Applebaum v. Board of Directors
| Decision Date | 15 April 1980 |
| Citation | 104 Cal.App.3d 648,163 Cal.Rptr. 831 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Jeffrey APPLEBAUM, M.D., Plaintiff and Respondent, v. BOARD OF DIRECTORS OF BARTON MEMORIAL HOSPITAL, Defendant and Appellant. Civ. 18455. |
Horan, Lloyd & Karachale, Monterey, Charles G. Warner, for plaintiff and respondent.
Wilke, Fleury, Hoffelt & Gray, Joe S. Gray and Alan G. Perkins, Sacramento, for defendant and appellant.
A private hospital board (hereinafter Hospital) appeals from a judgment granting a doctor's petition for a writ of administrative mandamus (Code Civ.Proc., § 1094.5) compelling restoration of his obstetrical staff privileges. The hospital asserts the vitality of the peer review concept. Its principal argument is that the trial court erred in its conclusion that the hospital procedures are impermissibly unfair. We affirm the judgment.
Plaintiff is a licensed physician and a board certified family practitioner. He began private practice in the South Lake Tahoe area in 1976, became an associate staff member at the hospital in May of that year, and was accepted as an active staff member a year later.
The hospital is a private, nonprofit institution with an open medical staff. In January of 1978, there were 14 general and family practitioners on the staff. Five doctors, including plaintiff, had obstetrical privileges at the hospital. Two of the five, Drs. Furman and Hembrow, were board certified specialists in obstetrics; they were also associated in their practice. Two general practitioners and plaintiff had privileges for uncomplicated deliveries only; they were expected to consult with specialists in nonroutine cases. There were also two pediatricians on the department staff.
The present controversy began when the head nurse and the night supervisor in obstetrics expressed concern about plaintiff's delivery techniques to the hospital administrator and to Dr. Furman. Furman wrote to the hospital's chief of staff transmitting the nurses' complaints and requesting an investigation pursuant to the hospital's bylaws. As grounds for his request, Furman listed incompetence in the performance of deliveries and care of the newborn, unauthorized use of experimental drugs, falsification of medical records, improper conduct of labor, and the performance of procedures exceeding granted privileges.
The matter was discussed at a meeting of the executive committee of the hospital on September 29, 1977. Both Furman, as Chief of Surgery, and Hembrow, as Chief of Obstetrics, were members of the committee. Furman refrained from voting on decisions concerning plaintiff's privileges at all stages of hospital proceedings. An ad hoc committee, composed of the six physician members of the obstetrics department, including Furman and Hembrow, was appointed by the chief of staff to investigate the charges against plaintiff. Furman was asked to chair the committee but he declined to act in that capacity.
The ad hoc committee met on October 3. Dr. Furman presented his letter and those from the nurses. He also discussed eight patient records in which he found problems with plaintiff's treatment. Drs. Auerback and McFarren, pediatricians, commented unfavorably on five patient records and Auerback expressed his feeling that plaintiff at times treated cases which were beyond his expertise as a family practitioner. Dr. Hembrow commented that he had seen plaintiff perform some procedures in a way he felt showed "gross inexperience in most instances."
When plaintiff appeared before the committee, he objected to the charges in Furman's letter as vague and to the failure of the bylaws to allow him representation at the meeting. He also claimed the presence of Furman and Hembrow on the committee destroyed its impartiality because their feelings were adverse to him. Dr. Furman then led the committee's question of plaintiff concerning his use of drugs not approved by the F.D.A., lack of consultation with other doctors on some problems and delivery of breech babies. Plaintiff told the committee that he used the non-F.D.A. approved drugs only on two patients who had been placed on the medication previously by Sacramento obstetricians and on one patient after a telephone consultation with Sacramento Medical Center personnel. He also commented on the difficulties of obtaining consultations from Dr. Hembrow on patients receiving Medi-Cal benefits and on Dr. Furman's criticism of his handling of case in which he had asked Furman to assist. Plaintiff had previously (Aug. 18, 1977) written a letter to the executive committee pointing out the lack of adequate consultation from obstetricians for Medi-Cal patients. At the conclusion of the meeting plaintiff indicated his willingness to follow more detailed guidelines for obstetrics and to undergo a trial period provided consultation was made available to him.
