Unterthiner v. Desert Hospital Dist.

• Citation: 656 P.2d 554,188 Cal.Rptr. 590,33 Cal.3d 285
• Parties: , 656 P.2d 554 Rudi A. UNTERTHINER, Plaintiff and Respondent, v. DESERT HOSPITAL DISTRICT OF PALM SPRINGS, Defendant and Appellant. L.A. 31469.
• Decision Date: 24 January 1983
• Court: United States State Supreme Court (California)

Page 590

188 Cal.Rptr. 590

33 Cal.3d 285, 656 P.2d 554

Rudi A. UNTERTHINER, Plaintiff and Respondent, v. DESERT HOSPITAL DISTRICT OF PALM SPRINGS, Defendant and Appellant.

L.A. 31469.

Supreme Court of California,

In Bank.

Jan. 24, 1983.

A. Burrell Wiedeman, Constance R. Wiedeman, Honolulu, Hawaii, for plaintiff and respondent.

Musick, Peeler & Garrett, Joseph A. Saunders, Jay D. Christensen, Los Angeles, for defendant and appellant.

BROUSSARD, Justice.

Desert Hospital District of Palm Springs appeals from a judgment granting a petition for writ of mandate directing it to set aside its order denying Rudi A. Unterthiner, M.D., admission to its medical staff and directing it to admit him.

Dr. Unterthiner, a plastic and reconstructive surgeon, applied to Desert Hospital for medical staff membership and clinical privileges for more than 20 surgical procedures. Although almost all of his cosmetic surgery is performed in his office, access to hospital facilities is required for reconstructive surgery. The hospital sent inquiry letters to various hospitals and doctors. While most of the responses were extremely favorable, others were equally derogatory. After hearings, denial of his application was recommended successively by the credentials committee, the executive committee, the ad hoc committee, and a hearing officer appointed by the hospital's board of directors. The board adopted the hearing officer's recommendation.

The hearing officer determined that Dr. Unterthiner was untruthful in the preparation and filing of his application for staff membership, that he was untruthful in his testimony during the hearing, and that he failed to satisfy ethical standards.

The trial court first found that Dr. Unterthiner did not receive a fair hearing and that he was competent. The court entered an interim order that he be granted clinical privileges for a period of eight months to secure current information as to his ability and reliability. The court also ordered that depositions be taken from three doctors who had written very derogatory letters to the hospital but had not testified. The district appealed, and the Court of Appeal, in an unpublished opinion, reversed the order granting interim clinical privileges.

The trial court then determined that the denial of staff membership was not based on false answers but on derogatory comments of the three doctors, that their letters did not warrant denial of staff privileges, that Dr. Unterthiner did not receive a fair hearing and would not receive one if the matter were returned to the district, and that he was competent. The court concluded that he had been arbitrarily excluded from staff membership and ordered the district to admit him to membership.

After graduation from medical school at the University of Alberta, Dr. Unterthiner took his internship at the University of British Columbia, Vancouver Hospital. From 1968 to 1970 he served a two-year surgical residency at Santa Barbara General Hospital and Cottage Hospital, Santa Barbara. His contract was not renewed, and he completed his third year of surgical residency at Huntington Memorial Hospital in Pasadena. He went to the University of Cincinnati in 1971 where he worked for two years as a resident in plastic surgery. Following completion of the residency, he returned to Santa Barbara but shortly thereafter, in 1973, he began working in the Lancaster-Palmdale area, and continued there until moving to the Palm Springs area in 1976 and filing the instant application for staff membership.

There were favorable recommendations from doctors at each of the communities and hospitals where he served, and he also received derogatory comments from one or two doctors at each. While surgical abilities were questioned, the derogatory letters mainly challenged his veracity, avoidance of responsibilities, and his failure to comply with hospital rules. The most derogatory letter was from a surgeon who had been a fellow resident at Santa Barbara. He wrote that Dr. Unterthiner was a disgrace to the practice of medicine, was a pathological liar "unable to tell the truth about the minutest detail," consistently violated regulations concerning residents, avoided night calls, was unavailable for many hours at a time, and moonlighted at several hospitals against residency regulations. Other doctors reported that he was a liar and untrustworthy. One said he was known as the "phantom" at Santa Barbara because he was never available at assigned times, and his postoperative care was "most negligent." A surgeon at Huntington said that he learned Dr. Unterthiner claimed to be at the surgeon's office on occasions when he could not be found for his general surgery duties and that when confronted, Dr. Unterthiner admitted he was lying. ¹

