Abdulmouti Alaama v. Presbyterian Intercommunity Hospital, Inc.

Business and Professions Code section 809.11 requires a

hospital peer review board to give a physician notice and the

right to request a hearing when the hospital revokes or

terminates the physician’s membership, staff privileges, or

employment for a “medical disciplinary cause or reason.” In 2016

Presbyterian Intercommunity Hospital, Inc., doing business as

PIH Health Hospital-Whittier, and PIH Health Physicians

(collectively, the hospital) terminated Dr. Abdulmouti Alaama’s

privileges and staff membership without giving him a hearing.

Dr. Alaama filed a complaint that included causes of action

seeking a writ of administrative mandate, alleging, among other

things, the hospital denied him the right to a hearing before

terminating his privileges. The trial court denied the petition.

Because the hospital terminated Dr. Alaama’s privileges and

staff membership for a “medical disciplinary cause or reason,” we

reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Dr. Alaama Misbehaves in the Hospital

Dr. Alaama was not always on his best behavior. In April

2008 the hospital warned Dr. Alaama that he had to work

cooperatively with doctors, nurses, and staff at the hospital and

that he would be subject to discipline if he yelled at, verbally

abused, or displayed any “physically inappropriate and

1 Undesignated statutory references are to the Business and

Professions Code.

3

unprofessional behavior” toward hospital patients or employees.

In August 2010 the hospital placed Dr. Alaama on probation for

one year “because of his inappropriate and unprofessional

behavior directed towards an anesthesiologist and the nursing

staff” during a medical procedure.

But things did not improve. In March 2012 Dr. Alaama

“yelled, verbally abused, physically hit, and displayed physically

inappropriate and unprofessional behavior” toward a hospital

employee. In April 2012 he “continued with a procedure on a

patient whose blood pressure remained dangerously high, despite

repeated requests by the anesthesiologist to abort the procedure.”

Dr. Alaama acknowledged he had “a pattern of engaging in

unprofessional, disruptive, and harassing behavior.”

B. Dr. Alaama Signs a Behavioral Agreement

In April 2012 Dr. Alaama signed a written contract with

the hospital titled “Behavioral Agreement,” in which he agreed to

comply “in all respects” with the medical staff and hospital

bylaws, rules, regulations, and policies. As a condition to

retaining his medical privileges at the hospital, Dr. Alaama

agreed to comply with a list of “Specific Behavioral

Requirements.” For example, Dr. Alaama agreed not to “make

any demeaning, discourteous, disrespectful, harassing, or profane

statements, requests or demands” to any of the nurses,

administrative staff members, or other employees at the hospital,

including “name calling, profanity, sexual comments or

innuendos, and/or racial, ethnic, or sexual jokes.” He also agreed

not to “shout or otherwise raise his voice, act in an aggressive or

abrasive manner, or engage in any type of verbally abusive

behavior,” including when he responded to anyone who called to

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discuss patient issues or concerns. He further agreed not to

criticize anyone at the hospital “in front of or within earshot of”

anyone else, including making “disparaging statements regarding

an individual’s professional competence, comments that

undermine a patient’s trust in other caregivers at [the hospital],

and/or comments that undermine a caregiver’s self-confidence in

caring for patients.” And he agreed not to “touch, hit, slap or

otherwise engage in any physical behavior with” anyone at the

hospital, including “touching, punching, slapping, pushing,

shoving, smacking, inappropriate touching and/or throwing

instruments, charts, or other objects.”

Of particular relevance to this action, Dr. Alaama agreed in

paragraph 2.6 of the Behavioral Agreement that he would “be

readily available and exercise professional courtesy when called

upon to discuss a patient’s course of treatment or medical care”

and that he would “not exhibit any other inappropriate,

unprofessional, abusive or harassing behavior” on the hospital’s

premises, such as failing “to address the safety concerns or

patient care needs expressed by another caregiver” or failing “to

work collaboratively with other caregivers” at the hospital. He

also agreed in paragraph 2.8 of the agreement not to retaliate or

threaten to retaliate against anyone who reported behavior by

him that violated the agreement or the hospital bylaws, rules,

regulations, or policies. Dr. Alaama also acknowledged he

understood any further failure to comply with the standards of

the hospital medical staff would result in the “automatic

termination” of his medical staff privileges. The Behavioral

Agreement provided in paragraph 4.3 that, upon a finding by the

hospital medical executive committee Dr. Alaama violated the

agreement or hospital rules and regulations, his privileges would

5

be “automatically terminated.” Dr. Alaama agreed any “such

automatic termination shall not give rise to any substantive or

procedural rights under California Law” or the hospital’s bylaws.

