Louis E. POTVIN, Plaintiff and Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant and Respondent.
Plaintiff Louis E. Potvin, M.D. appeals from a summary judgment in favor of defendant Metropolitan Life Insurance Company.
STATEMENT OF FACTS
Plaintiff is a physician, licensed to practice in California. He practices obstetrics and gynecology. At all relevant times, he was a member of the American Board of Obstetrics and Gynecology and a Fellow of the American College of Obstetrics and Gynecology and of the American College of Surgeons. He was a member of local medical organizations, had served as an officer of some of these organizations, had staff privileges at a number of hospitals and had been on their boards of directors. He had been practicing medicine for over 30 years and enjoyed a good reputation in the medical community.
Defendant is a mutual insurance company incorporated in New York and licensed to do business in California. It offers two networks of health care providers, the Managed Care Network and the Met-Elect Network, which agree to accept payment by defendant as payment in full for covered services. Defendant contracts directly with about 16,000 physicians in Southern California and with about 6,500 through its HMO networks.
On September 10, 1990, plaintiff and defendant entered into a Physician Agreement (Agreement). The Agreement recites that employers have provided employee benefit plans which include one of two networks of participating health care providers, the Managed Care Network and the Met-Elect Network. Defendant provides administrative services under self-funded plans or insurance benefits under plans including insurance policies. Plaintiff desired to participate in the Managed Care and Met-Elect Networks.
The Agreement provides for payment to plaintiff by defendant for covered health care services. It regulates plaintiff's provision of services to covered individuals.
The Agreement also provides, in paragraph 11, that plaintiff is an independent contractor: “None of the provisions of the Agreement are intended to create, or shall be deemed or construed to create any relationship between the parties hereto other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement. Neither of the parties hereto, nor any of their respective employees shall be construed to be the agent, employee, or the representative of the other.”
Paragraph 14 of the Agreement provides for its termination. It provides a number of circumstances in which the Agreement will terminate automatically. It also provides: “This Agreement may be terminated by either party at any time, with or without cause, by giving thirty (30) days prior written notice to the other party by certified mail.”
On July 22, 1992, defendant wrote to plaintiff, giving him the required 30 days' notice that it was terminating the Agreement. Termination was to be effective on August 31. On July 30, plaintiff wrote to defendant, requesting an explanation as to the reason for termination of the Agreement.
Defendant's Regional Network Director, Bud Volberding (Volberding) wrote back on January 7, 1993. He stated that the decision to terminate the Agreement was being reaffirmed. The termination was consistent with paragraph 14 of the Agreement, which permits termination with or without cause upon 30 days' notice. The termination was a business decision and no reflection on his performance as a medical provider. Plaintiff wrote back to Volberding, again requesting an explanation for defendant's termination of the Agreement.
Defendant's Network Director wrote back to plaintiff on March 5, 1993. He reiterated that termination of the Agreement was without cause as permitted by paragraph 14 of the Agreement. “In addition, there is no contractual requirement to provide you with any notification of a cause for the termination. Thus any explanation for the contract termination is being provided merely as a convenience to you and as a result of your request for information. In this context we advise that your delistment from the provider network was related to the fact that you did not meet our current selection and retention standard for malpractice history. [¶] The above is not intended to be an exhaustive explanation of the circumstances surrounding your delistment. Other factors, such as network need, normally also contribute to such a decision. The determination was finalized after a full examination of the totality of circumstances involved. [¶] The furnishing of the above information does not constitute an allegation that your provider contract was terminated for cause․”
Plaintiff wrote back on March 30, 1993 explaining his malpractice history. He had not been at fault in a malpractice action filed against him in 1977, but his insurer had settled the case without admitting liability. Other claims of malpractice against him had been dropped. He explained the difficulty his delistment had caused for himself and his patients and requested a hearing on the matter. Not hearing from defendant, plaintiff wrote back on June 23, 1993, again requesting a hearing and stating that defendant's decision to terminate the Agreement had caused him “financial grief.” Defendant never provided him with a hearing.
In 1991, defendant had instituted criteria for retention of participants in its health care provider networks. It had three medical directors assigned to the task of reviewing documentation received from network physicians. Each physician's documentation would be reviewed by only one medical director, however.
