Bell v. Sharp Cabrillo Hospital, D006504

• Decision Date: 01 August 1989
• Docket Number: No. D006504,D006504
• Citation: 260 Cal.Rptr. 886,212 Cal.App.3d 1034
• Court: California Court of Appeals Court of Appeals
• Parties: Bonnie BELL et al., Plaintiffs and Appellants, v. SHARP CABRILLO HOSPITAL et al., Defendants and Respondents.

Page 886

260 Cal.Rptr. 886

212 Cal.App.3d 1034

Bonnie BELL et al., Plaintiffs and Appellants, v. SHARP CABRILLO HOSPITAL et al., Defendants and Respondents.

No. D006504.

Court of Appeal, Fourth District, Division 1, California.

Aug. 1, 1989.

Miller, Boyko and Bell, Terry D. Harper and Raymond Pepper, San Diego, for plaintiffs and appellants.

McInnis, Fitzgerald, Rees, Sharkey & McIntyre, William Bailey, San Diego, Fred Cohen, Horvitz & Levy, S. Thomas Todd, Sharon Swanson and Lisa Perrochet, Encino, for defendants and respondents.

WORK, Associate Justice.

After 16 year-old Timothy Burbank died because of surgery negligently performed at Sharp Cabrillo Hospital (Hospital), his mother, Bonnie Bell, sued the hospital for having previously renewed the surgical staff privileges of Dr. Samuel E. Rosenzweig, the negligent surgeon. She asserts the hospital breached its duty to exercise reasonable care in reviewing Rosenzweig's competence when he applied for renewal of his staff privileges. Although she recovered both economic and noneconomic compensatory damages for the death of her son, she contends the trial court erred in refusing to instruct the jury on punitive damages and in reducing the award of noneconomic damages to $250,000 under CIVIL CODE SECTION 3333.2¹. As we shall explain,

we conclude neither contention has merit and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Burbank was taken to the Hospital's emergency room complaining of generalized abdominal pain. Within hours, Rosenzweig, on-call for emergency duty at that time, performed exploratory surgery resulting in complications from which Burbank died 12 days later. ² Bell's wrongful death and survival action against the Hospital alleged it consciously disregarded the safety of its patients by granting staff privileges to Rosenzweig without investigating warnings of his possible incompetence. At the end of Bell's case-in-chief, the trial court stated it would not instruct the jury on punitive damages for lack of evidence that the Hospital consciously disregarded the safety of others when reviewing Rosenzweig's application for renewal of staff privileges more than a year before this tragic event. The jury's special verdict found the Hospital's negligence in evaluating and reviewing Rosenzweig's staff privileges was a legal cause of Burbank's death and awarded $100,000 economic damages and $500,000 noneconomic damages. The trial court reduced Bell's recovery for noneconomic damages to $250,000 pursuant to section 3333.2 and also the total award by $40,000, as an offset for monies received from Rosenzweig's estate.

A. THE HOSPITAL'S PEER REVIEW REAPPLICATION PROCEDURE

The Hospital reviews each medical staff physician for reappointment every two years. Each physician reviewed submits a "reappointment questionnaire" to the Hospital's medical staff coordinator. The coordinator is a hospital employee, responsible for accumulating the questionnaires and ascertaining as to the status of each physician's license from the Board of Medical Quality Assurance (BMQA). The BMQA report identifies physicians who have reports of adverse action taken against their license or privileges at any particular hospital. ³

After the medical staff coordinator receives a physician's reappointment application, it is reviewed to determine whether the doctor had admitted an appropriate number of patients to the hospital and had completed a sufficient number of continuing medical education credits. The completed application and the BMQA report are then forwarded to the specific section or supervisory committee (i.e., surgery) to which the physician belonged. Upon review, the department forwards the application with a recommendation to the executive medical committee. Within the context of this case, if there appears to be something warranting further inquiry as to whether the physician should be reappointed, it is the chief of surgery's responsibility to make the inquiry or to appoint a committee to investigate and then offer a recommendation to the executive medical committee. After approval by the executive medical committee, the chief of staff takes a list of those physicians approved to the board of trustees, the ultimate governing body of the hospital. However, if at the executive medical committee level concerns are expressed, the matter will normally be referred back to the individual

department, where the application should go through the same process again with a more detailed inquiry and another recommendation.

