Unnamed Physician v. Board of Trustees

• Decision Date: 01 November 2001
• Docket Number: No. F037760.,F037760.
• Citation: 93 Cal.App.4th 607,113 Cal.Rptr.2d 309
• Court: California Court of Appeals Court of Appeals
• Parties: UNNAMED PHYSICIAN,<SMALL><SUP>*</SUP></SMALL> Plaintiff and Appellant, v. BOARD OF TRUSTEES OF SAINT AGNES MEDICAL CENTER et al., Defendants and Respondents.

113 Cal.Rptr.2d 309

93 Cal.App.4th 607

UNNAMED PHYSICIAN,^* Plaintiff and Appellant, v. BOARD OF TRUSTEES OF SAINT AGNES MEDICAL CENTER et al., Defendants and Respondents.

No. F037760.

Court of Appeal, Fifth District.

November 1, 2001.

As Modified on Denial of Rehearing December 3, 2001.

Review Denied January 29, 2002.

Law Offices of Daniel O. Jamison and Daniel O. Jamison, Fresno, for Petitioner and Appellant.

S.A. Hansen & Associates, Stephen A. Hansen; Emerich, Pedreira & Fike and David R. Emerich, Fresno, for Defendants and Respondents.

OPINION

ARDAIZ, P.J.

Appellant is an unnamed physician licensed to practice medicine in California and has a board certified specialty. He has been a member of the medical staff at Saint Agnes Medical Center,¹ a nonprofit public benefit corporation since 1992, and has full privileges at the hospital.

In 2000, based on a report initiated by a reappointment survey program which indicated appellant's infection rate as being significantly higher than that of other physicians with his specialty, several of appellant's charts were flagged for peer review.² Thereafter, appellant's medical practices were reviewed by both an internal and external reviewer. The external reviewer, also with the same specialty, had no connection to appellant or respondents. Both reviews reported problems with appellant's medical practices.

The external reviewer, Dr. Raymond Berg, reported that each of the charts he reviewed "demonstrated some type of situation which might be deemed a quality of care issue. Foremost among these is an apparent excessive number of postoperative infections." Dr. Berg stated he would eliminate three cases from the fifteen he had considered as having a quality care issue which could be attributed to the physician. He then stated his conclusions as follows:

"There is a pattern in this [physician's] operative technique which is detrimental to good patient care. Whether it be lack of attention to sterile technique or careful attention to hemostasis the result is that an unusual number of patients have had disastrous outcomes from apparently well intentioned surgery. As such, the present situation should not continue and some changes should be made. This is to benefit not only the patient or hospital but to the [physician] himself. No physician should have to contend with the extra ordeal of dealing with so many serious complications, and he would benefit himself greatly in making these changes. [¶] Based upon the information provided to me in the above case reviews there is sufficient concern about patient outcomes and the surgical management and judgement of this practitioner to warrant a reduction or removal of staff privileges."

On July 12, 2000, after considering the reports of both reviewers and meeting with appellant, the Surgery Department requested an investigation of appellant's medical practices by the Medical Executive Committee of the Medical Staff³ (MEC). On July 18, 2000, the MEC proposed a recommended corrective action which would severely limit appellant's privileges at Saint Agnes. On July 19, 2000 the MEC provided notice to appellant of the proposed action. The proposed action included the following restrictions:

"(1) All surgical cases must have a second opinion by [a physician with the same or similar specialty] who performs similar cases in his/her own practice and must be approved by the Department of Surgery;

"(2) You must be assisted by a [physician with the same or similar specialty] as appropriate to the case;

"(3) You must make rounds on a daily basis and see patients in the hospital as per the Bylaws;

"(4) You must meet with and hear advice from the Infectious Disease consultant and formulate a plan for corrective action;

"(5) Exercise of your privileges shall be subject to an on-going monitoring process that includes retrospective review of all surgeries with chart review as assigned by the Chairman of the Department of Surgery, and after twenty (20) cases, the data will be reassessed."

Attached to the Notice of Proposed Action was a document entitled "Reasons for Action" which provided as follows:

"1. The Member's conduct or acts, including a pattern of conduct, where detrimental to the delivery of quality patient care within the Hospital and/or below applicable professional standards and/or contrary to Medical Staff Bylaws and/or Rules and Regulations to the extent that restrictions on privileges are necessary."

