AVOL v. HAWTHORNE COMMUNITY HOSPITAL INC

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Court of Appeal, Second District, Division 1, California.

Milton AVOL, M.D., Petitioner and Appellant, v. HAWTHORNE COMMUNITY HOSPITAL, INC., Respondent.

Civ. 64151.

Decided: August 17, 1982

Maupin, Cutler, Teplinsky & White, James C. Maupin and Bonnie Pastor, Los Angeles, for petitioner and appellant. Musick, Peeler & Garrett and James B. Bertero, Los Angeles, for respondent.

Milton Avol, a licensed and practicing physician, appeals from a judgment denying his petition for writ of mandate (Code Civ.Proc., § 1094.5) to compel respondent, Hawthorne Community Hospital, to reinstate him to full staff privileges.

 Hospital Proceedings

On the evening of October 29, 1980, the hospital's board of directors and chief of staff, Dr. Bernard Dyer, summarily suspended Dr. Avol from the medical staff, including all privileges, and from his chairmanship of the department of surgery.   Such summary suspension was based on the decision of the Health Care Financing Administration to deny reimbursement to Avol under the Medicare program for five years on the grounds that he had furnished services which failed to meet professionally recognized standards of health care and his “patterns of practice places [sic ] Medicare beneficiaries in high risk situations which can be avoided”;  that determination was based on investigation of Dr. Avol by the California Professional Standards Review Organization (PSRO), Area 23.   Dr. Avol was notified immediately of his suspension by a telephone call from Dr. Dyer and was given written notification by letter sent by certified mail the following morning.   At a special meeting of the executive committee of the medical staff on October 30, 1980, its chairman (Dr. Dyer) explained Avol's suspension and the reasons therefor, and suggested that the committee review Avol's clinical work in the hospital at its meeting of November 4, 1980.   Dr. Avol attended the November 4 meeting and requested an immediate hearing by the executive committee to determine whether his suspension should continue.   The chairman explained that any lifting of the suspension would remain in effect pending review by the judicial review committee whose findings would be final subject only to the approval of the board of directors.   The executive committee then voted to reinstate Avol's staff privileges subject to the condition that any procedure conducted by him involving angiographic study or lumbar puncture be accompanied by consultation with a neurosurgeon or vascular surgeon.

On November 6, 1980, Dr. Avol requested a hearing by the judicial review committee.   On November 25, the board of directors was given the names of the physicians selected by the medical staff executive committee to serve on the judicial review committee.   The board of directors thereafter appointed an attorney to act as hearing officer.   The executive committee was not willing to produce formal written charges against Avol because it was not the “complaining party,” the charges having originated with the board of directors.   At the December 2 meeting of the executive committee, its chairman reported that the board of directors would submit a list of the charges against Dr. Avol and such charges would be put in concise language by the executive committee.   The chairman suggested that the committee authorize the chief of staff to submit the list of charges as the board's draft “so that the proceedings can go ahead.”   On December 4, 1980, the executive committee considered the list of charges against Avol prepared by its chairman on behalf of the board of directors;  a motion to “accept the charges as stated as being concise in the terms defined by our Bylaws” was defeated.   In a letter dated December 5, 1980, and signed by Dr. Dyer as chief of staff, Avol was informed of the date, time and place of the hearing, the names of the physicians who would serve on the judicial review committee, and the name of the hearing officer;  the letter also contained a list of the charges Avol would be called upon to answer at the hearing.1  On December 22, 1980, the executive committee voted to remove the restrictions which it imposed on Dr. Avol's staff privileges when those privileges were reinstated.   On December 24, Avol informed the chief of staff and the hospital's executive vice president that he would not appear at the hearing because while the bylaws of the medical staff require that the executive committee “shall state in writing, in concise language, the acts or omissions with which the Medical Staff member is charged,” the executive committee had declined to formulate the charges against him.

On December 30, 1980, hearing before the judicial review committee commenced as scheduled.   The physicians on the committee at that time were doctors Strom, Hutchison, Axler, Berman and Clifton.   Dr. Dyer was present as a representative of the board of directors, having been appointed by the board to present the case against Avol.   Also present were two witnesses for the board.   Avol did not appear.   The hearing officer overruled a challenge to Dr. Berman's presence on the judicial review committee made by the board of directors on the ground that Berman was a coplaintiff with Avol in a lawsuit against the board and therefore could be biased.   After extensive discussion of the procedures which resulted in the charges and in the creation of the judicial review committee, the hearing officer advised the committee that it was properly constituted, the charges had been brought in an appropriate manner, and the board of directors was entitled to present evidence in support of the charges.   The committee then voted to give Avol further notice of a hearing on the merits in order that he might appear and defend against the charges.

