entities and, therefore, Bichai
had not alleged it had taken any adverse action against him.
SJC Hospital challenged the first amended complaint by filing a general demurrer
and an anti-SLAPP motion. Bichai opposed the demurrers and the anti-SLAPP motion.
In September 2018, the trial court held a hearing addressing the pending demurrers
and motions. The court announced its tentative ruling to grant the anti-SLAPP motion as
6.
to the causes of action asserted against SJC Hospital. The court also announced its
tentative ruling to overrule Mercy Hospital’s demurrer to the extent it was based on
exhaustion of remedies and to sustain its demurrer with respect to section 1278.5
conspiracy to retaliate claim for failing to state a cause of action. The court stated it
would grant leave to file another amended complaint, but denied leave to file Bichai’s
proposed second amended complaint because it contained matters disposed of by the
ruling on the anti-SLAPP motion. The court clarified its reference to section 1278.5 by
stating Bichai’s unfair competition claim under Business and Professions Code section
17200 and the conspiracy claim were based on a violation of section 1278.5. The court
discussed the exhaustion of remedies argument by noting exhaustion is not required for a
direct section 1278.5 claim and stating it was logical to conclude exhaustion should not
be required for derivative claims, such as the conspiracy claim and the unfair competition
claim under Business and Professions Code section 17200. After hearing argument, the
court adopted its tentative ruling to grant SJC Hospital’s anti-SLAPP motion and to
sustain Mercy Hospital’s demurrer with leave to amend by October 15, 2018. Bichai did
not file an amended pleading.
On December 12, 2018, the trial court signed and filed a judgment of dismissal
stating (1) the entire action was dismissed with prejudice as to Mercy Hospital, (2)
judgment was entered in favor of Mercy Hospital and against Bichai, (3) Bichai shall take
nothing from his action against Mercy Hospital, and (4) Mercy Hospital was the
prevailing party entitled to recover its costs of suit.1 Bichai filed a timely appeal.
1 Bichai also appealed from an earlier judgment entered in favor of SJC Hospital
after its anti-SLAPP motion was granted. That appeal was assigned case No. F078599 by
this court. Oral argument in both appeals was held on February 23, 2021. Judgment in
favor of SJC Hospital was affirmed.
7.
DISCUSSION
I. BASIC PRINCIPLES
A. Demurrers
A complaint must contain “[a] statement of the facts constituting the cause of
action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).)
When a complaint “does not state facts sufficient to constitute a cause of action,” a
defendant may raise that objection by filing a demurrer. (Code Civ. Proc., § 430.10,
subd. (e).) Determining whether a pleading alleges facts sufficient to constitute a cause
of action is a question of law. (Neilson v. City of California City (2005) 133 Cal. App. 4th
1296, 1305.)
B. Standard of Review
When a general demurrer is sustained, appellate courts conduct a de novo review
to determine whether the complaint alleges facts sufficient to state a cause of action under
any possible legal theory. (City of Dinuba v. County of Tulare (2007) 41 Cal. 4th 859,
865.) A court considering a demurrer ordinarily gives the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.2 (Ibid.) The court treats
the demurrer as admitting all material facts properly pleaded, but does not assume the
truth of contentions, deductions or conclusions of law. (Ibid.) Under these principles,
appellate courts considering a demurrer are obligated to independently decide questions
of law without deference to the legal conclusions of the pleader or the trial court. (Villery
v. Department of Corrections & Rehabilitation (2016) 246 Cal. App. 4th 407, 413.)
2 When, as in this case, a plaintiff has been granted leave to amend and elects not to
file an amended pleading, appellate courts will construe the pleading strictly, based on
the rationale that the plaintiff’s election indicates he believes the pleading has stated the
strongest case possible. (Davis v. Fresno Unified School Dist. (2015) 237 Cal. App. 4th
261, 275.)
8.
As the appellant, Bichai has the burden of demonstrating the trial court committed
error in sustaining the demurrer. (Smith v. County of Kern (1993) 20 Cal. App. 4th 1826,
1829–1830.) Appellate courts affirm a judgment of dismissal if it is correct on any
ground stated in the demurrer, independent of the trial court’s stated reasons. (Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.)
II. SUFFICIENCY OF ALLEGATIONS
A. Failure of Retaliation Claim Against SJC Hospital
Mercy Hospital’s demurrer argued the FAC did not state a conspiracy cause of
action against it because no stand-alone cause of action for conspiracy exists in
California. Although the record is not entirely clear on this point, the trial court might
have concluded no cause of action for conspiracy to retaliate in violation of section
1278.5 could be stated against Mercy Hospital because (1) the order granting the anti-
SLAPP motion had eliminated that retaliation claim against SJC Hospital and (2) the
conspiracy claim was derived from and dependent upon the existence of such a claim
against SJC Hospital.
