El-Attar v. Hollywood Presbyterian Med. Ctr.

• Decision Date: 06 June 2013
• Docket Number: No. S196830.,S196830.
• Citation: 301 P.3d 1146,56 Cal.4th 976,157 Cal.Rptr.3d 533
• Court: California Supreme Court
• Parties: Osamah EL–ATTAR, Plaintiff and Appellant, v. HOLLYWOOD PRESBYTERIAN MEDICAL CENTER, Defendant and Respondent.

56 Cal.4th 976

301 P.3d 1146

157 Cal.Rptr.3d 533

Osamah EL–ATTAR, Plaintiff and Appellant,

v.HOLLYWOOD PRESBYTERIAN MEDICAL CENTER, Defendant and Respondent.

No. S196830.

Supreme Court of California

June 6, 2013.

See8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 277.

Lurie, Zepeda, Schmalz & Hogan, Kurt L. Schmalz, Beverly Hills, and Neeru Jindal for Plaintiff and Appellant.

Law Offices of Astrid G. Meghrigian and Astrid G. Meghrigian for A.S. Moosa, M.D., as Amici Curiae on behalf of Plaintiff and Appellant.

Law Offices of Astrid G. Meghrigian and Astrid G. Meghrigian for Theodore M. Mazer, M.D., and other current or former California Chiefs of Staff as Amici Curiae on behalf of Plaintiff and Appellant.

Fancisco J. Silva, Astrid G. Meghrigian and Long X.Do for California Medical Association and American Medical Association as Amici Curiae on behalf of Plaintiff and Appellant.

Horvitz & Levy, David S. Ettinger, H. Thomas Watson, Encino; Christensen & Auer, Jay D. Christensen and Anna M. Suda, Pasadena, for Defendant and Respondent.

Arent Fox, Lowell C. Brown and Sarah G. Benator, Los Angeles, for St. Joseph Health System as Amicus Curiae on behalf of Defendant and Respondent.

DiCaro, Coppo & Popcke, Carlo Coppo, Michael R. Popcke and Shelley A. Carder, Carlsbad, for BETA Healthcare Group as Amicus Curiae on behalf of Defendant and Respondent.

Nossaman and Ann H. O'Connell for California Hospital Association as Amicus Curiae on behalf of Defendant and Respondent.

Davis Wright Tremaine and Terri D. Keville, Los Angeles, for Good Samaritan Hospital, L.P., Los Robles Regional Medical Center, San Jose Healthcare System, LP, Riverside Healthcare System, LP, and West Hills Hospital as Amici Curiae on behalf of Defendant and Respondent.

Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld and Joanna S. McCallum, Los Angeles, for Dignity Health and Adventist Health System /West as Amicus Curiae on behalf of Defendant and Respondent.

LIU, J.

Hospitals in this state have a dual structure, consisting of an administrative governing body, which oversees the operations of the hospital, and a medical staff, which provides medical services and is generally responsible for ensuring that its members provide adequate medical care to patients at the hospital.In order to practice at a hospital, a physician must be granted staff privileges.Because a hospital's decision to deny a physician staff privileges may have a significant effect on a physician's ability to practice medicine, a physician is entitled to certain procedural protections before such adverse action may be taken.( Mileikowsky v. West Hills Hospital and Medical Center(2009)45 Cal.4th 1259, 1267–1268, 91 Cal.Rptr.3d 516, 203 P.3d 1113( Mileikowsky ).)

This case arises from the decision of Hollywood Presbyterian Medical Center (Hospital) to deny Dr. Osamah El–Attar's application for reappointment to Hospital's medical staff.Dr. El–Attar requested a review hearing to challenge the decision.Pursuant to Hospital's bylaws, Hospital's medical staff, acting through its Medical Executive Committee(MEC), had the responsibility to select the hearing officer and panel members of the committee that would hear Dr. El–Attar's claim.The MEC, however, declined to exercise this authority and instead left it to the Hospital's Governing Board to do so.We granted review to determine whether this delegation of authority deprived Dr. El–Attar of the fair hearing to which he was entitled.We conclude that even if such a delegation violated Hospital's bylaws, the violation was not material and, by itself, did not deprive Dr. El–Attar of a fair hearing.Accordingly, we reverse the Court of Appeal's decision concluding that Dr. El–Attar was entitled to relief on this ground alone.

I.

In July 2002, the federal Centers for Medicare and Medicaid Services advised Hospital that unless it took corrective action to rectify certain deficiencies relating to its oversight of its quality assurance program, it would be removed from the Medicare and Medi–Cal programs.In response, the Governing Board formed an Ad Hoc Committee of the Board(AHC), which engaged two outside auditors.The AHC instructed the auditors to undertake a focused review of Dr. El–Attar's practice at the hospital.Dr. El–Attar had been identified as one of several doctors who might have engaged in a pattern of unnecessary and inappropriate consultations with patients admitted through Hospital's emergency department.He had also been one of the more outspoken critics of Hospital's management and, in particular, its chief executive officer, Albert Greene.Both auditors reviewed randomly selected patient files and identified problems with Dr. El–Attar's patient management and care.