Avol appeared at the continued hearing, held January 7, 1981.   On that occasion Dr. Mitchell served on the judicial review committee, and Dr. Axler was absent.   Avol had been served with a transcript of the proceedings of December 30, 1980, and the hearing officer explained to him the rulings made at those proceedings.   Avol stated that he was not present to participate in a hearing on the merits because no formal charges had been made against him as required by the bylaws and thus there were no charges for him to answer;  also, Avol believed that his summary suspension was not in accord with the bylaws.   The hearing officer stated that he would consider Avol's arguments as a motion for reconsideration of the officer's ruling that the hearing would proceed on the merits.   After further argument, and on advice of the hearing officer, the committee determined that the matter should go forward.   Avol then left the hearing.   Dr. Stanley Goodman, a neurosurgeon, was called as a witness on behalf of the board and gave testimony based on his review of the charts specified in the list of charges against Avol.   Goodman also answered questions by members of the judicial review committee regarding his interpretation of the charts.   He concluded by expressing his opinion that Avol is a danger to the management of neurological patients.2  The committee decided not to request testimony from another neurosurgeon.   The hearing was closed and the matter submitted.

On January 22, 1981, the judicial review committee issued its decision.   The committee found against Avol on three of the four charges and recommended that (1) Avol be removed from the emergency room call panel;  (2) he obtain neurosurgical consultation before doing either lumbar punctures or cerebral angiography;  (3) any patients admitted by Avol be seen by a consultant neurosurgeon within 24 hours after admission and Avol perform no surgical procedure without prior approval by such consultant;  (4) the foregoing restrictions continue for not less than six months, after which an ad hoc committee appointed by the executive committee will review the restrictions and advise the board of directors of its findings.   At a special meeting on February 2, 1981, the executive committee of the board of directors reviewed the decision of the judicial review committee and voted to accept its recommendations.   As permitted by the bylaws, Avol appealed the decision to the board.   On March 10, 1981, the appeal was heard by the members of the board who did not attend the meeting of October 29, 1980, and thus did not participate in the summary suspension of Avol and the bringing of charges against him.   The board affirmed the decision of the judicial review committee with two modifications of the restrictions imposed on Avol's practice of neurosurgery at the hospital.3

 Superior Court Proceedings

 On March 31, 1981, Avol filed his petition for writ of mandate to compel the hospital to set aside its decision and reinstate his full staff privileges.4  The petition alleged that the procedure followed by the hospital, from summary suspension through the appellate process, was contrary to the bylaws and denied Avol a fair hearing.   The hospital answered denying the allegations of violation of the bylaws and unfairness.   Following a hearing, findings of fact and conclusions of law were signed and filed.   From the findings, which summarized the hospital proceedings set forth above, the court concluded that substantial evidence supported the actions of the hospital, thus there was no abuse of discretion by the hospital; 5  and Avol received a fair hearing during the conduct of the quasi-judicial proceedings.   Judgment was entered denying the petition for writ of mandate.   This appeal followed.

 Contentions on Appeal

 Avol argues that his summary suspension was in violation of the bylaws 6 and thus was arbitrary.   The right to practice a lawful profession is sufficiently fundamental to require protection against arbitrary administrative interference by a private entity such as a hospital.   (Ezekial v. Winkley (1977) 20 Cal.3d 267, 272, 142 Cal.Rptr. 418, 572 P.2d 32;  Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823, 140 Cal.Rptr. 442, 567 P.2d 849.)   Denial of access by practicing physicians to staff privileges in private hospitals is deemed arbitrary when it is substantively unreasonable, internally irregular or procedurally unfair.   (Ezekial v. Winkley, supra, 20 Cal.3d at pp. 271–272, 142 Cal.Rptr. 418, 572 P.2d 32.)   Avol's summary suspension did not strictly conform with the bylaws in that the necessity for such suspension was determined by the board of directors and Dr. Dyer, who was chief of staff rather than chairman of the department of surgery.   It does not follow, however, that the suspension was arbitrary within the above definition.   At the hearing before the judicial review committee, Dr. Dyer explained that because Avol was the chairman of the department of surgery on October 29, 1980, it was not feasible to ask him to bring charges against himself or to decide that immediate action against himself was needed;  since Dyer, as chief of staff, is an ex officio member of all committees and has general supervision over the work of the medical staff, he acted as chairman of the department of surgery when he and the board of directors suspended Avol in order to avoid possible further adverse results to patients.   The apparent purpose of the bylaw requirement that the chairman of the appropriate department concur in the need for immediate suspension of a medical staff member is to insure that such a decision be made not alone by hospital administrators lacking knowledge of medicine, but also by a physician.   That purpose was fulfilled in the person of Dr. Dyer.   Avol's insistence that Dyer improperly assumed chairmanship of the department of surgery in the suspension procedure is but an attempt to seize on what was at most a technical irregularity which did not effectively prejudice Avol's rights.

