ANTON v. BOARD OF TRUSTEES OF SAN ANTONIO COMMUNITY HOSPITAL

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 2, California.

Achilles P. ANTON, M.D., Plaintiff and Appellant, v. SAN ANTONIO COMMUNITY HOSPITAL, etc., Defendant and Respondent; BOARD OF TRUSTEES OF SAN ANTONIO COMMUNITY HOSPITAL, Real Party in Interest.

Civ. 15331.

Decided: February 11, 1976

Arthur J. Jaffee, Pomona, for plaintiff and appellant. Musick, Peeler & Garrett and Joseph A. Saunders, Los Angeles, for defendant and respondent and real party in interest.

OPINION

Plaintiff, a licensed physician and surgeon, appeals from a judgment denying his petition for writ of mandate to compel defendant, a private, nonprofit hospital corporation, to reappoint him to the medical staff. The two grounds on which judicial relief was sought were: (1) Defendant made its decision not to reappoint plaintiff without affording him a fair opportunity to be heard and (2) defendant's decision was not supported by the evidence.

The cause was submitted on a written agreed statement of facts.1 According to those stipulated facts, the background of this litigation is as follows.

Defendant is the governing board of San Antonio Community Hospital, a general hospital in the City of Upland in San Bernardino County (hereinafter ‘Hospital’). Its medical staff is organized pursuant to rules and regulations adopted by the board of directors in conformity with Business and Professions Code, section 2392.5 which states, inter alia, that it constitutes unprofessional conduct for a physician to practice in a hospital having five or more physicians unless the rules thereof include: ‘(a) Provision for the organization of physicians and surgeons . . . into a formal medical staff with appropriate officers and bylaws and with staff appointments on an annual or biennial basis. . . (d) Provision that adequate and accurate medical records be prepared and maintained for all patients.’

A set of bylaws for the medical staff was adopted in 1968. These bylaws will hereinafter be referred to as the 1968 bylaws. A revised set of bylaws for the medical staff was adopted February 19, 1974, and became effective February 25, 1974, when approved by the board of directors. The 1974 bylaws, hereafter referred to as the revised bylaws, were based upon ‘Guidelines For The Formulation Of Medical Staff Bylaws, Rules And Regulations,’ published by the Joint Commission on Accreditation of Hospitals, the national organization for accreditation of hospitals responsible for accrediting San Antonio Community Hospital.

Plaintiff is a physician and surgeon practicing medicine in San Bernardino County. For 13 years preceding December 1973 plaintiff was a member of the medical staff of Hospital. During that time plaintiff was the subject of several corrective and/or disciplinary actions taken by committees of the medical staff of Hospital, relating to plaintiff's failure to complete his hospital medical records.

In October 1973 the medical staff commenced an investigation of Plaintiff's hospital medical practices. On October 26, 1973, based upon a review of plaintiff's October medical admissions, it was concluded, inter alia, that ‘there is evidence of poor medical judgment and overutilization of the hospital. Many of these patients did not appear to need actual hospital care, multiple tests were performed without medical indication, and there were several questionable industrial cases.’

In December 1973 the Medical Audit, Utilization and Medical Records Committee (hereinafter Audit Committee) reviewed hospital records of eight consecutive patient admissions by plaintiff and concluded he had been derelict in his hospital practice in two respects: Failure to prepare adequate medical history and physical examination reports on his patients' hospital records and overutilization of hospital facilities. The committee recommended that appropriate action be taken in accordance with the 1968 medical staff bylaws.

In December 1973 the board of directors, having theretofore been apprised of the Audit Committee's recommendation, reappointed all staff members, except plaintiff, for the year 1974. Action on plaintiff's membership was tabled pending further review of the Audit Committee's recommendation.

In January 1974 the Executive Committee and the Credential Committee, meeting jointly, decided that plaintiff's hospital privileges should be suspended pending final action on his staff membership for 1974. Plaintiff was notified of the suspension and of his right to a ‘preliminary hearing’ before the Executive Committee. The ‘preliminary hearing’ was held at plaintiff's request and the suspension was upheld.