The ad hoc committee agreed plaintiff had shown evidence of poor medical judgment and incompetence in the performance of deliveries and care of the newborn in that he had used experimental drugs without proper authorization and mismanaged labor by excessive use of drugs and improper combinations of drugs. It found plaintiff performed contraindicated procedures, procedures in excess of his privileges for uncomplicated deliveries, and failed to obtain proper consultation. A majority of the ad hoc committee recommended to the executive committee that plaintiff's obstetrical privileges be suspended after he had completed the care of patients presently at 32 weeks' gestation and delivered them under the supervision of other physicians in the obstetrics department.
The ad hoc committee's report was submitted to a meeting of the executive committee on November 22 after the members of the executive committee had been given time to review the transcript of the ad hoc committee hearing. Five of the members of the ad hoc committee (all but Dr. McFarren) attended the executive committee meeting; six other physicians and the hospital administrator were also present. The executive committee interviewed plaintiff and discussed possible recommendations limiting his staff privileges in obstetrics. It reconvened on November 29, and after further discussion decided that plaintiff should perform all deliveries until January 1, 1978 with another member of the obstetrics staff and place the newborns under the supervision of the pediatrics service, and that after January 1, 1980, plaintiff's obstetrical privileges would be suspended until he had completed further training satisfactory to the executive committee and served a probationary period in which he would transfer primary care of any nonroutine delivery to another member of the obstetrics staff.
On December 6, 1977, the hospital administrator wrote to plaintiff informing him of the executive committee's recommendation and summarily suspending him in accordance with the terms of the recommendation. The letter included the executive committee's findings that plaintiff had failed to obtain pediatric consultations in 13 specified cases, failed to obtain obstetrical consultations in 34 cases, demonstrated incompetent techniques in delivery and resuscitation in two cases, used improper drugs inappropriately in three cases, exceeded his privileges by using a vacuum extractor in two cases, and used dangerous combinations of high doses of narcotics and narcotic antagonists in three cases. Patient record numbers were given for each of the charges. The executive committee later deferred the January 1 suspension until a recommendation from the medical staff appeal committee was received.
Plaintiff then requested review of the executive committee's decision by a medical staff appeal committee pursuant to the hospital bylaws. Members of the appeal committee were three physicians not previously involved in the dispute. The committee held formal hearings on January 11 and January 28, 1978; it heard testimony from the hospital administrator, plaintiff, Dr. Furman, the two general practitioner members of the obstetrics staff, an expert for the hospital, and one for plaintiff.
On January 19, 1978, between the two appeal committee meetings, Dr. Furman wrote to plaintiff informing him he would no longer do consultations. Furman's letter was presented to the appeal committee as an exhibit.
After the lunch break at the second meeting of the appeal committee, counsel for the hospital asked that the record reflect the composition of the executive committee had changed after the appeal committee was appointed and asked the two appeal committee members who were now also serving on the executive committee to indicate they would refrain from taking part in the executive committee's future consideration of plaintiff's hospital privileges. The two members agreed. Counsel indicated the question of overlapping membership had been raised by plaintiff in an unsuccessful attempt to obtain a writ of mandate from the superior court the day before the second appeal committee meeting.
Counsel for plaintiff told the committee that one basis for the writ application was his concern that the members on the appeal committee may have been influenced by discussions about plaintiff at the January 24 meeting of the executive committee. Plaintiff had attempted to obtain a tape recording of the meeting but had not been able to do so. None of the committee members made any comment on this information and the hearing proceeded.
The appeal committee voted agreement with the recommendation that plaintiff's obstetrical staff privileges be suspended and the executive committee ratified the decision on January 30, 1978.
Plaintiff filed his writ petition in superior court on February 1, 1978, contending that the hospital proceedings violated due process of law...
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