Kumar v. National Medical Enterprises, Inc.

• Decision Date: 14 March 1990
• Docket Number: No. F010399,F010399
• Court: California Court of Appeals Court of Appeals
• Parties: Narendra KUMAR, Plaintiff and Appellant, v. NATIONAL MEDICAL ENTERPRISES, INC., et al., Defendants and Respondents.

Page 452

267 Cal.Rptr. 452

218 Cal.App.3d 1050

Narendra KUMAR, Plaintiff and Appellant, v. NATIONAL MEDICAL ENTERPRISES, INC., et al., Defendants and Respondents.

No. F010399.

Court of Appeal, Fifth District, California.

March 14, 1990.

[218 Cal.App.3d 1051] Foreman & Brasso, Russell F. Brasso, and Jerome Berg, San Francisco, for plaintiff and appellant.

Dummit, Faber & Brown, Christopher J. Faber, and M. Eileen McGarry, Los Angeles, for defendants and respondents.

OPINION

BEST, Acting Presiding Justice.

INTRODUCTION

Appellant Narendra Kumar appeals from a judgment granting in part his petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5, subdivision (d). The petition sought to compel respondents (Hospital) to reinstate Dr. Kumar to pediatric staff privileges, including Intensive Care Nursery (ICN) privileges. In granting the petition, the trial court found Hospital's removal procedures tainted at the executive committee level, and remanded the matter for further administrative appeal hearings pursuant to Hospital's bylaws. Dr. Kumar challenges the court's remand of the matter, arguing that any judgment other than an unconditional reinstatement of full pediatric privileges was error.

FACTUAL AND PROCEDURAL HISTORY

Narendra Kumar is a physician licensed to practice medicine in the state of California. In 1982, he was appointed director of the ICN at Modesto City Hospital, a private institution governed by a board of directors. In October 1985, the Hospital's executive committee of the medical staff (Executive Committee) suspended Dr. Kumar's pediatric privileges pursuant to article VII, section 2 of the Hospital medical staff bylaws (Bylaws). The committee leveled two general charges:

(1) "Physician has exhibited numerous problems with medical management and clinical judgment at Modesto City Hospital. Such mismanagement and poor judgment has placed numerous patients in danger of significant morbidity and mortality;" and,

(2) "Physician has exhibited a pattern of disruptive, uncooperative, and abusive The charges were based on Dr. Kumar's management of a particular patient and the findings of an ongoing quality assurance review conducted by the Mid Coastal California Outreach Program and Stanford University Medical Center.

behavior towards nursing and medical staff, such that hospital functions and procedures have been disrupted and the quality of patient care has been jeopardized."

Dr. Kumar immediately brought an action in the Stanislaus County Superior Court contesting his suspension. The court denied relief for failure to exhaust administrative remedies and ordered the formation of an impartial ad hoc committee to conduct hearings in the matter as provided for in article VIII, section 1, subdivision (a) of the Bylaws.

Seven physicians were appointed to the ad hoc committee (AHC) convened in January 1986. Evidence was received over a course of 15 sessions, concluding in June 1986. Numerous witnesses, including five experts, were presented. Dr. Kumar was represented by counsel throughout the proceedings. On July 17, 1986, the AHC rendered its report and recommendations. The AHC found that Dr. Kumar had exhibited deficiencies in medical judgment, charting procedures and the performance of certain technical skills, justifying the initial suspension by the Executive Committee. The AHC did not find the evidence sufficient to support the charge of disruptive and abusive behavior toward staff.

The AHC did not find grounds for a permanent, unconditional suspension of appellant's clinical privileges. The AHC recommended reinstatement of Dr. Kumar's privileges on condition he have an annual eye examination and have his interpersonal relationships with hospital personnel monitored. Further, proctoring of all cases for six months, or, in the alternative, certification for neonatology practice at a level 2 ICN was recommended.

The Executive Committee is empowered, under the Bylaws, to recommend modification, continuance or termination of the terms of a summary suspension following consideration of the evidence and the report and recommendations of the hearing committee. The Executive Committee conducted an independent review of the evidence presented at the AHC hearings. The Executive Committee issued its report on September 12, 1986.

The Executive Committee accepted the AHC's finding that the original suspension was proper, but recommended termination of Dr. Kumar's full pediatric privileges and conditional reinstatement of general pediatric privileges. A return to full privileges, including the ICN, would be considered if Dr. Kumar successfully completed a one-year neonatology fellowship.

Dr. Kumar appealed to the governing board of directors of Modesto City Hospital (Board). That body, consisting of two doctors and two lay persons, met and reviewed the record of the AHC hearings and the Executive Committee report.

On December 1, 1986, the Board rendered its decision, adopting the conclusions of the Executive Committee and terminating appellant's pediatric privileges. Reinstatement was ordered subject to compliance with the conditions outlined by the Executive Committee except that return to full privileges, including ICN privileges, was conditioned on a six-month rather than a twelve-month fellowship in neonatology.

Claiming denial of a "fair procedure," Dr. Kumar then filed a petition for writ of mandate in the superior court requesting that the Board decision be set aside and that he be reinstated to full staff privileges. Following a hearing, the trial court granted the petition in part, setting aside the decisions of the Board and the Executive Committee, and remanding the matter to the Hospital for further proceedings without reinstating Dr. Kumar's privileges. Dr. Kumar appeals from the court's failure to unconditionally reinstate him.

DISCUSSION

The trial court granted the writ of mandate and remanded the matter back to the Executive Committee for further proceedings in accordance with Hospital's Bylaws. Dr. Kumar now challenges the trial court's failure to unconditionally reinstate him, arguing that the AHC hearings were biased and its findings unsupported by the evidence.

Dr. Kumar apparently presumes he may appeal as a matter of right. He may not. For the reasons discussed below, we deem it unnecessary to consider appellant's contentions on the merits and dismiss the appeal.

Judicial review of the decisions of private hospital boards affecting a physician's right to use the hospital's facilities is provided by administrative mandamus under Code of Civil Procedure section 1094.5. (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 814-825, 140 Cal.Rptr. 442, 567 P.2d 1162.)

Code of Civil Procedure section 1094.5 provides in pertinent part:

"(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court....

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"(f) The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in the light of the court's opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent."

"Under CCP § 1094.5(a), a writ of administrative mandamus may be issued to review an administrative decision only...