Rosenblit v. Superior Court

• Decision Date: 28 June 1991
• Docket Number: No. G008913,G008913
• Citation: 282 Cal.Rptr. 819,231 Cal.App.3d 1434
• Court: California Court of Appeals Court of Appeals
• Parties: Paul D. ROSENBLIT, M.D., Plaintiff and Appellant, v. The SUPERIOR COURT of Orange County, Defendant and Respondent; FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER, Real Party in Interest and Respondent.

Page 819

282 Cal.Rptr. 819

231 Cal.App.3d 1434

Paul D. ROSENBLIT, M.D., Plaintiff and Appellant, v. The SUPERIOR COURT of Orange County, Defendant and Respondent;

FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER, Real Party in Interest and Respondent.

No. G008913.

Court of Appeal, Fourth District, Division 3, California.

June 28, 1991.

As Modified July 26, 1991.

Review Denied Sept. 19, 1991.

[231 Cal.App.3d 1437] Paul D. Rosenblit, in pro. per.

No appearance for respondent.

Weissburg and Aronson, Mark A. Kadzielski and Lowell C. Brown, Los Angeles, for real party in interest and respondent.

Catherine I. Hanson, San Francisco, for amicus curiae.

OPINION

WALLIN, Associate Justice.

Dr. Paul Rosenblit appeals the denial of his petition for a writ of mandate to compel Fountain Valley Regional Hospital and Medical Center (Hospital) to reinstate his medical staff membership and clinical privileges. The trial court specifically rejected the doctor's claim he was denied a fair hearing. However, the California Medical Association (CMA) filed a compelling amicus brief urging us to remand the case to the superior court to grant the petition and direct Hospital to afford Rosenblit a fair procedure. Having independently reviewed the fairness of the administrative proceedings as a question of law, we agree with CMA and reverse.

* * * * * *

Dr. Paul Rosenblit, an endocrinologist, obtained medical staff privileges at Hospital in 1986. He subscribes to a method for managing diabetes which is different from the approach used by his colleagues on staff at Hospital. In June 1987 one of his patients died, triggering a review by a Hospital committee. In August, Rosenblit was informed that he would be proctored on all of his admissions and consultations purportedly because there were problems with his fluid and diabetic management in some cases.

On January 28, 1988, a newly appointed executive committee of Hospital staff summarily suspended Rosenblit's staff privileges "due to poor clinical judgment and violation of Medical Staff Bylaws regarding providing coverage for the care of patients when not available." By letter dated February 2, Hospital provided Rosenblit a list of 30 charts "which were reviewed and found to have problems in one or more of the following: a) fluid management b) diabetic management c) clinical judgment." Rosenblit made a timely request for a review hearing under Hospital bylaws.

On February 16, Hospital notified Rosenblit the hearing had been scheduled for March 9 and legal counsel would not be allowed. By letters dated February 17 and February 22, Rosenblit, through counsel, requested a more complete statement of the charges, including the specific acts or omissions alleged, as required by Hospital bylaws. He also demanded: A list of the proposed members of the review committee to enable him to prepare questions to uncover any conflict or bias; a list of witnesses; copies of all medical charts and records for his own and his experts' review; and a postponement of the hearing because of the inadequacy of the notice of the alleged misconduct. Rosenblit, also through counsel, objected to the denial of the right to have his attorney present at the review hearing and to the composition of the hearing panel.

On February 25, Hospital insisted Rosenblit had been given adequate notice of the charges and was not entitled to approve the members of the hearing panel. Hospital rejected the request for a postponement without a proper showing of good cause. Rosenblit's lawyer's third letter to Hospital reflects the tone of the proceedings at these early stages: "I have read with interest your letter of February 25, 1988. Your knowledge of the law applicable to the rights of a physician in peer review is obviously limited. That observation is at best kind. I would strongly suggest that you consult with your hospital counsel before addressing any further legal issues. [p] A list of the proposed members of the Judicial Review Committee shall be provided before we proceed in this matter. Your bylaws are not controlling when we are dealing with the procedural due process rights of Dr. Rosenblit. Your interpretation is of no value. It is the court's application of the law which dictates the procedure and process in these matters. Each physician, including you, has the right to challenge the make-up of his jury. If you violate this basic right then the proceeding is void ab initio. [p] Addressing your proper notice of charges, the same is defective. The language used by Mr. Szekrenyi suggests three areas of concern. Perhaps we could take the guess work [sic ] out of his February 2nd letter! We expect and demand that you set forth the charge as to each case so that Dr. Rosenblit can prepare specific responses to the alleged misconduct."

