Date: 06-12-2007

Case Style: Gil N. Mileikowsky v. West Hills Hospital Medical Center, et al.

Case Number: B186238

Judge: Flier

Court: California Court of Appeal, Second Appellate District on appeal from the Superior Court of Los Angeles County

Plaintiff's Attorney:

Charles Kagay, Spiegel Liao & Kagay, San Francisco, California; Paul Hittelman, Law Offices of Paul M. Hittelman, Los Angeles, California and for Plaintiff and Appellant.

Defendant's Attorney:

Ron S. Kaufman and Nina Ries of Fenigstein & Kaufman, Los Angeles, California, for Defendants and Respondents.

Description:

On August 19, 2003, the governing board of respondent West Hills Hospital and Medical Center (Hospital) upheld the dismissal, by the hearing officer, of appellant Gil N. Mileikowsky's challenge to the Hospital's decision to deny appellant staff privileges. The dismissal was based on the fact that appellant declined to furnish documents relating to proceedings involving appellant at Cedars-Sinai Medical Center (not a party hereto). On August 19, 2004, appellant filed a petition for a writ of mandate that challenged the governing board's decision. The trial court denied the petition. We reverse with directions.

FACTS

1. Appellant Requests Hospital Privileges, Which Are Denied; the Convocation by Hospital, at Appellant's Request, of an Administrative Peer Review Process

Appellant is a physician and surgeon licensed to practice medicine in California; he is board certified in obstetrics and gynecology with a subspecialty in infertility. On May 18, 2001, he applied for reappointment to the Hospital's medical staff. At the time of this application, he had courtesy gynecology privileges at the Hospital; a courtesy privilege is given to physicians who use the Hospital only infrequently. Technically, his application was for an extension of his gynecology privileges for the 2001-2003 term, and for additional obstetrical privileges for the same term.

The president of the Hospital's staff informed appellant by way of a letter dated April 24, 2002, that the Medical Executive Committee denied appellant's application for gynecological and obstetrical privileges. The letter gave several reasons. First, the letter stated that appellant had failed to notify the Hospital that appellant's privileges at Century City Hospital had been terminated on November 7, 2000. Next, while appellant's application stated that he had voluntarily resigned from the Encino-Tarzana Medical Center, documentation showed that he had been summarily suspended on November 16, 2000. The letter also detailed an incident in respondent Hospital when a patient specifically requested that appellant not be allowed to see her, yet appellant insisted on seeing her, and claimed he had obstetrical privileges at the Hospital when that was not the case. The letter stated that this incident did not meet the Hospital's professional and ethical standards. Appellant notified the Hospital that he appealed this decision.

Pursuant to its bylaws, the Hospital appointed a "Judicial Review Committee" (JRC) and a hearing officer, attorney John D. Harwell. Under the bylaws, the hearing officer is to preside over the hearings held by the JRC and "shall not act as a prosecuting officer or advocate, and shall not be entitled to vote." The bylaws provide that the hearing officer may not be legal counsel to the Hospital or the medical staff and "shall gain no direct financial benefit from the outcome."

On June 17, 2002, Harwell wrote to appellant and to the president of the Hospital's medical staff a letter in which he stated that he had been appointed as the hearing officer. The letter stated that Harwell was "a hearing officer in another matter involving [appellant]," that Harwell had reviewed the charges against appellant made by the Hospital and that he found "no overlap of charges, incidents, facts or other circumstances with the other matter in which I [Harwell] am involved." The other matter in which Harwell was a hearing officer were proceedings involving appellant and Century City Hospital.

Appellant chose to represent himself in the JRC proceedings. On July 1, 2002, a hearing was convened by the JRC which was opened by Harwell's statement that "[t]his is the first voir dire" in the matter of appellant's appeal from the decision denying him hospital privileges. Appellant then proceeded to question Harwell; the transcript of appellant's examination of Harwell is approximately 50 pages long. The thrust of appellant's questioning was to demonstrate that Harwell could not serve as a fair, unbiased hearing officer.

