Mir v. Charter Suburban Hospital
| Decision Date | 31 August 1994 |
| Docket Number | No. B066660,B066660 |
| Citation | 33 Cal.Rptr.2d 243,27 Cal.App.4th 1471 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 63 USLW 2199 Jehan Zeb MIR, Plaintiff and Respondent, v. CHARTER SUBURBAN HOSPITAL, Defendant and Appellant. |
Weissburg and Aronson, Lowell C. Brown and Shirley J. Paine, Los Angeles, for defendant and appellant.
Russell Iungerich and Paul Spackman, Los Angeles, for plaintiff and respondent.
Jeffer, Mangels, Butler & Marmaro, Suzanne F. van Hall and Neil O. Andrus, Los Angeles, as amicus curiae on behalf of defendant and appellant.
Catherine I. Hanson and Kimberly S. Davenport, Los Angeles, as amicus curiae on behalf of plaintiff and respondent.
Defendant and appellant Charter Suburban Hospital (Hospital) appeals a postjudgment order awarding plaintiff and respondent Jehan Zeb Mir, M.D. (Mir) $45,205 in attorney fees under Business and Professions Code section 809.9. 1
The essential issue presented in this case of first impression is whether a physician who succeeds on mandamus (Code Civ.Proc. § 1094.5) in overturning a disciplinary action by a hospital on the grounds of insufficient evidence is necessarily entitled to recover costs, including attorney fees, under section 809.9. 2 , 3 Merely because the trial court on mandamus found no substantial evidence to support the Hospital's disciplinary decision and the appellate court affirmed does not establish the Hospital's defense to the petition for writ of mandate or its appeal thereafter was frivolous, unreasonable, without foundation, or in bad faith, which conduct is a prerequisite to recovery under section 809.9. The order therefore is reversed with directions.
Mir is a physician licensed to practice medicine in California and is a Board-certified cardiovascular and thoracic surgeon. He became a member of the medical staff of the Hospital, and in 1986 was given full privileges in cardiovascular and thoracic surgery and in general surgery.
On June 10, 1988, the Hospital's Medical Executive Committee filed a statement of charges against Mir and recommended his hospital privileges be terminated. Thereafter, three physician committee members of the Hospital's Judicial Review Committee heard evidence, including the testimony of an independent expert, concerning the charges against Mir. In December 1988, the Judicial Review Committee rendered its findings and decision, found against Mir only on one of the charges involving a particular patient, and recommended Mir be placed on probation for his next ten major abdominal or thoracic surgeries and his next six endoscopies performed at the Hospital.
Mir petitioned the Hospital's Board of Directors (Board) for review of the findings and decision of the Judicial Review Committee.
On April 6, 1989, Mir was served with notice the Board had reviewed his case and upheld the recommendations of the Judicial Review Committee. The Board found the Hospital's bylaws had been complied with regarding the bringing and hearing of charges against Mir so that fair procedure was had. The Board further found the Judicial Review Committee's recommendations were not arbitrary, capricious, or unreasonable because they were supported by substantial evidence in light of the whole record. The decision of the Board was final and effective immediately. The discipline recommended by the Judicial Review Committee was imposed on Mir and an "805 report" was filed with the appropriate state agency.
Thereafter, Mir filed a petition for administrative mandamus relief. (Code Civ.Proc., § 1094.5.) Mir contended the Hospital had not applied its own standards for corrective action. He further averred there was no substantial evidence to support the corrective action taken against him and the findings made by the Judicial Review Committee. Mir prayed for a writ ordering the Hospital to vacate its disciplinary decision against him and to restore his full staff privileges.
After a hearing on the petition, the trial court took the matter under submission and on January 10, 1990, issued its ruling. The trial court granted the writ, finding "there [was] no substantial evidence that anyone could have done any better ... than [Mir]", and the determination of poor medical judgment could not stand.
The Hospital appealed. Using the "substantial evidence in the light of the whole record" test required by Code of Civil Procedure section 1094.5, subdivision (d), the same standard required of the trial court, Division Two of this court affirmed in an unpublished decision.
The Supreme Court denied review.
Following the resolution of the appeal, Mir filed a motion in the trial court for an order awarding attorney fees under section 809.9. Relying on the trial court's finding of a lack of substantial evidence and the appellate court's affirmance, Mir contended the Hospital's conduct in disciplining him and later in defending that discipline was unreasonable and without foundation.
The trial court granted the motion, ruling the Hospital opposed mandamus "unreasonabl[y] and without foundation," and ordered the Hospital to pay Mir's attorney fees in the amount of $45,205.
The Hospital appeals that order.