Rosenblit echoed the same objections in his personal letter of March 3. He had requested reviewer comments on the problem charts to provide him the opportunity to prepare his defense. These requests had been denied. Rosenblit writes: "You have set a date for the hearing. Your date could have been reasonable had you complied with my request for reviewer comments on the 30 charts, in order for me to defend the alleged 'problems'. Furthermore, my 'witnesses' must have copies of the charts for review. I find your negligence in complying with my requests at a minimum, suspicious."

Again Hospital refused to postpone the hearing. On March 4, Hospital notified Rosenblit he had not made a sufficient showing of good cause to justify a postponement. Dr. Harold Kravitz, chief of staff, concluded: "As regards the list of cases with chart numbers we have sent to you in the past: to be more specific all of the charts have problems in diabetic management and clinical judgment." Kravitz then listed four charts representative of problems in fluid management.

In an almost desperate attempt to save his career, Rosenblit again wrote to Hospital on March 7 begging for more information about the problem charts. "As you know, Dr. Eilbert convinced the majority of executive committee members, many of whom had no knowledge of preceeding [sic ] meetings, that there were 30 charts with alleged problems. I found no hypoglycemia or no fluid management involved in the following charts. I must assume that there is an 'alleged' problem with clinical judgement [sic ].... Please take the guesswork out of these charts and present me 'in writing, in concise language, the acts or omissions with which' ... I am ... charged (Article VIII, Part B, Section 5)." On the date of the scheduled hearing, Hospital granted Rosenblit a postponement assertedly because one of his witnesses would be unavailable and assented to a disclosure of the requested comments. The comments on 14 charts were provided on March 14 and the hearing was scheduled for April 7.

Hospital never provided Rosenblit with copies of the problem charts. Eventually he was allowed access to them and prepared detailed summaries from his own inspection. One of his expert witnesses would not testify without the opportunity to personally review the charts. Hospital was asked several times, in writing, to provide copies. Since Rosenblit did not specifically request Hospital to provide his expert witnesses access to the charts, Hospital now contends that if such a request had been made, it would have been granted, even though it did not suggest this possibility in any one of its many letters refusing to provide copies. Eventually, Rosenblit's primary expert's credibility was challenged for his failure to review the charts Hospital refused to copy.

On the rescheduled hearing date, Hospital notified Rosenblit the hearing would be postponed for the convenience of a member of the panel. The hearing finally convened on April 28. Rosenblit provided the hearing officer with eight written questions he wanted to ask each member of the hearing panel to determine individual or collective bias. The panel met secretly for approximately 25 minutes, after which the hearing officer reported he was satisfied that each member felt he was not biased and could afford Rosenblit a fair hearing. These discussions were not recorded. Following the hearing officer's report on the result of the secret voir dire of the panel by the panel, he stated: "Dr. Rosenblit, since you have raised this issue, you do have the right to question any of the panel members if you feel that that's necessary so that you are satisfied in your own mind before this hearing proceeds that the panel is not biased or prejudiced against you, and that they can give you a fair hearing." Rosenblit replied, "I am satisfied."

The hearing was adjourned with an agreement to reconvene as soon as possible, and on May 10, Hospital unilaterally announced it would be held on June 16. A case-by-case analysis of the problem charts was conducted. Rosenblit presented an extensive defense, personally testifying to refute the charges and introducing expert opinion and medical journals and treatises.

On June 30, the hearing panel rendered its findings and recommendations. The panel found that Rosenblit had not shown that his suspension based on his "exercise of poor clinical judgment was made unreasonably, not sustained by the evidence, or unfounded. [Sic.]" The panel did find he had sustained his burden of proving he had not violated the medical staff by-laws regarding his responsibility to provide coverage for the care of his patients when he was not available.

On August 8, Rosenblit was informed the medical staff executive committee had reviewed the findings and recommendations of the hearing panel and based thereon, he was to remain on temporary suspension pending a review by three independent endocrinologists. Rosenblit filed a timely request for appellate review of the committee's decision, but simultaneously requested the appellate proceedings be stayed pending the results of the independent endocrinologists' review....