2. Appellant's Failure To Produce the Cedars-Sinai Documents; the Hearing Officer's Order Terminating the Hearing; Hospital's Approval of the Hearing Officer's Decision

On July 16, 2002, Harwell wrote appellant and the president of Hospital's staff, stating that the exchange of documents should be completed between then and Labor Day. No mention was made of documents involving appellant and Cedars-Sinai Medical Center.

On July 17, 2002, Hospital's counsel, attorney James R. Lahana, wrote appellant stating, among things, that: "Further, please be advised that the Medical Staff still has not received copies of the Notice of Charges, findings of the Hearing Committee and transcripts and exhibits concerning the summary action which was taken against you at Cedars-Sinai Medical Center despite prior requests for such information. Previously, you refused to provide copies claiming that the attorney from Cedars-Sinai Medical Center did not authorize you to release those documents even though you are no longer a member of that staff. As a result of your refusal to provide the requested information, your application for reappointment remains incomplete. Please be aware your continued failure to provide these materials by July 28, 2002 will result in the Medical Staff amending its Notice of Charges to include allegations concerning your failure to cooperate, as well as including a reference to the Cedars-Sinai Medical Center suspension based upon the limited information contained in the Business and Profession Code Section 805 report and National Practitioner Data Bank report submitted by Cedars-Sinai Medical Center." The Cedars-Sinai documents requested by Hospital are referred to hereafter collectively as the "Cedars-Sinai documents."

In a letter dated July 29, 2002, addressed to the president of Hospital's staff, appellant wrote that he would be "able to respond" by August 5, 2002. Appellant, however, did not respond. On August 21, 2002, Hospital amended the Notice of Charges to include appellant's failure to furnish the Cedars-Sinai documents. This amendment also added as an additional charge that appellant's privileges were first suspended and then revoked by Cedars-Sinai.1

On September 3, 2002, appellant wrote hearing officer Harwell, stating that he would "not be able to respond to the latest correspondence from West-Hills till 9-10." On October 3, 2002, the Hospital wrote Harwell that appellant had not furnished the Cedars- Sinai documents. On November 27, 2002, the Hospital again wrote Harwell, stating that the Hospital had attempted to set a hearing on "numerous occasions" but that appellant had not been "responsive to the Medical Staff's efforts at moving this case to [a] conclusion." This letter stated that appellant had not furnished the Cedars-Sinai documents.

On January 12, 2003, appellant wrote the Hospital, with a copy to Harwell, a lengthy letter in which he demanded that his privileges be reinstated and that the proceedings involving his privileges be dismissed. Among other things, this letter stated that, as far as the Cedars-Sinai documents were concerned, appellant had provided the Hospital with "2 [s]igned [r]eleases authorizing both [h]ospitals to exchange any information they [w]ish a long time ago."

The Hospital responded to this by a letter dated January 14, 2003, addressed to Harwell, which stated that appellant "ignores the fact that he or his counsel have in their possession the very documents being sought and that the burden is on [appellant] to produce that information, not upon Cedars." This letter requested that appellant's "appeal be dismissed based upon his willful disregard of the July 29, 2002 order and his failure to produce the required documentation."

By a letter February 5, 2003, Harwell handed down a ruling on the Hospital's request for terminating sanctions, as well as on number of matters that are not material to this appeal.

The section of the February 5, 2003 letter that addressed the Hospital's request for terminating sanctions noted that appellant had refused to provide the Cedars-Sinai documents to the Hospital "apparently on the basis that the counsel for Cedars-Sinai has instructed [appellant] not to reveal these documents and further [appellant] directs the [Hospital] to obtain the documents from Cedars-Sinai directly." The letter states that appellant's response was not "adequate." The reason for this, according to the letter, is that the Hospital's bylaws and Business and Professions Code section 809.2, "oblige [appellant] to make available for inspection and copying all documents relevant to the Notice of Charges." The letter goes on to note that the Cedars-Sinai documents are "clearly relevant" to the Notice of Charges

The February 5, 2003 letter then proceeded to discuss the law relating to terminating sanctions issued for an abuse of the discovery process under the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.). The letter does not cite any authorities that empower a hearing officer in a peer review proceeding3 to terminate the hearing because one of the parties to the proceeding has failed to produce documents demanded by the other party. The letter concludes by stating that appellant's "refusal has been wilful [sic], in that it is deliberate and intentional, even if taken in error." The letter ordered appellant to produce the Cedars-Sinai documents and stated that if the documents were not produced, "terminating sanctions will be imposed."

