Gill v. Mercy Hospital

• Decision Date: 01 March 1988
• Docket Number: No. F008277,F008277
• Citation: 245 Cal.Rptr. 304,199 Cal.App.3d 889
• Parties: Zora S. GILL, Plaintiff and Appellant, v. MERCY HOSPITAL and the Medical Staff of Mercy Hospital, Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 304

245 Cal.Rptr. 304

199 Cal.App.3d 889

Zora S. GILL, Plaintiff and Appellant, v. MERCY HOSPITAL and the Medical Staff of Mercy Hospital, Defendants and Respondents.

No. F008277.

Court of Appeal, Fifth District, California.

March 1, 1988.

As Modified on Denial of Rehearing

March 25, 1988.

Review Denied May 18, 1988.

Certiorari Denied Oct. 11, 1988. See 109 S.Ct.227.

Lawrence Silver, Louis M. Natali, Jr. and Shelli J. Black, Beverly Hills, for plaintiff and appellant

Girard, Ellingsen, Christensen & West and Jay D. Christensen, Los Angeles, for defendants and respondents.

[199 Cal.App.3d 895] GEO. A. BROWN, Presiding Justice. ^*

Appellant, Zora Gill, M.D., appeals from a judgment of the superior court denying a petition for writ of administrative mandamus (Code Civ.Proc., § 1094.5) for review of Mercy Hospital administrative proceedings culminating in the denial to Dr. Gill of full surgical staff privileges by the board of directors of the hospital. ¹

Upon his application, Dr. Gill was granted Mercy Hospital provisional staff privileges at Mercy Hospital in the latter part of October 1983 authorizing him to do a broad spectrum of surgery with monitors. ²

In the latter part of 1984 Dr. Gill requested to be released from all surgical monitoring. The hospital, through its appropriate

committees, conducted an investigation into Dr. Gill's surgical practices which culminated on April 24, 1985, in an executive committee determination to advance Dr. Gill to courtesy staff with privileges to perform some simpler procedures without monitoring; these included hernia repair, hemorrhoidectomy, appendectomy, skin biopsy, pilonidal cysts, routine gallbladders, arterioulnoses shunts and arteriovenus fistulas performed in an extremity for access. All other general and vascular surgical procedures required the use of a monitor.

Exercising his right under the hospital bylaws, appellant requested a hearing before an ad hoc hearing committee. An ad hoc hearing committee was appointed, consisting of seven staff doctors who had not participated in any of the adverse recommendations of the executive committee, and an attorney hearing officer. The attorney's participation was limited to advice on procedural issues to assure compliance with the bylaws at the hearing. Dr. Gill appeared personally and by a physician of his choice. The medical staff was also represented by a medical doctor.

The charges, which were timely served on Dr. Gill, allege he "exhibited a pattern of substandard surgical technique for vascular and complex surgical cases" and that he "exhibits a pattern of poor medical judgment in connection with major surgical cases." These charges were supported by reference to 17 monitor reports which were presented through 6 physician witnesses.

Appellant had the opportunity to present his case and to engage in any questioning of witnesses he wished.

Following the hearing, the committee voted six-to-one in favor of the executive committee's recommendation limiting Dr. Gill's hospital privileges. In support of the decision, the committee found:

"1. Dr. Gill's performance in several cases demonstrated either significant errors in judgement [sic ] or a significant problem in technique related to major general or vascular surgery;

"2. Dr. Gill demonstrated particularly poor surgical judgement [sic ] in connection with Case # 136165, in which surgery was excessively delayed in the case of a spleen injury;

"3. Dr. Gill's monitor reports at Mercy Hospital constitute a sufficient pattern and number of reports to demonstrate that he failed to make expected improvement in surgical technique in major general and vascular cases during his tenure as a member of the provisional staff;

"4. Dr. Gill failed to adequately refute the charges contained in the Notice of Charges substantiated by monitor reports; and,

"5. Neither Dr. Gill, nor his witnesses, presented objective evidence showing excellent surgical technique and judgement [sic ] in patient care to counter the recommendation of the Executive Committee."

Pursuant to the bylaws, Dr. Gill appealed to the board of directors of the hospital. At the hearing before the board, appellant was represented by an attorney and presented additional clinical evidence in the form of a letter and report by Robert Pereyra, M.D., addressing cases which had been presented to the ad hoc hearing committee; through counsel he also presented a legal brief. In response, Dr. Deaner, representing the medical staff, presented rebuttal to Dr. Pereyra's letter.