In February 1974 plaintiff was notified that the board of directors had reviewed and approved the recommendation of the Audit Committee and that he was entitled to a hearing before a Judicial Review Committee. Upon plaintiff's request for such a hearing, he was notified by letter that a Judicial Review Committee hearing would be held on March 5, 1974, to consider ‘your nonreappointment to the Medical Staff and the recommendation of the Executive and Credentials Committees regarding suspension of all hospital privileges.’ The letter further stated:

‘The charges on which the recommendation for suspension was based include failure to demonstrate a continued satisfactory level of professional care and judgment as follows:

‘1) Your lack of cooperation and repeated violations of the Rules and Regulations of the Medical Staff Bylaws relative to the completion of histories and physical examinations within the required period, as evidenced by the following records:

‘[List of hospital records by number.]

‘2) Repeated violations of the Rules and Regulations of the Medical Staff Bylaws relative to the completion of hospital records in general, as evidenced by the following records:

‘[List of hospital records by number.]

‘3) Failure to visit hospitalized patients on a timely basis, as evidenced by the following records:

‘[List of hospital records by number.]

‘4) Over utilization of hospital facilities and services, as evidenced by the following records:

‘[List of hospital records by number.]’

At the appointed time and place a hearing on the charges was held before a Judicial Review Committee composed of five medical staff members and two alternates appointed by the Executive Committee. The board of directors employed an attorney to preside over the hearing. However, neither plaintiff nor the medical staff was represented by counsel; plaintiff was assisted by a physician and the staff was represented by two members. Following the hearing, the Judicial Review Committee determined that the charges were true and recommended to the board of directors that plaintiff's suspension remain in effect and that he not be reappointed to the medical staff for the year 1974. The hearing before the Judicial Review Committee on March 5, and March 11, 1974 was conducted pursuant to the revised bylaws.

On March 25, 1974, plaintiff requested in writing an appellate review of the Judicial Review Committee decision as authorized by the 1968 bylaws. By letter dated April 10, 1974, plaintiff was notified that, on April 24, 1974, an appellate review would be conducted for him by the board of directors as authorized by the revised bylaws.

On April 24, 1974, plaintiff appeared for his appellate review hearing accompanied by his attorney Arthur J. Jaffee. Also present at the hearing were the members of the board of trustees of the hospital and their attorney Joseph A. Saunders. No one appeared at the hearing on behalf of the medical staff or its Executive Committee. Mr. Jaffee introduced himself and stated that plaintiff would answer any questions that the board would care to put to him. Mr. Saunders stated that it was incumbent upon plaintiff and Mr. Jaffee to support their complaint that the Judicial Review Committee hearing procedure did not follow the medical staff bylaws and that it was incumbent upon the board to rectify any errors in the hearing process. Mr. Jaffee articulated the following alleged errors or improprieties:

(a) The Judicial Review Committee hearing was improperly conducted under the revised bylaws and should have been conducted under the 1968 bylaws;

(b) The disciplinary action taken by the Judicial Review Committee was overly harsh;

(c) None of the allegations made at the hearing were valid with the exception of that which related to plaintiff's failure to complete histories and physical examinations on the hospital charts within the specified time periods;

(d) The Judicial Review Committee erroneously refused to review selected medical records which plaintiff had brought with him from his own office files;

(e) Plaintiff was never able to present an adequate defense.

Mr. Jaffee stated that the Judicial Review Committee hearing contained other flaws but that he would not enumerate them at that time. Mr. Saunders stated that Mr. Jaffee should call the board's attention to each alleged procedural impropriety in order to become able to claim exhaustion of his intraorganizational remedies should he subsequently desire to do so. Again, Mr. Jaffee declined to further enumerate alleged errors or to become more specific regarding alleged prejudice, stating that this hearing was not the appropriate forum for so doing. After deliberation, on May 13, 1974, the board of directors resolved to sustain the decision of the Judicial Review Committee in regard to plaintiff's staff membership.

In the mandamus proceeding in the court below, the trial judge rendered a notice of intended decision in which he determined: Plaintiff was not entitled to a trial de novo on the ‘charges'; the substantial evidence test rather than the independent judgment standard should be applied in reviewing the decision of the hospital; all charges except the second were supported by substantial evidence; petitioner was accorded ‘minimal due process' and a fair hearing. Detailed findings and conclusions were made and judgment was entered denying the petition.

Plaintiff's contentions on appeal are basically twofold: (1) The court erred in applying the substantial evidence test instead of the independent judgment standard in reviewing defendant's decision, and (2) the court erred in finding and concluding that defendant accorded plainfiff a fair hearing. We have concluded that both of plaintiff's contentions are without merit, and, accordingly, we affirm the judgment of the trial court.