The parties further agreed the Behavioral Agreement, “in and of

itself, does not require that a report be made to the Medical

Board of California or any other federal or state agency.”

C. Dr. Alaama Misbehaves in the Hospital Again

And yet, things did not improve. In particular, an incident

occurred in November 2015 that gave rise to the termination of

Dr. Alaama’s privileges at the hospital and, ultimately, this

litigation.

A hospital patient was lying in a bed on his stomach,

“profusely vomiting” with his “face changing to shades of purple,”

after an endoscopic retrograde cholangiopancreatography

procedure. Two nurses and a gastrointestinal technician each

asked Dr. Alaama to move a cart where he was “documenting” so

they could move a bed into the room and turn over the patient.

Dr. Alaama “responded to each request with words to the effect

of, ‘No, they can wait.’” According to the nurses, Dr. Alaama

motioned with his left hand and waved away the nurses and

technicians without looking up from the computer screen he was

working at on the cart, as though he did not want to be bothered,

and “barked” repeatedly, “[T]ell them to wait.” One of the nurses

said that Dr. Alaama “showed no concern” for the patient’s needs

and put “himself first instead of the patient’s needs” and that

“Dr. Alaama’s conduct (focusing on his documentation and his

lack of cooperation) prevented staff from properly taking care of

the patient’s needs.” The other nurse said Dr. Alaama did not

properly address the patient’s needs, did not work collaboratively

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with the staff, and did “what he wanted to do” without listening

to the nurses. After Dr. Alaama learned one of the nurses had

reported the incident, he asked the hospital not to assign that

nurse to his cases.

The hospital’s medical executive committee met in early

December 2015 to consider what to do about the November 2015

incident, as well as six other complaints filed against Dr. Alaama

between May 2013 and November 2015. The courses of action

the committee considered included requiring Dr. Alaama to

receive “behavior modification counseling” or take a “late career

practitioner examination,” updating the Behavioral Agreement to

include additional instances of misconduct and requiring

Dr. Alaama to “newly acknowledge his willingness to change,”

and deciding there were “already enough medical and behavioral

misadventure to proceed with termination from the medical staff

based upon article 4.3 . . . of the Behavioral Agreement.” The

committee also discussed “a number of anecdotal claims

concerning poor interaction with other physicians/staff, questions

regarding medical [judgment]/appropriateness of care given,” and

“other potential care issues.” The committee observed that

Dr. Alaama’s behavior “could be creating a ‘hostile workplace

environment,’” that he had “a long history of verbal abuse and

intimidation of hospital employees,” and that he had failed to

correct behavior he acknowledged was unacceptable.

A report prepared by the hospital’s human resource

department regarding the November 2015 incident stated the

nurses and technician “were concerned for patient safety and

were acting on [the anesthesiologist’s] comments to get the

patient a bed and get him on his back.” The report concluded

Dr. Alaama may have violated paragraph 2.6 of the Behavioral

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Agreement by failing to address the safety concerns or patient

care needs expressed by other caregivers and paragraph 2.8 by

retaliating against one of the nurses who reported the November

2015 incident.

D. The Hospital Terminates Dr. Alaama’s Hospital Staff

Privileges and Membership

The hospital’s medical executive committee met again in

January 2016 and considered the report. The committee

members approved a motion finding Dr. Alaama had violated

paragraphs 2.6 and 2.8 of the Behavioral Agreement and

terminated his medical privileges at the hospital.