We need not address Mercy Hospital’s argument about a stand-alone conspiracy
cause of action because the present appeal is resolved on other grounds.
B. Exhaustion of Remedies
Mercy Hospital’s demurrer contended the causes of action for unfair competition
and conspiracy to retaliate were deficient because Bichai failed to allege exhaustion of
administrative remedies. Mercy Hospital cited Westlake Community Hospital v. Superior
Court, supra, 17 Cal. 3d 465 as supporting authority.
Bichai contended the requirement for exhaustion of administrative remedies does
not apply to retaliation claims under section 1278.5 or claims derived from that type of
retaliation, such as the unfair competition claim and the conspiracy claim he alleged.
Bichai supported his contention by citing Fahlen v. Sutter Central Valley Hospitals
9.
(2014) 58 Cal. 4th 655 (Fahlen) and the Fourth District’s Armin v. Riverside Community
Hospital (2016) 5 Cal. App. 5th 810 (Armin). In Fahlen, the Supreme Court held a
physician may pursue an action under section 1278.5 to challenge an allegedly retaliatory
hospital decision restricting or terminating the physician’s staff privileges without first
seeking and obtaining a mandamus petition to overturn the hospital’s decision. (Fahlen,
supra, at p. 687.) In Armin, the court extended Fahlen and concluded a physician may
pursue an action under section 1278.5 while the allegedly retaliatory peer review
proceedings that are the basis for the physician’s whistleblower claim are still pending.
(Armin, supra, at p. 828.)
The trial court considered the exhaustion argument and its tentative ruling was to
overrule the portion of Mercy Hospital’s demurrer asserting Bichai was required to allege
exhaustion of remedies to state a cause of action. The court stated it had read Fahlen and
Armin and thought “the logical conclusion is that if internal and judicial exhaustion [of]
remedies is not required for a 1278.5 claim, it should not be required for the derivative
claims as well.”
While there are plenty of statements in Fahlen and Armin to support the trial
court’s extension of those decisions to unfair competition claims and conspiracy claims
based on an alleged violation of section 1278.5, we need not address the exhaustion
question because the present appeal is resolved on other grounds.
C. Conduct of Mercy Hospital
1. Contentions
Mercy Hospital’s demurrer contended Bichai had not stated a cause of action
against it “because the only action taken in Bichai’s pending peer review matter is a
recommendation from the Medical Staff,” which is “a separate legal entity from Mercy
Hospital.” Mercy Hospital supports this contention by citing Hongsathavij v. Queen of
10.
Angels etc. Medical Center (1998) 62 Cal. App. 4th 1123 (Queen of Angels). In that case,
the Second District stated:
“Hospitals are required by law to have a medical staff association which
oversees physicians who are given staff privileges to admit patients and
practice medicine in the hospital. A hospital’s medical staff is a separate
legal entity, an unincorporated association, which is required to be self-
governing and independently responsible from the hospital for its own
duties and for policing its member physicians. (Health & Saf. Code, §§
1250, subd. (a), 32128; Cal. Code Regs., tit. 22, § 70701, subd. (a)(1)(D),
(a)(1)(F); Bus. & Prof. Code, § 2282; see Anton v. San Antonio Community
Hosp. (1977) 19 Cal. 3d 802, 809-810.) A medical staff and its M[edical
Executive Committee] operate under bylaws created by the medical staff.
(Cal. Code Regs., tit. 22, § 70703, subd. (b).)” (Id. at p. 1130, fn. 2.)
Mercy Hospital asserts a medical staff makes recommendations regarding staff
privileges and disciplinary action and a hospital’s board makes the final decision. Here,
Mercy Hospital contends it has not made a final decision and, therefore, cannot be subject
to liability yet.
Bichai contends Mercy Hospital’s argument that it has taken no adverse action
against him, and only its Medical Staff did, is of no consequence. In Bichai’s view:
“Armin held that exhaustion of administrative remedies is excused in
section 1278.5 actions, even though, by definition, the hospital itself would
not have ‘acted’ yet until those remedies were exhausted. Yet, in Armin,
the plaintiff sued both the hospital and its medical staff, but the only parties
dismissed by the court were individual doctors also named as defendants.
(Armin, supra, 5 Cal.App.5th at 832–836.)”
Bichai asserts the trial court did not reach this particular ground for the demurrer
and, if it had, the trial court, at the very least, should have granted him leave to amend to
add a new party—namely, the Medical Staff of Mercy Hospital.
2. Ripeness
As background for our analysis of the parties’ contentions about the sufficiency of
the allegations against Mercy Hospital, we consider some basic principles governing a
court’s authority to decide cases. Generally, California courts decide only justiciable
11.
controversies and do not resolve lawsuits that are not based on an actual controversy.