I

Scope of Judicial Review

Plaintiff's contention that the trial court should have employed the independent judgment standard rather than the substantial evidence test is devoid of merit.

The principle enunciated Strumsky v. San Diego County Employees Retirement Ass'n, 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, is grounded on the doctrine of separation of powers. That doctrine cannot apply to decision making by nonpublic entities.

Furthermore, as a matter of policy, it would be unwise to impose upon courts the burden of reweighing evidence presented before a medical panel on matters of hospital medical practice and standards. Courts should not intrude on hospital autonomy so long as the hospital's rules and procedure are fair and reasonable. (Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal.3d 541, 557, 558, 116 Cal.Rptr. 245, 526 P.2d 253; see also Ascherman v. San Francisco Medical Society, 39 Cal.App.3d 623, 643, 114 Cal.Rptr. 681.)

II

Fair Hearing

An entity operating a private, nonprofit hospital assumes a public trust which carries with it an obligation to deal fairly with the public it serves and with the doctors to whom it accords hospital privileges. (Ascherman v. Saint Francis Memorial Hosp., 45 Cal.App.3d 507, 511, 119 Cal.Rptr. 507; Silwer v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564, 570; cf. Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at pp. 549–550, 116 Cal.Rptr. 245, 526 P.2d 253, including fn. 7.) The fiduciary obligation to the doctors requires observance of ‘fair procedure’ in making decisions pertaining to medical staff membership. (Ascherman v. Saint Francis Memorial Hosp., supra; Silver v. Castle Memorial Hospital, supra; cf. Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at pp. 549–557, 116 Cal.Rptr. 245, 526 P.2d 253, passim.) The ‘fair procedure’ requirement, at least in the context of staff membership in a private hospital, is a duty imposed by the common law rather than by the constitution. (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at p. 550, fn. 7, 116 Cal.Rptr. 245, 526 P.2d 253.)

Plaintiff advances a number of reasons why he believes he was denied a fair hearing before the Judicial Review Committee. First he contends that the Judicial Review hearing should have been conducted pursuant to the 1968 bylaws rather than the revised bylaws. This contention is not meritorious.

The Judicial Review hearing was held on March 5 and March 11, 1974. The effective date of the revised bylaws was February 25, 1974, prior to commencement of the Judicial Review hearing. Moreover, plainfiff has not shown how he was prejudiced by the conduct of the Judicial Review hearing pursuant to the revised bylaws. It is not true as plaintiff alleges that his burden of proof was thereby increased. The pertinent part of the 1968 bylaws provided:

‘In any hearing which shall have been requested because of the failure to . . . reappoint . . ., the candidate shall have the burden of proving, by clear and convincing evidence, that the recommendation of the Advisory Committee was unreasonable or erroneous.’

The pertinent part of the revised bylaws provides:

‘In all cases in which a hearing is conducted under this code, . . . the Judicial Review Committee shall rule against the person who requested the hearing unless it finds that said person has proved, by clear and convincing proof, that the action of the committee or body that prompted the hearing was arbitrary, unreasonable or not sustained by the evidence.'2

In any event the differences between 1968 bylaws and the revised bylaws are all procedural in nature, and, even if the application of the revised bylaws could be said to be retrospective because some of the events occurred prior to their adoption (but see, Coast Bank v. Holmes, 19 Cal.App.3d 581, 593–594, 97 Cal.Rptr. 30 and authorities there cited), the retroactive application of procedural, as opposed to substantive, changes violated no right of plaintiff. (Cf. Angeli v. Lischetti, 58 Cal.2d 474, 478, 24 Cal.Rptr. 845, 374 P.2d 813; Norton v. City of Pomona, 5 Cal.2d 54, 65–66, 53 P.2d 952.

Next, plaintiff contends that it was unfair not to permit him to be represented by counsel at the Judicial Review hearing. With respect to representation by counsel the revised bylaws provide:

‘The hearings provided by these bylaws are for the purpose of intraprofessional resolution of matters bearing on conduct or professional competency. Accordingly, neither the person requesting the hearing, the Executive Committee, nor the Board of Trustees shall be represented in any phase of the hearing or appeals procedure by an attorney at law unless the judicial review committee, in its discretion, permits both sides to be represented by legal counsel. The person requesting the hearing shall be entitled to be accompanied by and represented at the hearing only be a physician and surgeon licensed to practice in the State of California who, preferably, is a member in good standing of the medical staff.’