Dr. Ramona Johnson, one of defendant's medical directors, reviewed plaintiff's documentation in late 1991. A form entitled “Quality Assurance Committee Review Sheet” and dated November 13, 1991 indicates review by the committee was required due to malpractice history. Under the heading “QA Committee Action,” the date November 20, 1991 is stamped in the space labeled “MD Denied,” “Malpractice History.” The form was signed by Dr. Johnson on November 19, 1991 and had Volberding's signature stamp on it. At the time the form was filled out, however, there was no Quality Assurance Committee Review; the review was by a single medical director.
Dr. Johnson rejected plaintiff's retention as a health care provider based solely on his malpractice history, which did not fit within defendant's established criteria for acceptable malpractice history. At the time defendant decided to terminate the Agreement, defendant was aware of the 1977 malpractice case, which was settled in 1987. It also was aware of three dropped or dismissed malpractice cases against defendant. The 1977 malpractice case was settled for more than defendant's limit of $50,000; the number of cases was more than the limit of two.
As a result of defendant's termination of the Agreement, plaintiff lost a large percentage of his patients. He was terminated by other managed care entities and rejected by physician groups which require that members be one of defendant's health care providers. He also lost referrals from other physicians who were members of defendant's health care provider networks.
Defendant is not licensed under division 2 of the Health and Safety Code. It is not a facility certified to participate in the federal Medicare program as an ambulatory surgical center.
Plaintiff contends the summary judgment must be reversed and his motion for summary adjudication should have been granted, in that he established defendant's liability as a matter of law.
Plaintiff further contends the trial court erred in granting summary judgment to defendant, in that defendant failed to conclusively negate any essential element of his case.
Plaintiff also asserts the trial court abused its discretion in denying his motion to amend, since defendant would suffer no prejudice from the amendment and the amended complaint would rest on the same set of facts as the original complaint.
Plaintiff contends the summary judgment must be reversed and his motion for summary adjudication should have been granted, in that he established defendant's liability as a matter of law. We agree in part.
Summary judgment properly is granted if the “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken” in support of and in opposition to the motion “show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ.Proc., § 437c, subds. (b), (c).) Summary adjudication properly is granted if the foregoing “show that there is no triable issue as to any material fact” with respect to a cause of action, and the cause of action “has no merit.” (Id., § 437c, subds.(b), (c), (f)(1).) Summary adjudication is proper only if it resolves an entire cause of action; it cannot be used to adjudicate issues within the cause of action other than the existence of a duty or damages. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323, 39 Cal.Rptr.2d 296; Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 433, 29 Cal.Rptr.2d 413.)
Summary judgment is a drastic procedure, inasmuch as it denies the right of the opposing party to trial, and it thus should be used with caution. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) Therefore, the moving party's papers are strictly construed, accepting as fact only those portions not contradicted by opposing papers, while the opposing party's papers are liberally construed, all facts therein being accepted as true. (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52, 56, 129 Cal.Rptr. 32.)
Additionally, in ruling on a summary judgment motion, “[t]he determination whether facts have been adduced ․ which present triable issues of fact is to be made in the light of the pleadings.” (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380, 121 Cal.Rptr. 768.) “However, the court may only examine the pleadings in order to define the issues of which summary judgment disposes.” (Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 442, 165 Cal.Rptr. 741.) It may not consider the factual allegations of the pleadings except to the extent the facts alleged therein are uncontradicted by the papers submitted on the motion. (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626, 157 Cal.Rptr. 248; accord, Code Civ.Proc., § 437c, subd. (o).) “The purpose of a motion for summary judgment is ‘to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues.’ ” (Thompson v. Williams (1989) 211 Cal.App.3d 566, 572, 259 Cal.Rptr. 518, quoting from Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)
When it is the defendant who moves for summary judgment, summary judgment is proper if the defendant either proves an affirmative defense or disproves at least one essential element of the plaintiff's cause of action (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674; Brunelle v. Signore (1989) 215 Cal.App.3d 122, 127, 263 Cal.Rptr. 415), or if defendant shows that an element of the cause of action cannot be established (see Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653, 663, 230 Cal.Rptr. 50). (Code Civ.Proc., § 437c, subd. (o)(2).) The defendant “must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial.” (Chevron U.S.A., Inc., supra, at p. 548, 5 Cal.Rptr.2d 674.) Only if the defendant makes the requisite showing does the court need to examine the plaintiff's opposing papers to determine if they demonstrate the existence of a triable issue of material fact. (Code Civ.Proc., § 437c, subd. (o)(2); Chevron U.S.A., Inc., supra, at p. 548, 5 Cal.Rptr.2d 674; Perkins v. Howard (1991) 232 Cal.App.3d 708, 712, 283 Cal.Rptr. 764.)