(Association of Irritated Residents v. Department of Conservation (2017) 11 Cal. App. 5th
1202, 1221.) Under the justiciability doctrine, unripeness and mootness describe
situations where there is no justiciable controversy. (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal. App. 4th 1559, 1573.) Unripe cases are those in which an
actual dispute or controversy has yet to come into existence. (Ibid.)
“The ripeness requirement, a branch of the doctrine of justiciability, prevents
courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental
concept that the proper role of the judiciary does not extend to the resolution of abstract
differences of legal opinion. It is in part designed to regulate the workload of courts by
preventing judicial consideration of lawsuits that seek only to obtain general guidance,
rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily
bottomed on the recognition that judicial decisionmaking is best conducted in the context
of an actual set of facts so that the issues will be framed with sufficient definiteness to
enable the court to make a decree finally disposing of the controversy.” (Pacific Legal
Foundation v. California Coastal Com. (1982) 33 Cal. 3d 158, 170.)
3. Accrual of a Cause of Action
As a general rule, a lawsuit commenced before a cause of action has accrued is
premature and cannot be maintained. (1A C.J.S. (2020) Actions, § 296.) Consistent with
this general rule, Code of Civil Procedure section 312 states that civil actions “can only
be commenced within the periods prescribed in this title, after the cause of action shall
have accrued .…” (Italics added.) A cause of action has accrued when it is complete
with all of its elements. (Fox v. Ethicon Endo-Surgery (2005) 35 Cal. 4th 797, 806.) In
generic terms, the elements of a cause of action are “wrongdoing, causation and harm.”
(Id. at p. 807.)
12.
In this case, the allegations in the FAC do not set forth any wrongdoing by Mercy
Hospital. The recommendation by the medical executive committee that Bichai’s
reapplication be denied might have been part of a conspiracy to retaliate against Bichai in
violation of section 1278.5, but the act of making that recommendation was done by a
separate legal entity, not Mercy Hospital. Consequently, Bichai’s causes of action for
unfair competition and conspiracy to retaliate have not yet accrued against Mercy
Hospital. As a result, the trial court properly sustained Mercy Hospital’s demurrer.
We have reviewed Armin, supra, 5 Cal. App. 5th 810. It does not mention Queen
of Angels and does not address the separate-legal-entity argument raised by Mercy
Hospital in this appeal. It is well established that “an opinion is not authority for a
proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal. 2d 520, 524, fn. 2.)
Under this principle, we reject Bichai’s argument and will not equate alleged wrongdoing
by its Medical Staff with wrongdoing by Mercy Hospital for purposes of Bichai’s claims
alleging conspiracy and unfair competition.
D. Leave to Amend
Bichai contends the trial court erred by failing to give him leave to file a second
amended complaint that would have added an aiding and abetting claim against Mercy
Hospital. Bichai interprets the record to mean that the trial court denied him leave to file
an amended pleading with such a claim. In response, Mercy Hospital contends Bichai is
profoundly off point because the trial court actually granted leave to amend.
The trial court’s minute order stated: “The Demurrer to the FAC is sustained for
failure to state facts sufficient to constitute a claim against Mercy Hospital. [Bichai] is
hereby given leave to file a Second Amended Complaint. [Bichai] may assert additional
causes of action against Mercy.”
During the September 18, 2018 hearing, the trial court stated it would sustain
Mercy Hospital’s demurrer for failure to state of cause of action, but would “grant leave
13.
to amend by October 15th. [¶] I’m granting leave to file an amended complaint but my
tentative is also to deny [Bichai’s] motion for leave to file the proposed second amended
complaint because I think the allegations need to change in light of my ruling on the
Motion to Strike.” Stated another way, because the proposed second amended complaint
still asserted causes of action against SJC Hospital that had been stricken, it was not
appropriate to file that proposed pleading. Instead, Bichai was given an opportunity to
file a second amended complaint that contained no causes of action against SJC Hospital.
Based on the trial court’s minute order and the reporter’s transcript of the hearing
on the demurrer, we conclude Bichai was granted leave to file a second amended
complaint against Mercy Hospital that could assert additional causes of action, such as an
aiding and abetting claim. Accordingly, we reject Bichai’s claim of reversible error
asserting he should have been granted leave to amend because he was granted leave to
amend.
DISPOSITION
The judgment is affirmed. Mercy Hospital shall recover its costs on appeal.
Mercy Hospital’s motion for judicial notice, filed October 29, 2019, is hereby
denied.
FRANSON, Acting P.J.
WE CONCUR:
PEÑA, J.
SMITH, J.
14.
Filed 3/12/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
WILLIAM N. BICHAI, M.D.,
F078658
Plaintiff and Appellant,
(Super. Ct. No. BCV-18-100629)
v.