The Judicial Review hearing was directed almost exclusively to questions of medical practice. ‘It should be within the discretion of the hospital board as to whether counsel may attend the hearing and participate in the proceedings. Participation of counsel would probably not be necessary unless the hospital's attorney is used in the proceedings or the extreme nature of the charges involved indicated that representation by an attorney would be advantageous. Such a limitation would not preclude a doctor from consulting an attorney prior to the hearing even though the attorney was not allowed to participate in the hearing itself.’ (Silver v. Castle Memorial Hospital, supra, 497 P.2d at pp. 571–572; accord: Ascherman v. San Francisco Medical Society, supra, 39 Cal.App.3d 623, 648, 114 Cal.Rptr. 681.) We conclude it was not unfair in any fundamental sense to deny plaintiff the right to be represented by counsel at the Judicial Review hearing. Plaintiff apparently gave no advance notice of his desire to be represented by counsel, and, at the time and place set for hearing no attorney was available to represent Hospital. Undoubtedly, that is the reason that plaintiff was told his request for representation by counsel at the Judicial Review hearing was untimely.

Next, plaintiff contends that he was not provided an impartial judge and jury at the Judicial Review hearing. The ‘judge’ was not a judge at all in the sense that he had anything to do with making the decision. He was simply an attorney employed by the board of directors for the purpose of presiding at the hearing. No assertion is made that the presiding attorney conducted himself in any but an impartial manner.

Plaintiff does assert that three of the five members of the Judicial Review Committee were prejudiced against him. Plaintiff made no such assertion at the time of the Judicial Review hearing, nor, even when he was represented by counsel, at the appellate review hearing before the board of directors. Thus, as to this claim of unfair treatment, plaintiff cannot prevail because he failed to exhaust his intraorganizational remedies. (Holderby v. Internat. Union etc. Engrs., 45 Cal.2d 843, 846, 291 P.2d 463; Levy v. Magnolia Lodge, I.O.O.F., 110 Cal. 297, 307–308, 42 P. 887; cf. Bohn v. Watson, 130 Cal.App.2d 24, 36–37, 278 P.2d 454.)

In any hearing occasioned by the governing board's failure to reappoint a physician to the staff, both the 1968 and the revised bylaws require the applicant to prove by clear and convincing evidence that the action of the committee or body that prompted the hearing was arbitrary, unreasonable or not sustained by the evidence. (See text opposite fn. 2, ante.) Plaintiff contends that the burden of proof thus imposed upon his by the bylaws is oppressive and constitutes ‘unfair procedure.’ We have concluded that this contention also lacks merit.

In the first place, this contention was not presented by plaintiff at either the Judicial Review Committee hearing nor the appellate review hearing at which plaintiff was expressly urged by the Board's attorney to present every alleged procedural irregularity or unfairness. Thus, this contention is barred by plaintiff's failure to exhaust his intraorganizational remedies. (Holderby v. Internat. Union etc. Engrs., supra, 45 Cal.2d at p. 846, 291 P.2d 463; Levy v. Magnolia Lodge, I.O.O.F., supra, 110 Cal. 297, 307–308, 42 P. 887; cf. Bohn v. Watson, supra, 130 Cal.App.2d at pp. 36–37, 278 P.2d 454.)

It is suggested that this contention of plaintiff could not have been raised before the board of directors on appellate review because the grounds for appeal prescribed by the revised bylaws are as follows: ‘(a) Substantial failure of the Judicial Review Committee, Executive Committee, or Board of Trustees to comply with the procedures required by the hospital medical staff bylaws in the conduct of hearings and decisions upon hearings so as to deny due process and a fair hearing; and (b) that the decision of the Judicial Review Committee was not supported by substantial evidence.’ Of course, where internal review is unavailable or inadequate, pursuit of such review is not a prerequisite to judicial action. (Martino v. Concord Community Hosp. Dist., 233 Cal.App.2d 51, 57, 43 Cal.Rptr. 255; see Holderby v. Internat. Union etc. Engrs., supra, 45 Cal.2d at p. 847, 291 P.2d 463.) However, we cannot accept the suggestion.