There was also evidence that, while a resident in Santa Barbara, Dr. Unterthiner, on a number of occasions scheduled for surgery, had failed to appear to scrub or had failed to appear timely. Other doctors or residents were called to assist. At the close of the hearing before the hearing officer, his request to personally address the hearing officer was granted, and when he sought to respond to the claimed failures to appear or timely appear, the hearing officer offered to reopen the hearing. Dr. Unterthiner did not deny but affirmed that he had failed to appear or appeared tardily. He sought to explain by stating that residents were paid only $400 per month, that to support his family he had taken a job with a Los Angeles hospital, and that on a number of occasions he was unable to return to Santa Barbara in time for scheduled surgeries. When counsel for the hospital interjected by stating that it was against the rules for residents to moonlight, he stated he was aware. He did not state whether he told his mentors or other surgeons that the reason that he had failed to appear was his Los Angeles job.

The application for membership on the medical staff states that any significant misstatements or omissions constitute cause for denial of appointment. Question 6, affiliations, requests the applicant to list all current and previous hospital affiliations, starting with the most current. Dr. Unterthiner failed to list Palmdale Community Hospital.

At the hearing before the hearing officer, Dr. Unterthiner acknowledged that he had conflicts with the chief of staff of Palmdale Community Hospital. The situation deteriorated to the point where Dr. Unterthiner said he tore up letters from the chief of staff without reading them. Due to chart problems his privileges were suspended at the hospital. He orally resigned from the hospital. The time sequence of the suspension, the practice of tearing up the letters, and the resignation is not shown by the record. ² He testified that if charges or letters of suspension or revocation were sent to him, he would have torn them up without reading them.

Question 16 of the application asked whether his privileges at any hospital had ever been "suspended, diminished, revoked or not renewed" and whether he had ever been denied membership or renewal thereof or been subject to disciplinary action "in any medical organization." He answered the question in the negative. He stated that the question called for listing any hospital where he had applied for privileges but had been denied them.

In 1973, he had applied to five hospitals in the Santa Barbara area. He was aware that none of the hospitals acted favorably on his requests. Notices of denial were mailed by Saint Francis Hospital of Santa Barbara and by Pinecrest Hospital, according to their records. Before the credentials committee he admitted that he had been denied membership. At that hearing he maintained that the omission of Saint Francis Hospital was due to his wife having filled out and signed his name to the application with him giving it only cursory review. At the ad hoc committee hearing and before the hearing officer he said he had not received the notices and did not know that his applications were rejected. When approval of his applications was delayed, he had learned from friends that there were going to be some problems. He then decided to locate his practice in the Lancaster-Palmdale area.

In response to the application's request for medical references, the application listed three doctors. One had not observed his clinical work, and another had not observed his plastic surgery work.

In response to a question at the ad hoc committee hearing whether he had any problems or clashes with individuals in the Lancaster-Palmdale area, he stated that he did not have "any specific problems" although he admitted that there were two doctors he did not like or did not get along with. He did not mention the conflicts with the chief of staff at Palmdale Community Hospital.

The chief of surgery at Antelope Valley Hospital, another hospital in the Lancaster-Palmdale area, testified to a number of events occurring there. Early in 1976, the surgical services committee reviewed orbital floor fractures, and reported several "conspicuous" differences between Dr. Unterthiner's cases and those of other doctors. A letter was sent specifying his average time from injury to surgery was 25 hours while the others was greater than 50 hours. Of his eleven cases, three had normal laminagrams, four had no laminagrams at all, and one was equivocal. The history and physical findings fail to "reach conclusive evidence" that all the patients had orbital floor fractures. The surgery findings report herniated material removed in all cases but there was no indication of the material in the physical findings and clinical findings in all of the cases. The committee asked for a written response, and suggested he attend a meeting to discuss the matter.

Dr. Unterthiner replied by citing authorities to the effect that there is danger of further injury from late treatment and thus quick treatment is necessary and that some studies had...