Safari v. Kaiser Found. Health Plan, Inc.

• Decision Date: 15 November 2012
• Docket Number: A134619
• Court: California Court of Appeals Court of Appeals
• Parties: HAMID SAFARI, Plaintiff and Appellant, v. KAISER FOUNDATION HEALTH PLAN, INC. et al., Defendants and Respondents.

HAMID SAFARI, Plaintiff and Appellant, v. KAISER FOUNDATION HEALTH PLAN, INC. et al., Defendants and Respondents.

A134619

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Filed: November 15, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. RG10551842)

Hamid Safari, M.D., appeals from the judgment denying his petition for a writ of administrative mandate directed to Kaiser Foundation Health Plan (KFHP) and Kaiser Foundation Hospitals (KFH). Dr. Safari sought a determination that the administrative peer reviewing hearing process involving KFHP and KFH (collectively, Kaiser) resulting in findings that he should no longer treat patients violated his due process rights and was not supported by substantial evidence.¹ We affirm the judgment.

BACKGROUND

Dr. Safari's Background

Dr. Safari is a perinatologist who is board-certified in both obstetrics and gynecology (OB/GYN) and maternal fetal medicine (perinatology). He completed hisfellowship in maternal fetal medicine at the University of Southern California and joined the medical staff of the KFH Medical Center in Fresno (Kaiser Fresno) in August 1997. When he joined the medical staff, he obtained privileges to practice in the hospital. In 2001, Gilbert Moran, M.D., the chief of Dr. Safari's department, ranked the quality of Dr. Safari's care as "exceptional."

The Kaiser Entities

KFHP, KFH, and The Permanente Medical Group (TPMG) provide care under the Kaiser Permanente name. Each organization makes its own decisions regarding the physicians who may be plan providers, the hospital's professional staff, and the shareholders or employees. The quality and health improvement committee (QHIC) has the authority to determine the scope of a physician's participation in KFHP and clinical privileges at the KFH hospitals in conjunction with each facility's physician professional staff, which is comprised of physicians.

Kaiser's Bylaws

Kaiser's bylaws specify the procedures for monitoring, investigating, suspending, or terminating the clinic practice of physicians. The bylaws provide that, in addition to being licensed, "[t]o qualify for, and continue membership on the Professional Staff a practitioner must": "Document and submit evidence of his or her experience, background, training, demonstrated ability, availability, and physical and mental health status, with sufficient adequacy to demonstrate to the Professional Staff and the Board that he or she will provide care to patients at the generally recognized level of professional quality, taking into account patients' needs, available hospital facilities, resources and utilization standards at the Hospital . . . ."

When there is a notice of an adverse action and the physician requests a hearing, Kaiser's bylaws provide that the chief of staff "shall appoint an ad hoc judicial review committee consisting of a chairperson and two additional members of the Professional Staff, who shall gain no direct financial benefit from the outcome, who have not acted as accusers, investigators, fact finders or initial decision makers in the same matter and who have not previously taken an active part in the consideration of the matter contested."

Kaiser's bylaws also provide for the appointment of a hearing officer. The bylaws state: "The Hearing Officer shall be an attorney at law qualified to preside over a formal hearing and preferably shall have experience in medical staff disciplinary matters. He or she shall not be biased for or against the practitioner, and shall not be an attorney who regularly advises the Professional Staff on legal matters. The Hearing Officer shall gain no direct financial benefit from the outcome, and must not act as a prosecuting officer or advocate for either side."

Kaiser's bylaws set forth the hearing officer's authority and duties as follows: "The Hearing Officer may participate in the deliberations and act as a legal advisor to the Judicial Review Committee, but he or she shall not be entitled to vote. He or she shall act to assure that all participants in the hearing have a reasonable opportunity to be heard and to present all relevant oral and documentary evidence, and that proper decorum is maintained. . . ."

Kaiser's bylaws provide that the rules of evidence during the hearing are as follows: "The rules of law relating to the examination of witnesses and presentation of evidence shall not apply in any hearing conducted hereunder. Any relevant evidence, including hearsay, shall be admitted by the Hearing Officer if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law."