“[W]henever a private association is legally required to refrain from arbitrary action, the association's action must be both substantively rational and procedurally fair.” (Ascherman v. Saint Francis Memorial Hosp., supra, 45 Cal.App.3d at pp. 511–512, 119 Cal.Rptr. at p. 509; accord: Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at pp. 549–554, 116 Cal.Rptr. 245, 526 P.2d 253, passim.) Although the grounds for appeal set forth in the revised bylaws do not expressly prescribe arbitrariness as a ground for appeal, it is clear enough that an appellate review by the board of directors could be had on that ground. One of the grounds provided for in the revised bylaws is ‘conduct of hearings and decisions upon hearings so as to deny due process and a fair hearing.’ This ground would certainly include arbitratiness. Moreover, as previously noted (see text opposite fn. 2, ante), one basis for reversal of the result reached by the Judicial Review Committee on appellate review by the board of directors is ‘that the action of the committee or body that prompted the hearing was arbitrary, unreasonable or not sustained by the evidence.’ (Emphasis added.) Thus, plaintiff could have raised at the appellate review hearing any procedural unfairness of which he complained. Indeed, plaintiff was invited to do that very thing by the attorney representing the Board at the appellate review hearing, but declined to do so.

Secondly, the trial court did not find the burden of proof imposed upon plaintiff to be unfair in any fundamental sense, and neither do we. While placing the burden of disproving charges made against him by clear and convincing evidence does not strike our fancy, we are not at liberty to substitute our subjective attitudes for the rules and regulations adopted by the medical staff for its government. (Cf. Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at p. 558, 116 Cal.Rptr. 245, 526 P.2d 253; Ascherman v. San Francisco Medical Society, supra, 39 Cal.App.3d at p. 643, 114 Cal.Rptr. 681.) ‘The common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial [citation omitted], nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for an applicant to present his position.’ (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at p. 555, 116 Cal.Rptr. at p. 255, 526 P.2d at p. 263.)

‘At a time when the standards of professional conduct and service are subject to aggressive consumer assault and when hospitals and physicians are exposed to increasing horizons of liability—often predicated upon principles of vicarious or imputed liability—courts should not unduly interfere with legitimate and ostensible goodfaith efforts of private hospitals and physicians to protect themselves.’ (Ascherman v. Saint Francis Memorial Hosp., supra, 45 Cal.App.3d at p. 516, 119 Cal.Rptr. at p. 512 [Kane, J., concurring and dissenting].)

The judgment is affirmed.

I respectfully dissent. In my opinion the crucial issue on this appeal is whether the provision of the bylaws placing upon the doctor the burden of disproving the ‘charges' by ‘clear and convincing proof’ comports with fair procedure.

The revised bylaws pursuant to which the hearing before the Judicial Review Committee was conducted contain the following provision on burden of proof:

‘In all cases in which a hearing is conducted under this code, after all the evidence has been submitted by both sides, the Judicial Review Committee shall rule against the person who requested the hearing unless it finds that said person has proved, by clear and convincing proof, that the action of the committee or body that prompted the hearing was arbitrary, unreasonable or not sustained by the evidence.’ Plaintiff urges that the foregoing rule placed upon him an unfair burden to disprove the charged derelictions of duty.

Defendant's preliminary response is that plaintiff is precluded from raising the issue because he failed to raise it at the administrative Appellate Review hearing. Defendant's contention is predicated upon the doctrine that one who seeks judicial relief against an organization of which he is a member must first invoke and exhaust applicable internal remedies provided by the organization. (See Holderby v. Internat. Union etc. Engrs., 45 Cal.2d 843, 846, 291 P.2d 463; Martino v. Concord Community Hosp. Dist., 233 Cal.App.2d 51, 56–57, 43 Cal.Rptr. 255.)

However, the bylaws provided only two grounds of appeal to the Appellate Review Committee: ‘(a) Substantial failure of the Judicial Review Committee . . . to comply with the procedures required by the hospital medical staff bylaws in the conduct of hearings and decisions upon hearings so as to deny due process and a fair hearing; and (b) that the decision of the Judicial Review Committee was not supported by substantial evidence.’ Thus, the only questions which could have been properly raised before the Appellate Review Committee were whether the Judicial Review Committee hearing was conducted in accordance with the bylaws and whether its decision was supported by substantial evidence. This is substantiated by the record of the instant Appellate Review Committee hearing. According to the stipulated facts, at the outset of that hearing counsel for the board announced that it was incumbent upon plaintiff to show in what respects the proceedings before the Judicial Review Committee violated the medical staff bylaws. It is apparent from the record that any attempt to challenge the validity of the bylaws themselves would have been futile.