Although the trial court may grant summary judgment on one basis, this court may affirm the judgment on another. On appeal, this court examines the facts and independently determines their effect as a matter of law. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203; Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.) It is not bound by the trial court's stated reasons, if any, supporting its ruling; it reviews the ruling, not the rationale. (Stratton v. First Nat'l Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1087, 258 Cal.Rptr. 721.)
Plaintiff first argues that summary judgment erroneously was granted in defendant's favor, in that the evidence establishes, as a matter of law, that defendant violated his common law right to fair procedure. However, defendant claims plaintiff set forth only two causes of action in his complaint-one for violation of Business and Professions Code section 805 et seq. and one for breach of written contract. Since he did not set forth a cause of action for violation of his common law right to fair procedure, defendant argues, he could not obtain a summary adjudication of the cause of action or prevent defendant from obtaining a summary judgment by presenting evidence of a violation of his common law right to fair procedure. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, 282 Cal.Rptr. 508; Hooks v. Southern Cal. Permanente Medical Group, supra, 107 Cal.App.3d at p. 442, 165 Cal.Rptr. 741.)
It is true plaintiff set forth only two causes of action in his complaint. However, the first cause of action was designated as “for violation of Business and Professions Code section 805 et. [sic ] seq. and for violation of fair procedure.” (Italics added.) Plaintiff alleged that “[b]y removing plaintiff from the defendants' Provider List, defendants deprived plaintiff of a vested property right without a hearing. It did so in violation of due process of law and by depriving the plaintiff of fair procedure.” The complaint does make violation of plaintiff's rights to due process of law and fair procedure issues in this case, despite the inartful pleading. Therefore, the evidence must be examined to determine whether there are triable issues of fact or one of the parties is entitled to summary adjudication with respect to these issues. (FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d at p. 381, 282 Cal.Rptr. 508.)
The “ ‘California courts have long recognized a common law right to fair procedure protecting individuals from arbitrary exclusion or expulsion from private organizations which control important economic interests [citations]․’ [Citations.] Fair procedure comes into play where private organizations are ‘ “tinged with public stature or purpose” ’ or attain a ‘ “quasi-public significance,” ’ as contrasted with purely private associations which have no larger ‘ “purpose or stature than pleasant, friendly and congenial social relationships.” [Citation.]’ [Citation.]” (Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th 1598, 1607, 33 Cal.Rptr.2d 381, italics in the original.)
In determining whether a private association or organization is required to provide fair procedure before excluding or expelling members, the judicial inquiry is “focused on the practical power of the entity in question to affect substantially an important economic interest.” (Ezekial v. Winkley (1977) 20 Cal.3d 267, 277, 142 Cal.Rptr. 418, 572 P.2d 32.) The preliminary question to be asked in determining whether adherence to fair procedure is required is whether the revocation of the privileges at issue would effectively impair an individual's right “ ‘to fully practice his profession.’ ” (Ascherman v. Saint Francis Memorial Hosp. (1975) 45 Cal.App.3d 507, 511, 119 Cal.Rptr. 507.)
In addition, as a general rule, “membership in an association, with its associated privileges, once attained, is a valuable interest which cannot be arbitrarily withdrawn. [This] comport[s] with the broader principle that one on whom an important benefit or privilege has already been conferred may enjoy legal protections not available to an initial applicant for the same benefit. [Citation.]” (Ezekial v. Winkley, supra, 20 Cal.3d at p. 273, 142 Cal.Rptr. 418, 572 P.2d 32.) Accordingly, procedural fairness in the form of adequate notice of the charges brought against the individual and an opportunity to respond to those charges (Smith v. Vallejo General Hospital (1985) 170 Cal.App.3d 450, 457, 216 Cal.Rptr. 189) is an indispensable prerequisite for one's expulsion from membership in such a society or association, notwithstanding provisions to the contrary in the association's bylaws (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 552-553, 116 Cal.Rptr. 245, 526 P.2d 253; see also Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 824, 140 Cal.Rptr. 442, 567 P.2d 1162).