ORDER MODIFYING OPINION
DIGNITY HEALTH et al., AND GRANTING
PUBLICATION REQUESTS
Defendants and Respondents. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on February 25, 2021, be modified as
follows:
1. On page 3, the first sentence of the first paragraph beginning “In May 2017” is
deleted and replaced with the following sentence:
In May 2017, the medical executive committee of Mercy Hospital’s
medical staff (Medical Staff) invited Bichai to be interviewed.
2. On page 5, delete “Mercy Hospital’s” from the first sentence of the first
paragraph and replace with the word “the” so the sentence now reads:
On September 25, 2017, the medical executive committee of the
Medical Staff voted to recommend the denial of Bichai’s reapplication for
staff membership.
3. On page 5, the second to last sentence of the first paragraph beginning “The
letter also” is deleted and replaced with the following:
The letter also informed Bichai of his right to challenge the adverse
recommendation by requesting a hearing before the Medical Staff’s judicial
review committee.
4. On page 6, in the last sentence of the first full paragraph beginning “In March
2018” the words “medical staff” should be revised to “Medical Staff.”
5. On page 10, the heading “1. Contentions” is deleted.
6. On page 11, the heading “2. Ripeness” is deleted.
7. On page 12, the heading “3. Accrual of a Cause of Action” is deleted.
8. On page 13, in the first full paragraph the following citation is added between
the second and third sentences, “(See Queen of Angels, supra, 62 Cal.App.4th at p. 1130, fn.
2 [hospital and hospital’s medical staff are separate legal entities].)” So the paragraph now
reads:
In this case, the allegations in the FAC do not set forth any wrongdoing
by Mercy Hospital. The recommendation by the medical executive committee
that Bichai’s reapplication be denied might have been part of a conspiracy to
retaliate against Bichai in violation of section 1278.5, but the act of making
that recommendation was done by a separate legal entity, not Mercy Hospital.
(See Queen of Angels, supra, 62 Cal.App.4th at p. 1130, fn. 2 [hospital and
hospital’s medical staff are separate legal entities].) Consequently, Bichai’s
causes of action for unfair competition and conspiracy to retaliate have not yet
accrued against Mercy Hospital. As a result, the trial court properly sustained
Mercy Hospital’s demurrer.
9. On page 13, the second paragraph beginning “We have reviewed” is deleted
and replaced with the following two paragraphs:
The reasoning and result in Armin, supra, 5 Cal. App. 5th 810, does not
convince us otherwise. In that case, the medical staff of Riverside Community
Hospital initiated a peer review proceeding against a brain surgeon, Sean
Armin. (Id. at pp. 817–818.) During the course of those proceedings, the
medical executive committee summarily suspended Armin’s privileges at the
hospital. (Id. at p. 818.) Armin requested a hearing before the judicial review
committee. (Ibid.) Before that hearing was completed and, therefore, before
the hospital’s board took final action on Armin’s privileges, Armin filed a
lawsuit alleging a cause of action under section 1278.5 and causes of action
for religious discrimination. (Armin, supra, at p. 819.) Armin named the
hospital and four individual doctors as defendants. (Id. at p. 831.) The
2.
hospital filed an anti-SLAPP motion and demurrers. (Id. at p. 819.) The
superior court granted the anti-SLAPP motion as to the section 1278.5 claim
and denied it as to the religious discrimination claims. (Armin, supra, at p.
819.) The court also overruled the demurrer to the religious discrimination
claims. (Ibid.) The appellate court reversed the order granting the anti-
SLAPP motion as to the section 1278.5 claim against the hospital and
affirmed its denial as to the religious discrimination claims. (Armin, supra, at
pp. 836–837.) The appellate court also concluded “section 1278.5 does not
allow individual doctors to be sued” and, therefore, affirmed the judgment
dismissing the four doctors from the case. (Id. at pp. 831, 835.)
In Armin, the court did not mention Queen of Angels and did not
address the argument that a hospital and its medical staff are two separate
legal entities. It is well established that “an opinion is not authority for a
proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal. 2d 520,
524, fn. 2.) Accordingly, Armin cannot be read as establishing the principle
that wrongdoing by a medical staff is wrongdoing by a hospital. Thus, we
reject Bichai’s argument to the contrary.
10. On page 14, the paragraph before the disposition is deleted and replaced with
the following:
Based on the trial court’s minute order and the reporter’s transcript of
the hearing on the demurrer, we conclude Bichai was granted leave to file a
second amended complaint. Accordingly, we reject Bichai’s claim that the
trial court erred by failing to grant him leave to amend.
There is no change in the judgment.
As the nonpublished opinion filed on February 25, 2021, in this matter hereby meets
the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is
ordered that the opinion be certified for publication in the Official Reports.
FRANSON, Acting P.J.
WE CONCUR:
PEÑA, J.
SMITH, J.
3.