Having exhausted his internal remedies to the extent permitted by the bylaws, plaintiff is not now precluded from raising the burden of proof issue in a judicial forum. When internal review is unavailable or inadequate, pursuit of such review is not a prerequisite to judicial action. (Holderby v. Internat. Union etc. Engrs., supra, 45 Cal.2d 843, 847, 291 P.2d 463; Elevator Operators etc. Union v. Newman, 30 Cal.2d 799, 810, 186 P.2d 1; Martino v. Concord Community Hosp. Dist., supra, 233 Cal.App.2d 51, 56–57, 43 Cal.Rptr. 255; DeMonbrun v. Sheet Metal Workers, 140 Cal.App.2d 546, 558, 295 P.2d 881.) Thus, the merits of the burden of proof issue cannot be avoided.

At oral argument before this court, defendant's counsel candidly conceded that the bylaws mean that once ‘charges' are filed against a doctor, he becomes the ‘plaintiff’ and assumes the burden of disproving the charges by ‘clear and convincing proof.’ In my opinion to so place the burden of proof upon the accused doctor is incompatible with rudimentary notions of fair procedure.

I realize that common law ‘fair procedure’ does not require adherence to any specific type of procedure, much less to the formal procedural rules governing court trials, and that hospital medical staffs should be accorded wide latitude in devising rules of procedure for their organization. (Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal.3d 541, 555, 116 Cal.Rptr. 245, 526 P.2d 253.) However, the procedure formulated must afford an individual who will be adversely affected by a decision ‘some meaningful opportunity to be heard in his defense.’ (Pinsker v. Pacific Coast Society of Orthodontists supra, 12 Cal.3d 541, 555–556, 116 Cal.Rptr. 245, 255, 526 P.2d 253, 263.)

The issue tendered at a hearing has an important bearing upon the reasonableness of the procedure adopted. On an initial application for staff membership, it may not be unreasonable to place upon the applicant the burden of showing that he possesses the necessary qualifications for membership. (Cf. Martin v. Alcoholic Bev. etc. Appeals Bd., 52 Cal.2d 259, 265, 341 P.2d 291; CEEED v. California Coastal Zone Conservation Com., 43 Cal.App.3d 306, 329–330, 118 Cal.Rptr. 315.) However, when, as here, the hearing concerns suspension of hospital privileges and denial of reappointment to the medical staff on charges of dereliction of proper medical practices, fair procedure entitles the doctor to adequate notice of the ‘charges' against him, a fair opportunity to be heard in his defense, and a decision based on evidence adduced at the hearing. (Silver v. Castle Memorial Hospital, 53 Haw. 475, 497 P.2d 564, 571, cert. den., 409 U.S. 1048, 93 S.Ct. 517, 34 L.Ed.2d 500. See Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d 541, 555–556, 116 Cal.Rptr. 245, 526 P.2d 253; Ascherman v. San Francisco Medical Society, 39 Cal.App.3d 623, 647–649, 114 Cal.Rptr. 681.)

Although the ‘fair procedure’ requirement in the present context is not grounded on the Constitution, it nevertheless devolves from the “fundamental principle of justice that no [person] may be condemned or prejudiced in his rights without an opportunity to make his defense.” (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d 541, 555, 116 Cal.Rptr. 245, 255, 526 P.2d 253, 263, quoting from Cason v. Glass Bottle Blowers Ass'n, 37 Cal.2d 134, 143, 231 P.2d 6.) Fair opportunity to make one's defense presupposes notice of the charges and production of supporting evidence by the one making the charges. Confrontation by witnesses and the supporting evidence is essential to a fair opportunity to defend. To place upon the doctor the burden of disproving by ‘clear and convincing proof’ charges of dereliction of his professional responsibilities simply because charges have been filed against him is incompatible with the traditional Anglo-American concept of fundamental fairness. One of the most cherished principles of our system of justice is the presumption of innocence. On charging another with wrongdoing bears the burden of proving it. (Evid.Code, § 520.1 See Hunter v. Hunter, 111 Cal. 261, 267, 43 P. 756.)