The next day the president and chief of staff of the hospital

wrote Dr. Alaama and informed him of the medical executive

committee’s decision. This letter stated the committee found

Dr. Alaama’s conduct in the November 2015 incident violated

paragraph 2.6 of the Behavioral Agreement by failing to address

safety concerns and patient care needs expressed by staff and

failing to work collaboratively with operating room staff. The

letter also stated the committee found Dr. Alaama violated

paragraph 2.8 of the Behavioral Agreement by retaliating against

the nurse who had reported the incident by “requesting that the

nurse not be scheduled to work on [his] cases in the future.” The

letter concluded by quoting paragraph 4.3 of the Behavioral

Agreement and stating “this termination is immediate, and does

not give rise to any substantive or procedural rights under

California law or the [hospital] Bylaws. Further, because this

action has not been taken for a ‘medical disciplinary cause or

reason,’ as that term is defined at California Business and

8

Professions Code Section 805, no report will be filed with the

Medical Board of California.”

E. Dr. Alaama Files This Action

Dr. Alaama filed this action in September 2016, asserting

two causes of action titled “administrative mandate,” one alleging

the hospital did not give him a hearing and one seeking a judicial

determination the Behavioral Agreement was unenforceable.

Dr. Alaama also alleged causes of action for injunctive relief,

defamation, and violation of the Americans with Disabilities Act.

The case was transferred from the individual calendar court to

the writs and receivers department for a hearing on the request

for a writ of administrative mandate, and the latter court set the

matter for trial and stayed all causes of action other than the

petition for writ of mandate.2

F. The Trial Court Denies Dr. Alaama’s Petition for Writ

of Administrative Mandate

Dr. Alaama argued he was entitled to a writ of

administrative mandate directing the hospital to restore his

privileges “until he has been granted a hearing to determine

whether he has in fact violated” the Behavioral Agreement. He

also argued the waiver of his procedural and substantive rights

in the agreement was unenforceable under applicable provisions

of the Business and Professions Code. Dr. Alaama claimed it

was “undisputed that he was not accorded a fair hearing, or

2 We augment the record to include the complaint and the

court’s February 15, 2017 and February 17, 2017 minute orders.

(See Cal. Rules of Court, rule 8.155(a)(1)(A).)

9

indeed any hearing, under [the hospital’s] bylaws or under

California law.”

The hospital argued “no administrative peer review hearing

was required under the circumstances, as [the hospital] did not

terminate Dr. Alaama’s staff membership or privileges for a

reportable ‘medical disciplinary cause or reason,’” which would

require a hearing, but instead terminated his privileges “for

breach of the Behavioral Agreement,” which did not. According

to the hospital, because Dr. Alaama lost his privileges because of

his “abusive and harassing behavior toward other physicians,

nurses, and Hospital employees,” the statutory prohibition of

“contractual waiver of peer review rights” did not apply. The

hospital contended a physician had a right to a hearing only

when a peer review body takes action that must be reported to

the California Medical Board, and because Dr. Alaama’s

termination for bad behavior was not a reportable event, he was

not entitled to a hearing.

At the hearing, the trial court stated the “threshold issue”

was whether the hospital could “terminate Dr. Alaama without a

hearing for breach of the [Behavioral Agreement].” The trial

court stated, “[Y]es, it can. If he was terminated for non-medical

reasons involving abusive or harassing behavior, then it would be

for breach of the agreement and he’s not entitled to a hearing.”

The problem the court expressed, however, was that it did not

“see abusive or harassing behavior” by Dr. Alaama. The court

therefore stated its tentative ruling was the November 2015

incident “cannot be described as harassing or abusive treatment

of the nurses as that term in commonly understood. As found by

the [medical executive committee, Dr.] Alaama simply refused on

multiple occasions to move from the cart where he was writing,

10

thereby placing his paperwork before the patient’s medical care,”

which was a reportable medical disciplinary cause or reason,

which required a hearing. The court also found Dr. Alaama’s

request the hospital not schedule a nurse to work with him was

not retaliation because “there is nothing wrong with a request

not to work with one’s accuser.”

The court, however, changed its mind during the course of

the hearing. The court stated that, if the nurses raised a concern,

and Dr. Alaama “just blew them off, then that would be a

[failure]-to-address safety concerns raised by the nurses.” Thus,

the court stated, it did not matter whether the concerns

expressed by the nurses were “correct. If they raised an issue to

Dr. Alaama and he failed to address it, that is breach of the

agreement,” even if the nurses’ concerns were not legitimate.