B. ROSENZWEIG'S APPLICATION FOR REAPPOINTMENT OF STAFF PRIVILEGES

Rosenzweig's application for reappointment of staff privileges on May 21, 1982, sought senior staff privileges, having had courtesy privileges at the Hospital since 1968. To maintain senior staff status, a physician must handle approximately 12 cases per year.

There is no difference in competency standards between senior and courtesy staff members. Senior (and associate) members must admit a minimum number of patients to maintain their status and participate in committee and other administrative functions at the Hospital. Courtesy staff members have no administrative responsibility or minimum admittance requirement. However, some physicians who admit substantially more patients to the Hospital than the required minimum choose to remain courtesy staff to avoid the required committee and administrative duties attendant to senior status. Rosenzweig's 1982 renewal application disclosed his staff privileges at Grossmont Hospital were not renewed in 1981, because he had admitted too few patients and did not attend the required number of departmental meetings. He further disclosed his privileges at Mercy Hospital had been suspended in February 1975; his request the suspension be lifted in 1978 was denied; and revocation of his surgical privileges at Mercy was recommended in December 1979. Rosenzweig executed a release authorizing the Hospital and any appropriate medical staff committee to obtain information regarding his work at other hospitals. Finally, Rosenzweig's application revealed he did not carry medical malpractice insurance. ⁴

The BMQA report of May 17, 1982, characterized Rosenzweig's record as "clear," meaning his license was in good standing and there was no "805 Report" or complaint against him.

Dr. Edward A. Person, the Hospital's chief of surgery, was one of the individuals primarily responsible for reviewing and ultimately approving Rosenzweig's reappointment application. Emphasizing the most significant factor in the review process was an evaluation of a doctor's quality of care, Person explained he approved Rosenzweig's application in light of his long tenure (14 years) with the Hospital during which he cared for approximately 150 to 200 patients whose medical histories included only a few, very minor problems and reflecting surgical competence. In concluding Rosenzweig was competent, Person relied on his familiarity with Rosenzweig's work, the Hospital and its staff. Person assumed he would have been aware of any deficiency in Rosenzweig's work at the Hospital, in light of his long tenure since 1968 with the Hospital, and Person's conducting 90 percent of his own practice at the Hospital since he was elected chief of surgery in 1978, and his having performed surgery with Rosenzweig on one or two occasions.

Although Person was apprised of the clear BMQA report, he was also aware of Rosenzweig's disclosures regarding his failure to be reappointed at Grossmont Hospital and his suspension, denial of reinstatement and revocation of his surgical privileges at Mercy Hospital. Nevertheless, Person failed to authorize or make any contact with Mercy Hospital to determine the underlying basis for its action. First, he stated he did not believe another hospital would give that information if requested to do so and, if it did respond, be totally candid. He based this belief on his experience as a hospital staff member since 1968 and the unlikelihood he would personally respond to a request for similar information. ⁵

Moreover, Person never asked Rosenzweig directly what had happened at Mercy Hospital, because he preferred not to embarrass him, did not know whether Rosenzweig would be candid with him and felt awkward inquiring about a suspension which occurred seven years before. ⁶ Person was aware of the formal process normally followed before a suspension or revocation of a physician's privileges and, upon reviewing Rosenzweig's application for reappointment, thought about the process Rosenzweig would have had to have gone through, in all probability, before Mercy Hospital suspended and revoked his surgical privileges. ⁷

The apparent inconsistency between the clear BMQA report and Rosenzweig's reappointment application disclosing the action taken against his privileges at Mercy Hospital did not mislead Person in deciding whether to approve Rosenzweig's application. While he knew hospitals were required to file "805 Reports" whenever privileges were suspended or revoked for a period in excess of 45 days, he was also aware the BMQA records went back only 5 years. ⁸

Finally, Person testified his 1982 decision to approve renewal was reached after considering input from hospital staff (anesthesiologists, assistant surgeons and nursing staff) concerning Rosenzweig's performance during past years and the chart reviews. As to the latter, medical charts are reviewed by the medical records committee monthly. The committee reviews from 2 to 30 charts selected randomly by the medical records librarian. The committee refers anything which looks "out of sorts" to the appropriate supervisory or subject matter committee. The more surgeries a physician performs at the hospital, the better the statistical basis for determining that physician's competence. Rosenzweig only performed approximately 10 to 11 surgeries annually at the Hospital, while the average physician at the Hospital...