Bollengier v. Doctors Medical Center

• Citation: 272 Cal.Rptr. 273,222 Cal.App.3d 1115
• Decision Date: 30 July 1990
• Docket Number: Nos. F012076,F012062,s. F012076
• Court: California Court of Appeals
• Parties: William E. BOLLENGIER, Plaintiff and Appellant, v. DOCTORS MEDICAL CENTER et al., Defendants and Respondents. William E. BOLLENGIER, Petitioner, v. The SUPERIOR COURT of Stanislaus County, Respondent, DOCTORS MEDICAL CENTER et al., Real Parties in Interest.

Page 273

272 Cal.Rptr. 273

222 Cal.App.3d 1115

William E. BOLLENGIER, Plaintiff and Appellant, v. DOCTORS MEDICAL CENTER et al., Defendants and Respondents.

William E. BOLLENGIER, Petitioner, v. The SUPERIOR COURT of Stanislaus County, Respondent, DOCTORS MEDICAL CENTER et al., Real Parties in Interest.

Nos. F012076, F012062.

Court of Appeal, Fifth District, California.

July 30, 1990.

[222 Cal.App.3d 1120] Farella, Braun & Martel, Bruce R. MacLeod and Dennis M. Cusack, San Francisco, for plaintiff, appellant and petitioner.

Ellingsen, Christensen & van Hall, Jay D. Christensen, Frank A. Uribie and Lowell C. Brown, Los Angeles, for defendants, respondents and real parties in interest.

No appearance by respondent Superior Court of Stanislaus County.

OPINION

FRANSON, Presiding Justice.

STATEMENT OF THE CASE AND FACTS

On July 20, 1988, real party in interest Doctors Medical Center (DMC) summarily suspended all of petitioner Dr. William E. Bollengier's medical staff privileges. Petitioner, a cardiothoracic surgeon, had been on the DMC medical staff for 12 years. The suspension notice stated, "In general, the reasons for this suspension are that your inability to work with others in the hospital presents a real and substantial danger to patient care."

The suspension was authorized by Raymond Shamp, M.D., and J. Douglas Dent, the chief executive officer of DMC. At the time of the suspension, the department of surgery had two co-chairmen, Dr. Shamp and Dr. L. Raymond Cimino.

Petitioner requested an informal interview with the medical executive committee which took place on July 29, 1988. At this interview Mr. Dent presented the grounds for the summary suspension. Mr. Dent and Dr. Shamp were then excused, and petitioner responded to the allegations. Thereafter, by a vote of ten to one with one abstention, the executive committee took further action to sustain the summary suspension by converting it to a revocation of all of petitioner's medical staff privileges. Petitioner was informed of this decision the same day by letter. He was also advised that under the medical staff bylaws he had the right to request a hearing before the medical review committee within 30 days and, if a hearing were requested, to receive a concise statement of charges or reasons.

Petitioner requested a review committee hearing on August 26, 1988, and thereafter received the statement of charges on September 9. This statement initially specified 74 incidents in support of the charges of misconduct. However, after being revised in January 1989, it specified 91 such incidents.

Petitioner asked to appear before the executive committee again and was invited to do so on October 28, 1988. Petitioner presented his comments regarding the suspension and "pledged to do everything in his power to give patients the appropriate level of care and maintain the appropriate rapport with other physicians, the nursing staff and administration." The executive committee concluded that petitioner's presentation did not provide any significant new information, and thus, the executive committee did not alter its previous decision.

A hearing officer was appointed to preside over the review committee hearing. On December 21, 1988, a special "law and motion" hearing was held. At that time petitioner raised a number of challenges to the procedural validity of the charges. However, the hearing officer concluded that neither he nor the medical review committee had the power under the bylaws to dismiss the charges for procedural defects. Rather, the review committee could dismiss the charges if the evidence at the hearing did not support them. The hearing officer further found that, although Drs. Shamp and Cimino co-chaired the department of surgery, Dr. Shamp had the authority to summarily suspend petitioner without the concurrence of Dr. Cimino.

On February 15, 1989, before the first session of the review committee hearing, petitioner sought an alternative writ of mandate under Code of Civil Procedure section 1085 ¹ from the superior court. In his writ petition and memorandum, petitioner argued that he should not be required to stand trial on charges which were procedurally defective. The petition alleged that Dr. Shamp and Mr. Dent had neither the authority nor the requisite grounds to suspend petitioner and that the charges were invalid per se because the incidents listed in the statement of charges had been specified by DMC's attorney without prior review or approval by the executive committee. The superior court denied petitioner's writ application on the ground that he had not exhausted his administrative remedies.