 Avol argues that no emergency existed to warrant his summary suspension because the results of the PSRO investigation of his professional competence were known to the board of directors for many days prior to the suspension.   Where, as here, the trial court was limited to the substantial evidence test in reviewing the record of the administrative proceedings (Code Civ.Proc., § 1094.5, subd. (d)), the appellate court itself reviews the administrative record to determine whether the agency's action was supported by substantial evidence.  (Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 842, 130 Cal.Rptr. 169.)   At the hearing Dr. Dyer stated that the hospital received the information from PSRO regarding Avol on October 29, 1980;  that was the first time the board was aware that “something of such a grave nature was taking place at this hospital.”   The foregoing constitutes substantial evidence supporting the decision to suspend in relation to the time when the need for suspension first became known.   Avol further argues that under the bylaws summary suspension may be ordered only when immediate action is necessary to protect the life or welfare of a specific patient;  inasmuch as no patients were under Avol's care at the hospital on October 29, the suspension was invalid.   We do not agree.   On October 29, 1980, Avol was clothed with full staff privileges.   The board and Dyer, having determined that Avol's presence on the staff threatened the welfare of the hospital's patients, were not required to wait until patients again came under his care before suspending him.

 Avol next contends that the executive committee of the medical staff was the only body authorized to issue charges against him;  since the executive committee declined to do so, all further proceedings were invalid.   In support of this contention Avol relies on the following provision of the bylaws:  “Notice of Charges.   As a part of, or together with the notice of hearing, the Executive Committee shall state in writing, in concise language, the acts or omissions with which the Medical Staff member is charged ․”  This provision is found in Section J of the bylaws, entitled “Hearing and Appeal Procedure,” and must be read in connection with other provisions therein which include the following:  “Body whose decision prompted the hearing refers to the committee or body (which will generally consist of the Executive Committee of the Medical Staff or the Board of Directors ) which, pursuant to the Medical Staff Bylaws,rendered the decision which resulted in a hearing being requested.”  (Emphasis added.)   Such language implies that charges which are the basis of a hearing may be preferred by, or originate with, the board of directors as well as the executive committee of the medical staff.   The provision of the bylaws cited by Avol merely makes the executive committee responsible for putting the charges (by whatever body they are made) into writing in concise medical terms so that they may be understood by the physician required to answer them.   In this case information regarding Avol's treatment of patients came to the attention of the board of directors rather than the executive committee of the medical staff.   Thus, the charges originated with the board and it was in effect the complaining party.   Under these circumstances the executive committee properly deferred to the board in the matter of charges.   It is true that the executive committee did not find that the statement of the charges drafted by Dyer on behalf of the board was concise within the meaning of the bylaws.   However, at the administrative level Avol did not object to the charges on that ground.   He argued then, and he now contends, that the charges against him were invalid only because they were not brought by the executive committee.   Nothing in the bylaws supports that argument and we therefore reject it.

 Avol attacks the validity of the hearing and the ensuing appellate proceedings on several grounds.   He first points out that the composition of the judicial review committee changed from the first session of the hearing to the second session and argues that such change “greatly undermined the fairness of the ‘hearing’ that was being offered.”   The contention lacks merit.   At the first session only procedural matters were considered.   After the hearing officer advised the committee that it was properly constituted and could proceed to consider the charges, the committee voted to give Avol further notice of the hearing so that he could appear and defend on the merits.   When he appeared at the second session and presented arguments challenging procedural aspects of the suspension and the charges, the hearing officer reconsidered his ruling.   Only after such reconsideration and the rejection of Avol's arguments did the hearing proceed on the merits.   Under these circumstances the change in the composition of the judicial review committee did not prejudice Avol's right to a fair hearing on the charges against him.