The foregoing principles have been applied to professional organizations, in which membership may be an economic necessity for pursuit of the profession, or which wield such power as to affect “significant economic and professional concerns[, clothing them] with a ‘public interest.’ ” (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at pp. 550, 552, 116 Cal.Rptr. 245, 526 P.2d 253.) These principles also apply generally to all decisions concerning membership on a hospital staff. (Smith v. Vallejo General Hospital, supra, 170 Cal.App.3d at p. 457, 216 Cal.Rptr. 189; see also Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 626-627, 166 Cal.Rptr. 826, 614 P.2d 258.) In addition, they have been applied to expulsion from a residency program (Ezekial v. Winkley, supra, 20 Cal.3d at p. 270, 142 Cal.Rptr. 418, 572 P.2d 32) and appear to apply to the revocation of provisional staff privileges (see, e.g., Bonner v. Sisters of Providence Corp. (1987) 194 Cal.App.3d 437, 439-440, 239 Cal.Rptr. 530).
In Delta Dental Plan v. Banasky, supra, 27 Cal.App.4th 1598, 33 Cal.Rptr.2d 381, fair procedure principles were applied to a dental health plan's decisions regarding usual, customary and reasonable fees to be paid to participating dentists for their services. The plan's agreement with the participating dentists provided for internal review of such fees only; it did not provide for arbitration or judicial review, as requested by the dentists. (At pp. 1601-1602.) The court concluded that “Delta controls an important economic interest as the largest dental health plan in California, covering over 8,000,000 individuals. Therefore, continued membership on Delta's panel of participating dentists, and Delta's modification of a participating dentist's list of usual, customary and reasonable fees, implicate the right to fair procedure.” (Id. at p. 1607, 33 Cal.Rptr.2d 381.)
Following Delta Dental Plan was Ambrosino v. Metropolitan Life Ins. Co. (N.D.Cal.1995) 899 F.Supp. 438. Ambrosino involved a plaintiff podiatrist who entered into an agreement with defendant similar to the one at issue here-providing the plaintiff was an independent contractor and the agreement could be terminated with or without cause by giving 30 days' notice of termination. The plaintiff was placed on probation by his governing board for a short-term chemical dependency problem and his conduct while suffering from that chemical dependency. When defendant learned of the plaintiff's problems, his delistment was recommended for failure to meet the criteria for retention. He was given 30 days' notice of termination of the agreement. The plaintiff requested a hearing; his request was denied and his agreement terminated. (At pp. 440-441.)
The court cited Delta Dental Plan for the proposition that “[t]he common law right to fair procedures has recently been held to extend to health care providers' membership in provider networks such as that operated by Defendant, because managed care providers control substantial economic interests.” (Ambrosino v. Metropolitan Life Ins. Co., supra, 899 F.Supp. at p. 445.) Additionally, it was undisputed defendant “control[led] substantial economic interests” affecting the plaintiff, in that about 15 percent of the plaintiff's patients were insured by defendant. (Ibid.) Therefore, the plaintiff “had a common law right to fair procedures, including the right not to be expelled from membership for reasons which are arbitrary, capricious and/or contrary to public policy” (ibid.), the at-will provision in his agreement with defendant notwithstanding (id. at p. 446).
Defendant attempts to distinguish Ambrosino from the instant case on the ground the delistment of the plaintiff in Ambrosino was based on a prior history of substance abuse rather than malpractice. The court noted defendant's “absolute bar imposed on care providers with a history of substance abuse is in contrast to Defendant's treatment of a physician with a history of malpractice. A physician with a history of malpractice is not terminated from participating physician status without an individualized determination of the risk he poses to future patients, based upon such factors as the number of malpractice cases and the period of time in which they arose, as well as an evaluation of the availability of alternative medical care in the area.” (Ambrosino v. Metropolitan Life Ins. Co., supra, 899 F.Supp. at p. 441.)
The foregoing distinction would be important in determining whether a physician was “expelled from membership for reasons which are arbitrary, capricious and/or contrary to public policy.” (Ambrosino v. Metropolitan Life Ins. Co., supra, 899 F.Supp. at p. 445.) Ambrosino thus suggests, but does not hold, defendant's procedures are fair with respect to physicians expelled from membership for a history of malpractice. But Ambrosino-and its predecessor, Delta Dental Plan-still stand for the proposition the common law right to fair procedure applies to a health care plan's decision to terminate a health care provider's participation in the plan and overrides a provision in the agreement between the two allowing termination without cause.
There are cases which defendant relies upon for a contrary proposition. However, both predate Delta Dental Plan and Ambrosino.