The document also contained a summary of 22 patient admissions involving 16 different patients. The summaries, although containing information concerning infections and charting deficiencies, did not contain a clear statement identifying the "acts and omissions" charged against appellant. The document further included a two-page statistical summary entitled "Reappointment Summary" and "Reappointment Profile" without explanation of the significance of the data or the method used to obtain and evaluate it.

Within 30 days of the notice, appellant requested a hearing pursuant to section 7.3-2 of the Bylaws of the Medical Staff of Saint Agnes Medical Center (bylaws). On September 1, 2000, respondents notified appellant of the date, time and place set for a hearing before the Judicial Review Committee (JRC), an administrative review committee convened pursuant to section 7.3-5 of the bylaws. In accordance with section 7.4-1 of the bylaws, numerous prehearing matters were determined by the hearing officer, including recusal of the first selected hearing officer and reappointment of a second, various challenges by appellant to the notice given, and matters relating to appellant's entitlement to certain documents related to the proceedings.

Prior to the hearing, appellant asked respondents to drop the charges, claiming they lacked specificity and thus provided legally insufficient notice. Although the request was denied, respondents provided a document entitled "Supplemental Information Concerning Charges," dated October 24, 2000, which stated that appellant's "acts and omissions caused complications and infections through either poor surgical technique or poor pre-operative assessment or poor post-operative management...." The letter referenced an additional two charts stating that during the peer review, these charts "received significant negative scoring during the `quality improvement' process and, therefore, add to the negative pattern of conduct at issue." Appellant renewed his request that the charges be dismissed before the hearing officer on numerous grounds to no avail.

After appellant's prehearing challenges were decided in favor of respondent, appellant filed a Petition for Writ of Mandate in Fresno County Superior Court on March 15, 2001, seeking review of the hearing officer's determination of the pretrial matters and a stay of the JRC hearing. The writ was denied on March 15, 2001. On March 16, the trial court refused to order the record sealed, but did order it sealed until determination of the issue by the appellate court.

On March 20, 2001, appellant petitioned this court for a Writ of Supersedeas seeking review of the trial court's order and requesting a stay of the proceedings. The petition was denied on March 28, 2001. On April 2, 2001, appellant filed a second petition seeking identical relief. The petition was denied on the same day. Appellant then sought review by the California Supreme Court. Review was denied on April 17, 2001.

On March 16, 2001, appellant filed a timely notice of appeal seeking appellate review of the trial court's order denying the writ petition. The appeal was ordered expedited on April 2. On July 19, this court reconsidered the trial court's decision not to seal the record, and ordered that the record be filed under seal.

On June 27, 2001, respondents filed with their opening brief a motion to dismiss the appeal for a failure to exhaust administrative remedies. On July 27, respondents filed a motion seeking sanctions from appellant for the filing of a frivolous appeal. Both motions have been deferred for resolution pending a decision on the merits of the appeal.

DISCUSSION

I The Statutory Scheme

We begin with an overview of the statutory scheme which lays the framework for the procedural and substantive challenges raised on appeal. Under state law, a licensed hospital facility must have "a formally organized and self-governing medical staff responsible for `the adequacy and quality of the medical care rendered to patients in the hospital.' (Cal.Code Regs., tit. 22, § 70703, subd. (a).)" (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10, 56 Cal. Rptr.2d 706, 923 P.2d 1, italics omitted; Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 826-827, 227 Cal.Rptr. 1.) The medical staff acts primarily through a number of peer review committees, which, along with other responsibilities, assess the performance of physicians currently on staff, review the need for and results of each surgery performed in the hospital, and the control of in-hospital infections. (Cal.Code Regs., tit. 22, § 70703, subds. (b) & (d).) If a peer review committee recommends that the privileges of the physician be restricted or revoked because of the manner in which he or she exercised those privileges, a series of procedural mechanisms kick into play—all governed by state law. (Bus. & Prof.Code, §§ 809, 809.8; Cal.Code Regs., tit. 22, § 70703, subd. (b).)

In 1989, the state Legislature enacted California Business and Professions Code⁴ section 809 et seq. for the purpose of opting out of the federal Health Care Quality Improvement Act of 1986 (42 U.S.C. 11101 et al.), which was passed to encourage physicians to engage in effective peer review. California chose to design a peer review system of its own, and did so with the enactment of these sections. (Stats.1989, ch. 336, § 1.) Section 809 provides generally that peer review, fairly conducted, is essential to preserving the highest standards of medical...