The court explained, “They are accusing him of harassment,”

which was “defined under the agreement as failing to respond to

a nurse’s concern about patient needs and safety. That is, [it]

doesn’t matter whether they’re right or wrong. If . . . they raise

an issue and he doesn’t respond to them, that is considered

harassment under the agreement. It doesn’t matter whether he

actually was causing a safety issue or patient care issue.” The

court ruled the Behavioral Agreement provided that “if you fail to

address an issue of patient care raised by a nurse, whether or not

it’s true, you’re guilty of harassing behavior . . . . I’m

withdrawing my tentative. The petition’s denied.”

The court subsequently filed a written order denying the

petition for writ of mandate and dismissing with prejudice

Dr. Alaama’s two causes of action for administrative mandate.

The court stated in its written order: “The Court finds that the

evidence in the administrative record establishes that

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[Dr. Alaama] was terminated for a non-medical disciplinary

cause or reason because [his] termination was for breach of

[paragraph 2.6] the Behavioral Agreement. . . . Thus,

[Dr. Alaama] was not entitled to a hearing pursuant

to . . . section 809.1.”

DISCUSSION

A. The Trial Court’s Order Denying the Petition for Writ

of Administrative Mandate Is Appealable

The hospital argues the trial court’s order denying

Dr. Alaama’s petition for administrative mandate is “not

appealable because there remain three causes of action pending,”

namely, Dr. Alaama’s causes of action for injunctive relief,

defamation, and violation of the Americans with Disabilities Act.

Although the hospital acknowledges Dr. Alaama dismissed those

causes of action without prejudice, the hospital argues “a

dismissal without prejudice is insufficient because it does not

create a final judgment from which an appeal may be made . . . .”

According to the hospital, because Dr. Alaama “is still able to

revive his remaining causes of action,” the trial court’s order

denying Dr. Alaama’s petition “did not create a final judgment

subject to appeal.”

Well, yes and no. A voluntary dismissal, “unaccompanied

by any agreement for future litigation, does create sufficient

finality as to that cause of action so as to allow appeal from a

judgment disposing of the other counts. [Citation.] That is

because ‘a party’s voluntary dismissal without prejudice does not

come equipped by law with an automatic tolling or waiver of all

relevant limitations periods; instead, such a dismissal includes

12

the very real risk that an applicable statute of limitations will

run before the party is in a position to renew the dismissed cause

of action.’” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097,

1105-1106; see Alki Partners, LP v. DB Fund Services, LLC

(2016) 4 Cal.App.5th 574, 589, fn. 6 [“Because the record does not

indicate the dismissal was accompanied by any agreement for

future litigation, the judgment is sufficiently final to be

appealable.”]; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 427,

fn. 5 [dismissal without prejudice that “was not accompanied by

any agreement between the parties regarding future litigation”

was sufficient to “render the judgment appealable”]; Abatti v.

Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 665 [“claims

that are dismissed without prejudice are no less final for

purposes of the one final judgment rule than are adjudicated

claims, unless . . . there is a stipulation between the parties that

facilitates potential future litigation of the dismissed claims”].)

There is no evidence or suggestion in the record of any

agreement for future litigation. To the contrary, Dr. Alaama

states he “waived [his] right to litigate the unresolved causes of

action.” Thus, the problem is not that Dr. Alaama dismissed the

three causes of action without prejudice. The problem is that he

dismissed the three causes of action after he filed a notice of

appeal. But even so, the trial court had jurisdiction to dismiss the

three remaining causes of action. (See Holloway v. Quetel (2015)

242 Cal.App.4th 1425, 1431, fn. 6 [“[a]n appeal from a

nonappealable order does not divest the trial court of

jurisdiction”].)