In Abrahamson v. NME Hospitals, Inc. (1987) 195 Cal.App.3d 1325, 241 Cal.Rptr. 396, the plaintiff physician was given a position as head of the defendant's laboratory and pathology department pursuant to an agreement which provided he was an independent contractor and the agreement could be terminated without cause by either party upon written notice. (At p. 1327, 241 Cal.Rptr. 396.) When the plaintiff was terminated, he sued, claiming his termination was contrary to public policy, in that he could only be terminated without cause for a lawful reason. (Id. at pp. 1328-1329, 241 Cal.Rptr. 396.) The court held that because the plaintiff was an independent contractor, cases requiring good cause to terminate an employee were inapposite. (Id. at pp. 1329-1330, 241 Cal.Rptr. 396.) Additionally, because the agreement specified that he could be terminated without cause, there was no breach of the agreement when he was terminated without cause. (Id. at p. 1330, 241 Cal.Rptr. 396.)
In Abrahamson, termination was upheld where the agreement provided, as does the instant one, that the plaintiff was an independent contractor whose agreement could be terminated without cause. However, the fair procedure issue raised here was not raised in Abrahamson.
Abrams v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628, 30 Cal.Rptr.2d 603 notes the general rule, discussed above, that “when a hospital wishes to terminate the staff privileges of a doctor, it must do so in a ‘procedure comporting with the minimum common law requirements of procedural due process' wherein it is shown that the hospital has ‘adequate cause’ for termination.” (At p. 636, 30 Cal.Rptr.2d 603.) However, an exception to this rule arises “when terminations of staff privileges are incidental to a hospital's reorganization of one of its departments. In such cases, the terminations are the result of administrative/quasi-legislative decisions, rather than adjudicatory/quasi-judicial decisions about a doctor, and hence do not require a due process hearing. [Citation.]” (Ibid.) The court found the exception applicable to the case before it, precluding a requirement that the physician plaintiff receive a hearing before his hospital privileges were terminated. (Id. at p. 638, 30 Cal.Rptr.2d 603.)
The court also concluded the plaintiff had no right to a hearing under the hospital bylaws, in that his contract with the hospital provided he had no such right. (Abrams v. St. John's Hospital & Health Center, supra, 25 Cal.App.4th at p. 638, 30 Cal.Rptr.2d 603.) But this conclusion was based on the fact the plaintiff had an exclusive contract to provide medical services to the hospital, the court holding that doctors who obtain such exclusive contracts “are bound by the contractual termination provisions to which they have agreed. These doctors are to be contrasted with other staff physicians who do not hold these exclusive contracts but who are entitled to certain due process hearing rights pursuant to hospital and medical staff bylaws.” (Id. at p. 631, 30 Cal.Rptr.2d 603.)
Abrams, like Abrahamson, did not deal specifically with the fair procedure issue. Moreover, to the extent Abrams suggests a physician's contract rights prevail over due process rights, it must be noted Abrams was very limited in its holding. It applied only to a physician who had an exclusive contract to provide services. Such is not the case here.
Both Delta Dental Plan v. Banasky, supra, 27 Cal.App.4th 1598, 33 Cal.Rptr.2d 381 and Ambrosino v. Metropolitan Life Ins. Co., supra, 899 F.Supp. 438 support the conclusion plaintiff had a common law right to fair procedure before defendant could terminate his membership in its health care provider networks, the at-will provision in the Agreement notwithstanding. It is clear defendant controls substantial economic interests (id. at p. 445), as evidenced by the number of physicians involved in its provider networks as well as the effect on plaintiff's practice following his delistment. This provides a basis for imposition of a fair procedure requirement. (Ibid.; accord, Ezekial v. Winkley, supra, 20 Cal.3d at p. 277, 142 Cal.Rptr. 418, 572 P.2d 32.)
The question, then, is whether plaintiff's delistment was arbitrary, capricious and/or contrary to public policy as a matter of law, entitling plaintiff to summary adjudication of the matter. (Code Civ.Proc., § 437c, subds. (c), (f)(1); Ambrosino v. Metropolitan Life Ins. Co., supra, 899 F.Supp. at p. 445.) The decision to terminate the Agreement was based on a somewhat “individualized determination of the risk he pose[d] to future patients” (Ambrosino, supra, at p. 441); plaintiff's personal malpractice history was measured against a standard, and various aspects of that history were considered in reaching the decision. However, plaintiff was not provided with notice of the “charges” against him or an opportunity to be heard before the Agreement was terminated and he was removed from defendant's provider network. (Smith v. Vallejo General Hospital, supra, 170 Cal.App.3d at p. 457, 216 Cal.Rptr. 189.) He was not given the opportunity to demonstrate that his malpractice history did not support a finding he posed a risk to future patients, defendant's standards notwithstanding.