Appellant did not produce the documents, but requested until March 14, 2003, to respond. That date came and went; on March 18, 2003, Harwell wrote the parties another letter in which he stated that appellant was required to produce the Cedars-Sinai documents by March 24, 2003, "or terminating sanctions will be ordered." The documents were not produced by appellant.

The next step in the process was a document captioned "BEFORE THE JUDICIAL REVIEW COMMITTEE [] WEST HILLS HOSPITAL" and entitled "Order Terminating Hearing for Failure of [appellant] to Comply with Discovery Orders." (Boldface omitted.) This document, dated March 27, 2003, was signed solely by Harwell in his capacity as hearing officer; we will refer to this document as the "terminating order."

The text of the terminating order reviewed the history of the matter, which we have set forth above, and then addressed the powers of the hearing officer. The terminating order notes that section 809.2(d) and section 10.3-2 of article X of Hospital's bylaws require the parties to make available for inspection and copying documents that relate to the pending charges; section 10.3-2 is, in substance, the same as section 809.2(d). (See fn. 2, ante.) The terminating order also notes that section 10.1-7 of article X of the bylaws provides that failure to appear at, and to proceed with, the hearing shall be deemed to constitute voluntary acceptance of the recommendation or action that is the subject of the hearing. The terminating order then examines the power of courts to issue terminating sanctions for discovery abuses and the decision in Webman v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592 (Webman), which the terminating order states is "eerily similar" to this case. The terminating order concludes that appellant's refusal to produce the Cedars-Sinai documents justified terminating sanctions and that, for this reason, "the request of the Medical Staff to dismiss [appellant's] requested hearing is granted and pursuant to the Bylaws, Section 10.1-7, ‘to constitute voluntary acceptance of the recommendations or actions involved, which shall become effective immediately.' "

Appellant appealed this decision to the Hospital's "Governing Board," which appointed a committee to hear the matter.4 Among other contentions, appellant contended in this appeal that the hearing officer did not have the power to terminate the hearing. The Governing Board disagreed, specifically finding that appellant was afforded a fair hearing procedure and that the decision of the hearing officer "in dismissing the appeal of [appellant], was reasonable and warranted, supported by the weight of the evidence, and the Committee of the Governing Board recommended that it be accepted in its entirety. [] . . . Accordingly, the adoption of the decision of the Hearing Officer appointed to the Medical Review Committee is the final action of the Governing Board." This final decision is dated August 19, 2003.5

3. The Trial Court's Reasons for Finding That the Hearing Officer Was Empowered To Terminate the Hearing

The trial court rejected appellant's contention that the hearing officer was not empowered to issue an order terminating the hearing, as a sanction for appellant's failure to produce the Cedars-Sinai documents. The trial court gave four reasons for this.

First, the trial court found that the hearing officer's decision was authorized by section 809.2(d), and section 10.3-2c of the bylaws, which provide that the hearing officer "shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires." The trial court concluded that this provision empowered the hearing officer to terminate the hearing as a sanction for appellant's failure to produce the Cedars-Sinai documents.

Second, the trial court found that appellant's failure to produce the documents in question prevented the JRC from properly performing its function of evaluating appellant's fitness to practice medicine.

Third, the court referred to the fact that appellant himself had demanded terminating sanctions because the Hospital refused to turn over documents demanded by appellant.

Fourth, the interests of justice warranted the termination of the hearing, because the termination of the hearing ensured that appellant would not benefit from his refusal to furnish the Cedars-Sinai documents.

* * *

We begin with the fact that the Legislature decreed that California should "design its own peer review system" (§ 809, subd. (a)(2)), and that the Legislature has done just that in section 809.05 through and including section 809.9. Section 809.2, captioned "[h]earing concerning final proposed action by peer review body; procedures; voir dire; inspection of documents; decision, witnesses; continuances; commencement," is of particular significance to this appeal.

Before turning to section 809.2, it is important to understand the context in which section 809.2 operates.