Sister Phyllis Hughes, president of the hospital and member of the board of directors, disqualified herself from participation in the appellate process. Hughes took this action because she had written a letter regarding one of the monitored cases and was present during the deliberations of the ad hoc committee.

The board of directors upheld the ad hoc committee's decision.

This petition to the superior court followed.

DISCUSSION

Appellant raises numerous arguments in support of his prayer for reversal. We shall consider those points seriatim. However before doing so, we observe that many of his points urge a violation of constitutional due process. It is settled that when "a private association is legally required to refrain from arbitrary action, the association action must be both substantively rational and procedurally fair." (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550, 116 Cal.Rptr. 245, 526 P.2d 253.) The essence of the concept is that the action cannot be arbitrary or capricious. It is more appropriate to refer to this standard in terms of "fair procedure" in a nonconstitutional sense rather than due process in the constitutional sense. ( Id. at p. 550, fn. 7, 116 Cal.Rptr. 245, 526 P.2d 253.) The essence of the right is one of fairness. (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657, 163 Cal.Rptr. 831.)

I

Substantial Evidence

Appellant argues that substantial evidence does not support the decision. Code of Civil Procedure section 1094.5, subdivision (d) ³ establishes the substantial evidence test as the applicable standard of review. When an appellate court is reviewing a quasi-judicial decision of a governing body of a private hospital, the function of the appellate court is the same as that of the trial court in conducting the review. Therefore, this court should review the entire record to determine whether the decision is supported by substantial evidence. (See Pick v. Santa Ana-Tustin Community Hospital (1982) 130 Cal.App.3d 970, 979-980, 182 Cal.Rptr. 85; see also Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501, 210 Cal.Rptr. 788.) In this regard, we are cognizant of the strong public policy in favor of effective medical peer review by hospitals. In Unterthiner v. Desert Hospital Dist. (1983) 33 Cal.3d 285, 188 Cal.Rptr. 590, 656 P.2d 554, the Supreme Court recognized that a "doctor's license ... does not determine qualification for hospital privileges or establish competence to engage in specialties in the hospital...." Indeed, the "determination of the standards to be applied in granting privileges involves a legislative judgment and just as courts have largely deferred to administrative expertise in determining whether an applicant is qualified to practice a profession ... they should defer to administrative expertise in determining whether the professional is qualified to take on additional responsibilities involved in a grant of hospital privileges." ( Id. at p. 298, 188 Cal.Rptr. 590, 656 P.2d 554; see also Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 157, 196 Cal.Rptr. 367.)

Substantial evidence clearly supports the decisions of the hospital board, the ad hoc committee and the trial court in this case. The charges filed against appellant alleged he (1) "exhibited a pattern of substandard surgical technique for vascular and complex major surgical cases," and (2) "exhibited a pattern of poor medical judgment in connection with major surgical cases." At the ad hoc committee hearing the various physicians who prepared the monitor reports presented those reports to the committee. Patient charts and a letter from a hospital radiologist were also introduced to support the charges.

The first monitor report was presented by Dr. Deaner who observed appellant while he performed a femoral bypass. In the report, Dr. Deaner criticized appellant for using a graft that was too long. Dr. Deaner noted that because appellant had to remove a section of the graft, the procedure was lengthened 20-30 minutes.

The next case presented by Dr. Deaner involved the insertion of a graft in the left forearm of a patient. Dr. Deaner's criticism focused on the fact the graft soon failed, requiring two further surgeries to declot the graft. Although appellant was of the opinion these grafts had a 20 percent failure rate, the other physicians at the hearing felt the failure rate was actually only 5 percent.

In the third case Dr. Deaner was critical of appellant's decision to tie a knot inside an artery. Although Dr. Deaner reported appellant recognized his own error and removed the stitch, Dr. Deaner felt this was an error that should not have been made.

In the next report Dr. Deaner was critical of appellant's rough handling of tissue. In the final case presented by Dr. Deaner, he observed a tremor in appellant's hands as he began to operate. Dr. Deaner also noted that additional sutures had to be placed in the artery.

Dr. Loos was the next physician to present a series of monitor reports. In his first report, Dr. Loos was critical of appellant's choice of procedure given the patient's prior medical history. Based on the history Dr. Loos felt appellant should have concluded his chosen procedure would prove unsuccessful in the long run.

In the next report Dr. Loos had only a minor criticism involving excessive bleeding. The third case monitored by Dr. Loos...