Even though Ambrosino suggests that defendant's procedure with respect to health care providers delisted on the basis of their malpractice history is not arbitrary, in our view there is at least a triable issue of fact as to whether it is arbitrary, and whether plaintiff was deprived of his common law right to fair procedure by an arbitrary delistment. However, plaintiff has not demonstrated he was entitled to summary adjudication of his cause of action for violation of his common law right to fair procedure. Even if he had demonstrated a violation as a matter of law, there is more to a cause of action than simply a violation. Plaintiff has not met his burden of establishing, with citations to the record and appropriate authority (People v. Dougherty (1982) 138 Cal.App.3d 278, 282, 188 Cal.Rptr. 123) that he was entitled to summary adjudication of the entire cause of action, as opposed to a particular issue (Code Civ.Proc., § 437c, subd. (f)(1); Hood v. Superior Court, supra, 33 Cal.App.4th at p. 323, 39 Cal.Rptr.2d 296; Regan Roofing Co. v. Superior Court, supra, 24 Cal.App.4th at p. 433, 29 Cal.Rptr.2d 413).
Plaintiff also contends he was entitled to summary adjudication in that he established, as a matter of law, that defendant violated its duty under Business and Professions Code section 805 et seq. to provide him with notice and a hearing prior to terminating the Agreement. These sections are part of division 2, chapter 1, article 11 of the Business and Professions Code, which regulates professional reporting in the healing arts.
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.” Subdivision (b) of section 809.1 provides that the written notice given to the licentiate must include notification of his or her right to request a hearing on the final proposed action.
Section 805, subdivision (a)(1), defines “peer review body.” Plaintiff contends defendant operates a peer review body within the meaning of paragraph (D) of subdivision (a)(1), which defines “peer review body” as “[a] committee organized by any entity consisting of or employing more than 25 licentiates of the same class which functions for the purpose of reviewing the quality of professional care provided by members or employees of that entity.”
Plaintiff first argues that defendant “clearly ‘consists of’ or ‘employs' more than 25 licentiates, in that [it] contracts with approximately 22,500 physicians in Southern California alone.” However, defendant is an insurance company. It contracts with health care providers, but there is no evidence it “consists of” or “employs” physicians. Plaintiff's Agreement and the agreement at issue in Ambrosino, for example, clearly indicate the health care providers are independent contractors, not employees.
A peer review body within the meaning of section 805, subdivision (a)(1)(D), must also have a “committee ․ which functions for the purpose of reviewing the quality of professional care provided by members or employees of that entity.” Plaintiff cites the following evidence to support his claim defendant had such a committee:
According to Regional Network Director Volberding, defendant had a “credentialing committee or a-a group functioning in that capacity.” Dr. Johnson reviewed plaintiff's malpractice history and concluded it did not meet defendant's established criteria. A form entitled “Quality Assurance Committee Review Sheet” was signed by Dr. Johnson and Volberding.
Plaintiff argues that because more than one person was involved, there was a committee. However, only one person, Dr. Johnson, actually performed a review; Volberding's signature was merely stamped on the form. Moreover, plaintiff cites no evidence to establish that this “committee” “functions for the purpose of reviewing the quality of professional care provided by” (Bus. & Prof.Code, § 805, subd. (a)(1)(D), italics added) the health care providers with which defendant contracted. There is no evidence the review undertaken was of the quality of professional care provided by plaintiff; the evidence indicates what was reviewed was plaintiff's past malpractice history.
Amici curiae on behalf of plaintiff argue, in essence, that the foregoing analysis of sections 805(a)(1)(D) and 809.1 of the Business and Professions Code too narrowly and literally construes those sections. The legislative intent behind the enactment of the statutes and the public policy of protecting patients' rights require that they be interpreted to include committees such as defendant's within the definition of “peer review body.” A short answer to this argument is that in the construction of statutes, the primary goal of the court is to ascertain and give effect to the intent of the Legislature. (Code Civ.Proc., § 1859; Kimmel v. Goland (1990) 51 Cal.3d 202, 208, 271 Cal.Rptr. 191, 793 P.2d 524.) The court looks first to the language of the statute; if clear and unambiguous, the court will give effect to its plain meaning. (Id. at pp. 208-209, 271 Cal.Rptr. 191, 793 P.2d 524; accord Rojo v. Kliger (1990) 52 Cal.3d 65, 73, 276 Cal.Rptr. 130, 801 P.2d 373.) Additionally, in construing a statute the role of the court “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” (Code Civ.Proc., § 1858; People v. White (1954) 122 Cal.App.2d 551, 554, 265 P.2d 115.)