In any event, in his reply brief on appeal, Dr. Alaama

agreed to treat his requested dismissal of the three unadjudicated

causes of action as a request for dismissal with prejudice. “When

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a party expressly waives on appeal the right to litigate an

unresolved cause of action that deprived the judgment as entered

of finality, the appellate court may give effect to the waiver by

amending the judgment to reflect a dismissal of that cause

of action with prejudice.” (Sullivan v. Delta Air Lines, Inc. (1997)

15 Cal.4th 288, 308-309; accord, Areso v. CarMax, Inc. (2011) 195

Cal.App.4th 996, 1002.)3

B. The Hospital Failed To Give Dr. Alaama a Hearing as

Required by Section 809.1

1. Standard of Review

The hospital contends Code of Civil Procedure section 1085

governing traditional mandate applies to Dr. Alaama’s petition

because “this case involves a dispute over a contract.” Even if it

did not, the hospital’s position finds support in Mileikowsky v.

Tenet Healthsystem (2005) 128 Cal.App.4th 531 (Mileikowsky),

overruled on a different ground in Mileikowsky v. West Hills

Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273, where

the court stated that “[f]ailure to provide a hearing required by

law or regulation is remedied by a petition for traditional

mandate.” (Mileikowsky, at p. 554.) Dr. Alaama contends Code

of Civil Procedure section 1094.5 governing administrative

mandate applies to “the quasi-adjudicative decisions of private

hospital boards,” including the hospital’s decision to terminate

his staff privileges and membership without giving him a

hearing. (See Code Civ. Proc., § 1094.5, subd. (a) [statute applies

where a “writ is issued for the purpose of inquiring into the

3 We also treat the trial court’s order as a final and

appealable determination of the rights of the parties.

14

validity of any final administrative order or decision made as the

result of a proceeding in which by law a hearing is required to be

given”]; Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th

1598, 1608 [“section 1094.5 . . . was intended to apply in all cases

where the subject decision is the product of a proceeding in which

a hearing and related procedural protections are required by

law,’” italics omitted].)

Under either statute, however, we independently review

the issue “whether the hospital’s determination was made

according to a fair procedure.” (Ellison v. Sequoia Health

Services (2010) 183 Cal.App.4th 1486, 1496; see Golden Day

Schools, Inc. v. Office of Administrative Hearings (2017) 8

Cal.App.5th 1012, 1020 [in mandamus proceedings “‘pure issues

of law are always subject to independent appellate court

review’”].) We also review de novo the application of a statute to

a set of an undisputed facts. (Department of Health Care Services

v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120,

141; M & B Construction v. Yuba County Water Agency (1999) 68

Cal.App.4th 1353, 1359.)

2. The Hospital Terminated Dr. Alaama’s

Privileges and Membership for a “Medical

Disciplinary Cause or Reason”

Once a hospital appoints a physician to its medical staff,

the hospital may not take away the physician’s privileges or

terminate his or her staff membership “‘absent a hearing and

other procedural prerequisites consistent with minimal due

process protections.’” (Sahlolbei v. Providence Healthcare,

Inc. (2003) 112 Cal.App.4th 1137, 1146; see Economy v. Sutter

East Bay Hospitals (2019) 31 Cal.App.5th 1147, 1156 (Economy).)

Section 809 et seq. set forth a comprehensive procedure

15

governing adverse action by a hospital against a staff physician.

(Sahlolbei, at p. 1147.) “This procedure is mandatory for acute

care hospitals and must be incorporated into their bylaws.”

(Ibid.; see § 809, subd. (a)(8).) The hospital concedes section

809.1 applies to certain adverse actions against its member

physicians but argues the circumstances of Dr. Alaama’s

termination did not trigger section 809.1’s procedural safeguards.

Section 809.1 provides that a physician subject to a final

proposed action by a peer review body “for which a report is

required to be filed under Section 805” is entitled to written

notice of the action and to request a hearing. (§ 809.1, subds. (a),

(b)(3).) Section 805 requires that an officer, director, or peer

review administrator of a licensed health care center or clinic

must file a report with the applicable licensing agency when a

physician’s membership, staff privileges, or employment is

terminated or revoked for a “medical disciplinary cause or

reason.” (§ 805, subd. (b)(2).) “‘Medical disciplinary cause or

reason’ means that aspect of a [physician’s] competence or

professional conduct that is reasonably likely to be detrimental to

patient safety or to the delivery of patient care.” (§ 805, subd.

(a)(6).) Section 809.6, subdivision (c), provides that the

requirements of section 809.1 “may not be waived in [any

applicable agreement or contract between the licentiate and

health care entity] for a final proposed action for which a report is

required to be filed under Section 805.”