Dr. Safari's Complaints about Members on a Committee

Dr. Safari served as a member of the Kaiser Fresno OB/GYN department quality assurance committee (quality assurance committee or peer review committee) for approximately four years, beginning in 1997. Varoujan Altebarmakian, M.D., the physician in chief, and chief of staff of the hospital at Kaiser Fresno, acknowledged that, at some point between 2000 and 2002, Dr. Safari expressed to him concerns about how the quality assurance committee was functioning. Dr. Safari alleged that the process of the quality review was not fair and maintained that Dr. Moran, Robert Rusche, M.D., and other doctors were not treating him fairly. He also claimed that the peer review committee was concealing significant quality problems related to "Dr. A." and "Dr. B."Dr. Safari indicated that he might go on a hunger strike if his concerns were not addressed.

Subsequently, Dr. Altebarmakian received a request from other doctors to change the structure of the peer review committee of the OB/GYN department. As a result, Dr. Altebarmakian changed the structure to have all of the members of the department represented on the peer review committee. He also removed Dr. Moran and two other doctors from their positions as chief and assistant chiefs of the department.

Thomas R. Kulterman, M.D., a Kaiser OB/GYN, met with Dr. Altebarmakian to discuss his concerns with reference to the quality assurance committee and signed a letter expressing concerns regarding the committee. Dr. Kulterman observed evidence of retaliation against Dr. Safari for complaining about the quality assurance committee. Dr. Moran, according to Dr. Kulterman, exhibited "clear animosity" towards Dr. Safari at meetings and belittled him. He also observed Dr. Moran questioning Dr. Safari's judgment at a birthing center and his comments were witnessed by numerous individuals. He also heard heated exchanges between Dr. Moran and Dr. Safari and stated that Dr. Safari did not initiate the confrontation.

Recommended Restrictions on Dr. Safari's Privileges

On April 22, 2005, Dr. Safari was the delivering physician when a mother, S.V., was giving birth to twins (the S.V. case). Dr. Safari stated that he elected to induce the delivery because the mother's "fasting sugars were all elevated and because she had two (2) prior successful deliveries." The first twin was delivered without any problem but the second twin was not progressing down the birth canal. Dr. Safari decided to use a vacuum extractor to facilitate the delivery. There were a number of vacuum applications applied and an assisting physician, Dr. A., attempted a manual rotation of the baby's head. These attempts failed and, after the vacuum was applied again, a lifeless male infant was delivered.

In July 2005, the medical executive committee recommended that Dr. Safari's privileges to do vaginal deliveries be restricted because of the S.V. case and other prior cases. The medical executive committee concluded that a vacuum delivery should nothave been done and the vigorous pull on the vacuum was inappropriate. The medical executive committee advised that a caesarean-section delivery "would have avoided fetal demise if it had been performed earlier in the vacuum extraction phase of delivery."

Dr. Safari requested a fair hearing and a judicial review committee (JRC) of three doctors convened to hear his appeal of the decision of the medical executive committee. The JRC consisted of Markham Kirsten, M.D., Chairman; Steven Chen, M.D.; and Kenneth Latt, M.D. Dr. Safari had legal counsel. The JRC heard testimony from witnesses, reviewed documents submitted by the parties, and heard verbal closing arguments. Additionally, both parties submitted closing written briefs.

The Medical Board of California (the Medical Board) also commenced an investigation of Dr. Safari's performance in the S.V. case. On March 28, 2006, the Medical Board provided a consultant review that had been prepared by Steven Polansky, M.D. Dr. Polansky wrote: "My educated guess is that this trauma occurred at either the attempts at manually rotation or if the vacuum was used to attempt to turn the vertex, which is contraindicated. It would almost have to be one or the other situation." He wrote: "In all fairness to Dr. Safari, the timing of delivery of the second twin is a subject of much debate and no full consensus but I believe that most practicing OB/GYNs would agree that 99 minutes borders on an excessive amount of time . . . . Further, there is lack of consensus as to the number of times a vacuum can be applied . . . . It appears, however, that there is a suggestion that the vacuum was applied when the vertex was barely engaged . . . and it may have been appropriate to proceed with caesarean section or at least give the patient the option."

Dr. Polansky summarized his conclusions as follows: "In summary, although some of the issues involved in the care of...