The Hospital contends: (1) section 809.9 did not take effect until after the Hospital's decision became final and the trial court erred in applying it retroactively; (2) section 809.9 does not apply because Mir cannot properly be considered a "substantially prevailing party" in that he did not seek, nor did he obtain, damages, permanent injunctive relief or declaratory relief; (3) merely because the adverse disciplinary action was overturned does not establish the Hospital's decision to defend the section 1094.5 proceeding was frivolous, unreasonable, without foundation or in bad faith; and (4) affirmance of the trial court's order awarding Mir attorney fees would impair the ability of hospital medical staffs to protect patients through the peer review process.
Several rules regarding the application of newly enacted legislation are at issue here. First, a new statute is not to be given retroactive application unless it clearly appears the Legislature so intended. (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393, 182 P.2d 159.) Second, whether a particular cost, including attorney fees, is allowed to a litigant depends on the terms of the statute which is in force at the time the judgment is rendered, not on law which existed when the suit was commenced. (Hogan v. Ingold (1952) 38 Cal.2d 802, 814-815, 243 P.2d 1; Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 477, 304 P.2d 7.) However, this second rule does not govern if a provision in the new legislation clearly indicates the Legislature's intent such costs will not be recoverable in actions pending when the new statute becomes operative. (Hogan v. Ingold, supra, 38 Cal.2d at p. 815, 243 P.2d 1.) Application to pending suits of new statutes regarding costs is not regarded as giving retroactive effect to such legislation. (Id., at p. 814, 243 P.2d 1.)
In Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200, plaintiffs initially lost their action in the trial court but prevailed on appeal, and the case was sent back for further proceedings. Upon remand, plaintiffs filed a motion in the trial court for attorney fees. At that time, no statutory provision supported their motion, but the plaintiffs argued fees could be awarded under either a "substantial benefit" theory or a "private attorney general" theory. The trial court denied the motion and plaintiffs appealed.
While that case was on appeal, the Legislature enacted section 1021.5 of the Code of Civil Procedure, which provides explicit authority for awards of attorney fees under a private attorney general theory. That legislation became effective while the plaintiffs' attorney fees appeal was still pending. The Supreme Court held the new legislation was applicable to cases pending on appeal when the statute took effect. (Woodland Hills Residents Assn., Inc., supra, 23 Cal.3d at p. 931, 154 Cal.Rptr. 503, 593 P.2d 200; see also, Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 559, 183 Cal.Rptr. 73, 645 P.2d 124.)
Thus, section 809.9 is potentially applicable to the case at bench. The operative date of the enactment was January 1, 1990, and the trial court issued its ruling in favor of Mir on the writ petition on January 10, 1990.
There is no merit to the Hospital's contention section 809.9 indicates the Legislature did not intend the statute to apply to actions pending on its operative date. The mere fact section 809.9 became "operative" on January 1, 1990, simply indicates when trial courts could apply the new statute.
We also reject the Hospital's assertion that if section 809.9 applies to this case, it only applies to attorney fees which Mir incurred after the section became operative, i.e., after January 1, 1990. Nothing in section 809.9 supports such an argument. Further, in Woodland Hills Residents Assn., Inc., supra, 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200, the litigants were allowed to seek recovery of attorney fees they incurred at the trial level pursuant to newly enacted Code of Civil Procedure section 1021.5, even though the statute was not enacted until the case was on appeal.
In sum, section 809.9 is fully applicable to actions which were pending on its effective date.
Mir and the Hospital espouse greatly different interpretations of...
To continue reading
Request your trial
-
USS-POSCO Indus. v. Case
...section 998 to the case, which was pending on appeal when the 1997 amendment took effect]; Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471, 1477–1478, 33 Cal.Rptr.2d 243 [Business and Professions Code section 809.9, which took effect after trial court judgment became final, allo......
-
Smith v. Selma Cmty. Hosp.
...disagree on (1) the interpretation of section 809.9, (2) the proper application of the opinion in Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471, 33 Cal.Rptr.2d 243 ( Mir ), (3) the evidence that is relevant to the determination of bad faith, and (4) whether this court can de......
-
Unnamed Physician v. Board of Trustees
...kept confidential. (Goodstein, supra, 66 Cal.App.4th at pp. 1266-1267, 78 Cal.Rptr.2d 577; see also Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471, 1485, 33 Cal. Rptr.2d 243 [physicians might seek to avoid onerous burden of serving on peer review committees and become wary of p......
-
Dorsey v. Superior Court of San Diego Cnty.
...(E.g., People v. Superior Court (Arthur R. ) (1988) 199 Cal.App.3d 494, 499–500, 244 Cal.Rptr. 841 ; Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471, 1484, 33 Cal.Rptr.2d 243.)4 We obtained the legislative history on our own initiative; however, we sent a copy of the bill summar......