Section 809.1, subdivision (a) provides that a "licentiate who is the subject of a final proposed action of a peer review body for which a report is required to be filed under Section 805 shall be entitled to written notice as set forth in subdivisions (b) and (c). For the purposes of this section, the ‘final proposed action' shall be the final decision or recommendation of the peer review body after informal investigatory activity or prehearing meetings, if any." In this case, a section 805 report was required because appellant's application for staff privileges or membership was "denied or rejected [or terminated or revoked] for a medical disciplinary cause or reason." (§ 805, subd. (b)(1) & (2).) Once the licentiate has been notified of the "final proposed action," the licentiate may request a hearing on the final proposed action. (§ 805, subd. (b)(3).) Appellant made such a request in this case.

The hearing that ensues is governed by section 809.2, which is reasonably detailed in setting forth the requirements of a hearing. Subdivision (a) sets forth who is the "trier of fact" in a hearing held under section 809.2.6 A decision regarding the final proposed action of the peer review body is made by the trier of fact, as that agency is defined in subdivision (a) of section 805. (See fn. 6, ante.)

Section 809.2 specifically provides for a hearing officer. Subdivision (b) of section 809.2 states: "If a hearing officer is selected to preside at a hearing held before a panel, the hearing officer shall gain no direct financial benefit from the outcome, shall not act as a prosecuting officer or advocate, and shall not be entitled to vote." The provision that the hearing officer is not entitled to vote refers necessarily to a vote on the merits, i.e., whether the final proposed action should be affirmed or vacated. Given that the composition of the trier of fact is weighted toward ensuring that medical specialists review the final proposed action, it makes sense to exclude the hearing officer, whose functions and expertise should center on the conduct of the hearing, from that decision. There is the further consideration that it would make no sense to deprive the hearing officer of the right to "vote" on procedural decisions, since this is the area of the hearing officer's expertise and role in the hearing. The most sensible construction is that the reference to a "vote" is a reference to the deliberations of the trier of fact, which is a body composed of several members who cast votes to produce the decision of that body.

Section 809.3, subdivision (a) sets forth the procedural rights of the parties in a hearing that is convened under section 809.2.7 In the context of this case, we define a "premature termination" to be one when either one of the parties has not been afforded the opportunity to exercise the rights set forth in section 809.3, subdivision (a). There is no question that this case qualifies as one when the hearing was prematurely terminated, in that no hearing ever took place when appellant could avail himself of the rights set forth in section 809.3, subdivision (a), particularly the rights set forth in subdivision (a)(3), (4) and (5). (See fn. 7, ante.)

The decision to prematurely terminate a hearing convened under the authority of section 809.2 is a decision that lets stand the final proposed action of the peer review body that, in the first place, was the cause of the request for a hearing. Since the sole object of a hearing held pursuant to section 809.2 is to reverse, or affirm, the final proposed action, the decision to terminate the hearing with the effect of letting the final proposed action stand is therefore clearly a decision on the merits. This result is confirmed by the terminating order of the hearing officer in this case which expressly confirmed that appellant was deemed to have accepted the Hospital's action (the final proposed action), " ‘which shall become effective immediately.' "

A decision on the merits, however, is consigned to the trier of fact as that body is defined in subdivision (a) of section 809.2; subdivision (b) expressly denies the hearing officer the right to vote on the merits. Therefore, in this case, the hearing officer's decision to prematurely terminate the hearing ran afoul of the fundamental provision of section 809.2 that the hearing officer is not empowered to make a decision regarding the final proposed action of the peer review body.

The Hospital's governing board adopted as its own the hearing officer's decision to prematurely terminate the hearing. There is no provision in section 809.2, however, or any of its companion sections, that empowers anyone, including the trier of fact and the body that hears an appeal from the decision of the trier of fact, to prematurely terminate a hearing convened under section 809.2 before a party has been accorded an opportunity to exercise the rights set forth in subdivision (a) of section 809.3. (See fn. 7, ante.)

The hearing officer drew on jurisprudence dealing with terminating sanctions under the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) in concluding that, as a hearing officer, he was empowered to issue terminating sanctions. There are three reasons why this conclusion is erroneous.