As stated, the medical executive committee terminated

Dr. Alaama’s privileges and staff membership for two reasons,

one of which was Dr. Alaama’s “fail[ure] to address the safety

concerns and patient care needs expressed by . . . the operating

room staff” in November 2015. The letter to Dr. Alaama from the

chief of staff explained that Dr. Alaama violated section 2.6 of the

Behavioral Agreement by, among other things, inhibiting the

16

hospital staff from providing a bed for a vomiting patient. Such

conduct falls squarely within the definition in section 805 of

“medical disciplinary cause or reason,” which includes a

physician’s “professional conduct that is reasonably likely to be

detrimental . . . to the delivery of patient care.” (§ 805, subd.

(a)(6).) By blocking hospital staff from moving a bed into position

for the patient, Dr. Alaama prevented the staff from delivering

patient care, which under the statute is a medical disciplinary

cause or reason. Thus, Dr. Alaama’s conduct triggered the

mandatory reporting requirement of section 805, which, in turn,

gave Dr. Alaama the right to a hearing under section 809.1. (See

§ 805, subd. (b)(2); § 809.1, subds. (a), (b)(3).)

The hospital argues it terminated Dr. Alaama “because of

his inappropriate, unprofessional, abusive and harassing

behavior toward physicians, nurses, and Hospital employees in

the workplace when he ‘failed to address patient care concerns

that were expressed to him by staff’ . . . .” Attempting to

distinguish Dr. Alaama’s conduct from conduct that amounts to a

“medical disciplinary cause or reason,” the hospital places great

significance (as did the trial court) on the fact Dr. Alaama failed

to respond to “expressed” concerns about patient care. The

hospital argues Dr. Alaama’s “disregard of multiple caregivers’

expressions of patient care concern did not rise to the level of

conduct that was detrimental to the patient’s safety or delivery of

patient care.” The hospital cites its investigator’s interview with

the anesthesiologist involved in the November 2015 incident, who

said Dr. Alaama’s conduct “was not detrimental to the patient’s

safety because the patient was oxygenating well despite the fact

that the patient was vomiting.” The hospital also cites Dr.

Alaama’s opening brief on appeal in which he states, “[t]he

anesthesiologist does not claim that patient care was an issue.”

But even if Dr. Alaama’s conduct in connection with the

17

November 2015 incident was not detrimental to patient safety, it

was detrimental “to the delivery of patient care.” (§ 805, subd.

(a)(6).) And that, under the statute, is enough.

The hospital also argues it satisfied Dr. Alaama’s due

process rights by providing a fair procedure conducted by the

medical executive committee. But section 809.1 establishes the

“minimum procedural standards” for terminating a physician’s

hospital privileges and membership. (Economy, supra, 31

Cal.App.5th at p. 1157.) A hospital cannot avoid the

requirements of sections 805 and 809.1 by substituting its

procedures for those established by the Legislature. (See

Economy, at p. 1158 [hospital cannot substitute its procedures for

section 809.1 because the “plaintiff’s right to practice medicine

would be substantially restricted without due process and,

despite the hospital’s concern that plaintiff was endangering

patient safety, the state licensing board would never be

notified”].)

Finally, the hospital cannot avoid its obligation to afford

Dr. Alaama a hearing by enforcing section 4.3 of the Behavioral

Agreement, which states that any termination as a result of

violating the terms of the agreement does not give rise to any

substantive or procedural rights under California law. The

hospital argues this provision is enforceable because the

circumstances under which the hospital terminated Dr. Alaama’s

membership did not implicate section 809.1. But because it did,

section 4.3 of the Behavioral Agreement is unenforceable. (See

§ 809.6, subd. (c).)4

4 Dr. Alaama does not argue any other provision of the

Behavioral Agreement is unenforceable. The hospital does not

argue we should affirm the trial court’s ruling on the basis of

paragraph 2.8 concerning retaliation.

The order denying the petition for administrative mandate is reversed. The trial court is directed to enter a new order granting Dr. Alaama’s petition for mandate requesting a hearing. Dr. Alaama is to recover his costs on appeal.