The bylaw in question stands in clear defiance of the foregoing principles. Under the terms of the bylaw, if the doctor fails to produce evidence to disprove the charges, the Judicial Review Committee must ‘rule against’ him even though no evidence has been presented in support of the charge. This is precisely what happened in the case at bench with respect to one of the charges. The Judicial Review Committee found all charges to be true despite the fact that no evidence had been adduced on the second charge. In its memorandum of authorities in the court below defendant's counsel explained the action as follows: ‘The Judicial Review Committee may have concluded that the charge should be resolved against petitioner notwithstanding that no evidence was taken on the point because the burden of proof was upon [plaintiff].’

The bylaw not only places the burden of proof on the doctor, it also requires him to disprove the charges by ‘clear and convincing proof.’ Defendant asserts that this requirement is not unusual in the law, pointing to the application of similar standards of proof in varying situations in civil cases. (See IX Wigmore Evidence, § 2498, pp. 329–334.) However, in those situations the ‘clear and convincing proof’ burden is placed on the one charging another with wrongdoing, not on the one charged, e. g., when one charges another with fraud or undue influence, he must prove the charge by clear and convincing evidence.

The hospital seeks to justify its rule regarding the burden of proof on policy grounds. It is true that allocation of the burden of proof is often used as a tool for advancing desirable social goals and that, other than in criminal proceedings, allocation of the burden of proof rests largely in the discretion of the legislative body. (See CEEED v. California Coastal Zone Conservation Com., supra, 43 Cal.App.3d 306, 329–330, 118 Cal.Rptr. 315.) Although the hospital, as well as the public, has a valid interest in the maintenance of quality control over medical services rendered at its facility, that interest must be balanced against the doctor's fundamental right to pursue his profession. An adverse decision on a charge of dereliction of proper hospital medical practices will in practical effect preclude the doctor from practicing his profession. He will suffer not only deprivation of hospital privileges but incalculable injury to his professional reputation as well. While the oppressive burden of proof rule in question no doubt facilitates removal of staff members whose hospital practice is deficient in the eyes of the hospital, it can also result in the unjustified removal of a qualified staff member on the basis of unsupported charges. I fail to see how control over the quality of hospital medical practices will be jeopardized by requiring the hospital to bear the burden of proving charges of dereliction of professional duty against its staff members. Indeed, rules of procedure which insure fair treatment of doctors can only enhance the morale of the medical staff thereby improving the overall standard of medical practice at the hospital.

The hospital seeks to justify its burden of proof rule on the ground that evidence pertaining to a particular charge or issue may rest exclusively within the knowledge of the doctor. While this may be an argument in favor of placing on the doctor the burden of going forward with evidence respecting a particular issue (Witkin, Evidence (2d ed. 1966) § 27, p. 29), it is not a justification for placing the burden of disproving the charges on him.

Nor is the current medical malpractice ‘ ‘crisis' a valid justification for judicial approval of the rule. Indeed, it is particularly during periods of social or political ‘crisis' that courts must be ever vigilant to insure that expedient solutions to the problems besetting society do not run roughshod over individual rights.

The question remains whether plaintiff was prejudiced. As has been noted one of the charges was found to be true even though no evidence was adduced upon it by either party. The finding on that charge may have influenced the Judicial Review Committee in determining the type of disciplinary action to be taken. Furthermore, although the staff did present evidence on the other charges, the Judicial Review Committee's findings may have been influenced by the mandate of the bylaws that unless plaintiff disproves the charge by clear and convincing proof, it ‘shall rule against’ him. I do not believe it can be said that there is no reasonable probability that a different decision would have been reached had the bylaws no imposed upon plaintiff the severe burden of proof.

I would reverse the judgment with directions to issue a peremptory writ of mandate commanding defendant to set aside its decision upholding plaintiff's suspension and denying him reappointment to the medical staff and to reconsider those matters pursuant to a fair procedure consonant with the views heretofore expressed.

FOOTNOTES

1.  The parties stipulated that the agreed statement of facts shall be treated as an answer to the petition and as a return to the alternative writ of mandate. The stipulation reserved to plaintiff certain rights, including the right to request the trial court to conduct a trial de novo on the charges which formed the basis for defendant's decision.

2.  Plaintiff's contention that the burden of proof was unfair and oppressive will be dealt with infra.

1.  Evidence Code section 520 provides:‘The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue.’

KAUFMAN, Associate Justice.

GARDNER, P. J., concurs.