First, the right to inspect and copy documentary information that is granted to the parties by section 809.2(d) (see fn. 2, ante) is not to be confused with discovery under the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.). The Civil Discovery Act applies to a pending "action,"8 which is defined as a "civil action" and a "special proceeding of a civil nature."9 (See generally 1 Hogan & Weber, Cal. Civil Discovery (LexisNexis 2005) § 1.6, pp. 1-10 to 1-14.) While the statute does not define a special proceeding of a civil nature (id. at p. 1-10), it has been held that this language refers to a proceeding in a court of law. (McRae v. Superior Court (1963) 221 Cal.App.2d 166, 170.) Other than in civil actions, the Civil Discovery Act applies to judicial arbitration, to contractual arbitration to a limited extent, to administrative proceedings involving state agencies,10 in State Bar disciplinary proceedings and to sexually violent predator civil commitment proceedings. (1 Hogan & Weber, Cal. Civil Discovery, supra, § 1.6, pp. 1-10 to 1-14; 2 Witkin, Cal. Evidence (4th ed. 2000) Discovery, § 6, p. 860.)11 The right to inspect and copy documentary information under the provisions of section 809.2(d) is not subject to the Civil Discovery Act.

Second, terminating sanctions under the Civil Discovery Act are a creature of statute. The general authority for terminating sanctions under the Civil Discovery Act is subdivision (d) of Code of Civil Procedure section 2023.030; terminating sanctions in specific settings are also specifically governed by statutory law.12 Apart from the authority granted under these statutes to terminate a civil action or a special proceeding of a civil nature, there is no power to terminate either a civil action or a special proceeding of a civil nature as a discovery sanction. There is no statute that grants a hearing officer named under section 809.2, subdivision (b), or the trier of fact as defined in section 809.2, subdivision (a), the power to prematurely terminate a hearing as a sanction for failure to make documents available to the other party. Apart from statute, there is no "common law" that authorizes terminating sanctions for the failure of a party to comply with section 809.2(d).

Third, section 809.2 specifically addresses the consequence of a failure to provide information requested under section 809.2(d).13 The only procedural consequence of failure to provide information requested under section 809.2(d) is that it "shall constitute good cause for a continuance." While, as we point out below, the failure to provide requested documentation may have also substantive consequences, the only procedural sanction allowed by the statute is a continuance of the hearing. There is no authority to add to this provision a further power to terminate a hearing prematurely for failure to produce requested documentation.

The trial court found that the hearing officer's decision was authorized by section 809.2(d), and section 10.3-2c of the bylaws, which provide that the hearing officer "shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires." The trial court's conclusion does not take into account the context of the hearing officer's empowerment to "safeguard" the process. In relevant part, section 809.2(d) provides: "The right to inspect and copy by either party does not extend to confidential information referring solely to individually identifiable licentiates, other than the licentiate under review. The arbitrator or presiding officer shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires." The word "safeguards" refers to the problem raised by the sentence that precedes this word, which is "confidential information referring solely to individually identifiable licentiates, other than the licentiate under review." It is this right of persons who are not parties to the hearing -- confidential information referring to other licentiates -- that the arbitrator or presiding officer is empowered to "safeguard." We do not agree that the provision that empowers the arbitrator or presiding officer to "impose any safeguards [that] the protection of the peer review process and justice requires" is authority to terminate the hearing prematurely, especially since: (1) such power is conferred only and expressly by statute and (2) there is no such statute when it comes to a hearing held pursuant to section 809.2.

The hearing officer concluded that Webman, supra, 39 Cal.App.4th 592 authorizes the premature termination of the hearing process under section 809.2 or, in the hearing officer's terms, the termination of the hearing for appellant's failure to comply with discovery orders. We do not agree.

* * *

Outcome: The judgment is reversed. The case is remanded with directions to enter a judgment directing the Hospital: (1) to set aside its decision of August 19, 2003; (2) to convene a hearing pursuant to the provisions of subdivision (c) of section 809.1; and (3) to conduct the hearing and further proceedings in accordance with the provisions of section 809.2 et seq., and in conformance with the views expressed in this opinion.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Editor's Note: Dr. Mileikowsky won this round but it is probable that he will ultimately not prevail.