Dr. El–Attar's appointment to Hospital's medical staff was due to expire on January 31, 2003.In the fall of 2002he submitted an application for reappointment.The MEC recommended that the application be approved.On January 28, 2003, however, the Governing Board voted to deny the application and directed Greene to summarily suspend Dr. El–Attar's clinical privileges.The Governing Board's decision to deny Dr. El–Attar's application for reappointment did not require the concurrence of the MEC.But when the MEC refused to ratify the Governing Board's decision to summarily suspend Dr. El–Attar's privileges, the suspension was automatically terminated.

On March 7, 2003, Dr. El–Attar requested a hearing to contest the Governing Board's denial of his application.Hospital's bylaws at that time provided that a judicial review hearing was to be “conducted by a Judicial Review Committee appointed by the Medical Executive Committee and composed of at least five (5) members of the Active Staff” and that the “Medical Executive Committee shall appoint a hearing officer to preside at the hearing.”

The MEC met on March 12, 2003.According to the minutes of that meeting, the MEC determined that “since the MEC did not summarily suspend [Dr. El–Attar's] privileges, did not recommend any adverse action relating to [Dr. El–Attar] ...; and since the requested hearing would be to review actions by the Governing Board; it should be the Governing Board and not the MEC which arranges and prosecutes the requested hearing.”Thus, “a motion was made, seconded and carried that [Dr. El–Attar] should be granted a Judicial Review Hearing; and that the [MEC] leaves the actions relating to the Judicial Review Hearing procedures to the Governing Board.”

On March 25, 2003, the AHC, acting on behalf of the Governing Board, issued a notice listing the six charges of misconduct that would be presented at the hearing.The notice also identified the six physicians the AHC had appointed to serve on the Judicial Review Committee(JRC) as well as the individual the AHC had selected to serve as hearing officer.

On April 18, 2003, Dr. El–Attar filed a petition for writ of mandamus and a temporary stay in superior court on the ground that it was unlawful for the Governing Board, rather than the MEC, to have appointed the members of the JRC and the hearing officer.The petition was summarily denied six days later both on the merits and because Dr. El–Attar had not yet exhausted the administrative proceedings.

The judicial review hearing commenced on May 8, 2003 with voir dire of the hearing officer and the JRC members.One member of the panel was excused, and two others subsequently resigned before any evidence was taken.The AHC appointed two replacements, and the evidentiary proceedings began.The proceedings closed on July 18, 2005 after nearly two years and approximately 30 sessions.

On October 25, 2005, the JRC issued its decision.Of the six charges against Dr. El–Attar, the JRC determined that three of them—that Dr. El–Attar had demonstrated a pattern of dangerous, unacceptable, substandard medical practice; that he had engaged in a pattern of inadequate medical record documentation; and that he had engaged in inappropriate and verbally abusive behavior with Hospital staff members—had been established by a preponderance of the evidence.It unanimously concluded that “under all the circumstances of this case, ... the ... decision of the Governing Board to deny Dr. El–Attar's application for reappointment ... was reasonable and warranted, but the Committee notes that if it had been the initial decision maker, it would have pursued an intermediate resolution.”

Dr. El–Attar appealed the JRC's decision to Hospital's appeal board, challenging it on both procedural and substantive grounds.The appeal board determined that Dr. El–Attar had received a fair hearing and that the JRC's determinations were supported by substantial evidence.Hospital's Governing Board concurred, and in August 2006 it ordered that Dr. El–Attar be terminated from the medical staff.

Dr. El–Attar filed an administrative mandate petition on October 13, 2007.Among other claims, he again asserted that he had been denied a fair proceeding because the Governing Board, rather than the MEC, had chosen the JRC members and hearing officer for his judicial review hearing.

The trial court denied the petition.It concluded that the MEC had delegated its responsibility to designate the participants in the hearing to the Governing Board and that such delegation was not specifically prohibited by Hospital's bylaws and did not violate any rule of fair procedure.It also rejected Dr. El–Attar's other procedural challenges and determined that the decision to terminate him was supported by substantial evidence.

The Court of Appeal reversed.It agreed with the trial court that the MEC had delegated to the Governing Board its authority to select the participants in the judicial review hearing.The Court of Appeal concluded, however, that Hospital's bylaws precluded the MEC from delegating its authority in this fashion.The court explained that “[a]llowing the Governing Board to select the hearing...