The language of sections 805, subdivision (a)(1)(D), and 809.1 is clear and unambiguous. These sections simply do not apply to defendant or other insurers in a similar position. If the Legislature wishes to include such organizations within the purview of these statutes, it is up to the Legislature to amend the language of the statutes in order to do so. It is not appropriate for this court to rewrite the statutes under the guise of construction to include within their scope that which, by the terms of the statutes, is not included. (Code Civ.Proc., § 1858.)
Based on the foregoing, it is clear plaintiff failed to establish, as a matter of law, that he was “the subject of a final proposed action of a peer review body” which entitled him to notice and a hearing under Business and Professions Code section 809.1. Therefore, he was not entitled to summary adjudication of this matter either. (Code Civ.Proc., § 437c, subd. (f)(1); Hood v. Superior Court, supra, 33 Cal.App.4th at p. 323, 39 Cal.Rptr.2d 296; Regan Roofing Co. v. Superior Court, supra, 24 Cal.App.4th at p. 433, 29 Cal.Rptr.2d 413.)
Plaintiff further contends the trial court erred in granting summary judgment to defendant, in that defendant failed to conclusively negate any essential element of his case. We agree.
As discussed above, we hold plaintiff did have a common law right to fair procedure before defendant could terminate his membership in its health care provider networks. (Delta Dental Plan v. Banasky, supra, 27 Cal.App.4th 1598, 33 Cal.Rptr.2d 381; Ambrosino v. Metropolitan Life Ins. Co., supra, 899 F.Supp. 438.) There is a triable issue of fact as to whether plaintiff received fair procedure before defendant decided to terminate the Agreement and his participation in its health care provider networks. Therefore, summary judgment was not properly granted. (Code Civ.Proc., § 437c, subd. (c).)
Plaintiff also asserts the trial court abused its discretion in denying his motion to amend, since defendant would suffer no prejudice from the amendment and the amended complaint would rest on the same set of facts as the original complaint. We disagree.
Code of Civil Procedure section 473 provides the trial court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading․” “It is a basic rule of pleading in this state that amendments shall be liberally allowed so that all issues material to the just and complete disposition of a cause may be expeditiously litigated, but ‘the question whether the filing of an amended pleading should be allowed at the time of trial is ordinarily committed to the sound discretion of the trial court.’ ” (Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188, 272 P.2d 1.) As stated in Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965, 7 Cal.Rptr.2d 922: “In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial. (Code Civ.Proc. § 473.) Motions to amend are appropriately granted as late as the first day of trial [citation] or even during trial [citation] if the defendant is alerted to the charges by the factual allegations, no matter how framed [citation] and the defendant will not be prejudiced. ‘When a request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial court's discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments. This conflict “is often resolved in favor of the privilege of amending, and reversals are common where the appellant makes a reasonable showing of prejudice from the ruling.” ’ [Citation.]”
In plaintiff's motion to amend his complaint, he sought to add separate causes of action for violation of his right to fair procedure and his substantive rights. As discussed in part I, ante, plaintiff actually alleged violation of his fair procedure and due process rights in his original complaint, although his pleading was not a model of clarity. The amended complaint would merely have set forth these allegations as separate causes of action. These causes of action were based on the same allegations of wrongdoing as set forth in the original complaint. Defendant therefore could not have been prejudiced by the amendment, and it should have been permitted. (Honig v. Financial Corp. of America, supra, 6 Cal.App.4th at p. 965, 7 Cal.Rptr.2d 922.) However, inasmuch as plaintiff already stated these causes of action in his original complaint, he was not prejudiced by the trial court's denial of his motion to amend, and there was no abuse of discretion in the denial of leave to amend. (Ibid.)
The judgment is reversed. Plaintiff is to recover costs on appeal.
SPENCER, Presiding Justice.
ORTEGA and MASTERSON, JJ., concur.