By letters dated February 24, 1989, petitioner requested both the executive committee and the governing board of DMC to lift his suspension and vacate the pending charges based on the alleged procedural irregularities. The executive committee responded that it did not elect to terminate the suspension or withdraw the charges and further found no basis to conclude any procedural defect existed. The governing board responded that pursuant to the bylaws it was precluded from taking any action until after the time for requesting an appellate review.

Petitioner has both appealed from the superior court's denial of his writ petition and petitioned this court for mandamus relief. These proceedings have been consolidated. However, the superior court's denial of the writ petition is an appealable order. (Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 190-191, 205 Cal.Rptr. 433.) The writ petition and the appeal both challenge the superior court's order. Thus, the writ can be denied on the ground that there is an adequate remedy at law. (Malibu West Swimming Club v. Flournoy (1976) 60 Cal.App.3d 161, 164, 131 Cal.Rptr. 279.)

The parties present extensive arguments regarding the facts surrounding the suspension and provide conflicting evidence to support their respective positions. Petitioner presents evidence of his outstanding surgical skill and "legendary" patient care. He alleges the suspension was economically motivated. In contrast, DMC sets forth evidence of petitioner's "gross misconduct" and concludes the summary suspension was necessary to protect patients and others from petitioner. Factual findings have not yet been made in this case and, as is evident from the arguments, many of the facts are hotly contested. This court cannot make the required factual determinations. (Larson v. Thoresen (1951) 36 Cal.2d 666, 670, 226 P.2d 571.) Thus, all of the discussion and exhibits regarding the disputed facts are irrelevant to the issues before us.

Objections and Request for Judicial Notice

DMC has presented objections to the admission of portions of the declarations submitted by petitioner. All of the objected to statements pertain to disputed facts surrounding petitioner's suspension. Thus, these objections are sustained on the ground that the exhibits are irrelevant to this writ proceeding and appeal.

DMC has also requested this court to take judicial notice of the medical review committee hearing transcript involving petitioner, model medical staff bylaws prepared for the California Hospital Association and the California Medical Association and a page from the Accreditation Manual for Hospitals. This request is also denied on the ground of irrelevancy. DMC has submitted the hearing transcript to "confirm factual information regarding petitioner's practice and the reasons for his summary suspension." However, as noted above, factual findings regarding the suspension have not been made, and thus, any such evidence presented by the parties is irrelevant. The model medical staff bylaws and accreditation manual section, submitted as evidence of the validity of DMC's bylaws, are also irrelevant. Petitioner is not contesting the validity of the medical staff bylaws as written but rather contends that the bylaws were not followed.

DISCUSSION

I. The exhaustion of administrative remedies doctrine bars this proceeding.

Petitioner contends the trial court's holding that the doctrine of exhaustion of administrative remedies barred the petition for writ of mandate was an error of law. Although petitioner is requesting review of an administrative proceeding, he is seeking traditional mandamus under section 1085 rather than administrative mandamus under section 1094.5. DMC contends neither section is applicable. Thus, a threshold issue is which, if either, form of mandamus is applicable to the proceeding at this juncture.

"A traditional writ of mandate under section 1085 is a method of compelling the performance of a legal, usually ministerial duty, whereas the purpose of an administrative mandamus proceeding, under section 1094.5, is to review the final adjudicative action of an administrative body." (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 808, 165 Cal.Rptr. 908.) However, mandamus under section 1094.5 is not removed from the general law of mandamus or exempted from the established principles, requirements and limitations pertaining to traditional mandamus. "The full panoply of rules applicable to 'ordinary' mandamus applies to 'administrative' mandamus proceedings, except where modified by statute." (Woods v. Superior Court (1981) 28 Cal.3d 668, 673-674, 170 Cal.Rptr. 484, 620 P.2d 1032.)

"California has consistently differentiated 'legislative' and 'adjudicatory' actions and the manner in which they may be reviewed." (Saleeby v. State Bar (1985) 39 Cal.3d 547, 560, 216 Cal.Rptr. 367, 702 P.2d 525.) Adjudicatory matters are those in which the government's action affecting an individual is determined by facts peculiar to the individual case, whereas legislative decisions involve the adoption of a " ' "broad, generally applicable rule of conduct on the basis of general public policy." ' " (Ibid.) Section 1094.5, administrative mandamus, is used to review adjudicatory determinations and is not available...