On December 4, 1980, Avol complained in writing to the chief of staff and the hospital's executive vice president that they had retained Dr. Goodman (not a member of the hospital's medical staff) to review the charts of some of Avol's patients, and that any opinions expressed by Goodman regarding the charts would have to be considered prejudicial because he was associated with a physician who “has shown grossly biased behavior against [Avol] in the past.”   Avol contends that Dyer should have informed the judicial review committee of Goodman's asserted lack of impartiality.   The short answer to this contention is that when Avol appeared at the hearing it was announced that Dr. Goodman was present as a witness;  Avol therefore had the opportunity at that time to express to the committee his objection to Goodman's testifying.   He did not do so, apparently expecting that his procedural objections would be upheld and there would thus be no occasion for Goodman's testimony.

 Avol next argues that the outcome of the appellate review hearing was a foregone conclusion because prior to the hearing the executive committee of the board of directors met, considered the decision of the judicial review committee, and recommended that it be accepted.   Under the bylaws both Avol and the board (as the body whose action prompted the hearing) had the right to seek review of the judicial review committee decision.   On February 2, 1981, the executive committee of the board voted to accept that decision as opposed to appealing it to the entire board;  in other words the decision was accepted only in the sense that it would not be appealed.   The executive committee's approval of the decision for this limited purpose did not foreclose subsequent impartial consideration of Avol's appeal by the full board.

 Avol challenges the decision on other grounds 7 which cannot be considered here because they were not raised either at the hearing before the judicial review committee or at the appellate review hearing before the board.   In administrative mandamus actions brought under section 1094.5 of the Code of Civil Procedure, appellate review is limited to issues in the record at the administrative level.  (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019, 162 Cal.Rptr. 224.)  “It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or ‘skeleton’ showing on the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court.  [Citation.]  The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.”  (Bohn v. Watson (1954) 130 Cal.App.2d 24, 37, 278 P.2d 454.)

 Membership decisions of hospital staff associations, whether in public or private hospitals, “must be rendered pursuant to minimal requisite of fair procedure required by established common law principles.”  (Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802, 825, 140 Cal.Rptr. 442, 567 P.2d 849;  Ascherman v. Saint Francis Memorial Hosp. (1975) 45 Cal.App.3d 507, 511, 119 Cal.Rptr. 507.)   A basic ingredient of such fair procedure is that an individual who will be adversely affected by a decision be afforded some meaningful opportunity to be heard in his defense.  (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555, 526 P.2d 253.)   The record herein discloses that Avol was given not one, but two opportunities to appear before the judicial review committee to be heard on the charges against him.   When he appeared he limited his arguments to procedural grounds, choosing not to defend against the charges on their merits.   No abuse of discretion or unfairness appears in the proceedings which resulted in the decision curtailing Avol's staff privileges.

The judgment is affirmed.

Having concurred in the lead opinion in its entirety and in the affirmance of the judgment, a few additional comments appear warranted.

Petitioner and appellant Dr. Milton Avol (hereinafter Dr. Avol) may have found himself in a “catch-22 position” insofar as his waiver of “procedural irregularities” were concerned.   However, this case itself takes on a “catch-44” complexion since the board of directors of respondent Hawthorne Community Hospital (hereinafter the Board) also found itself snarled up in a “catch-22” situation in its efforts to cope with the unusual circumstances described in the lead opinion and in the superior court's “Findings of Fact and Conclusions of Law.” 1

Here, the Board (with no warning from the Hospital's own medical staff) was faced with a problem of serious dimensions 2 triggered by written notice from an agency of the federal government (Executive Director of California Professional Standards Review Organization (PSRO) area 25) that, after peer review by outside, independent physicians, it had reached the conclusion that Dr. Avol's “․ patterns of practice places medicare beneficiaries in high risk situations which can be avoided.”   This placed the governing board of the hospital, charged with the ultimate responsibility for the quality of patient care delivered within the hospital, on notice of a triple threat, namely, 1) the threat of possible improper patient care to the vital detriment of patients, 2) the threat of the federal government no longer providing reimbursement to the hospital, to Dr. Avol's patients or to Dr. Avol under the medicare program, and 3) the threat to the hospital of potential civil liability suits in the event of improper patient care.

If I were to evaluate by equitable standards the relative weights of the “catch-22” situations in which both Dr. Avol and the hospital board of directors found themselves, I would have to come down on the side of the board since its main focus was on insuring quality patient care.   However, that is not the test.

Suffice to say while Dr. Avol may have had the right not to waive any “procedural irregularities” under the bylaws he had actual knowledge (notice) of the serious charges alleged and elected not to defend the charges on the merits.   Compliance with the bylaws procedures is very important.   However, the bylaws are not engraved in stone and fair and reasonable compliance with the procedures under the unusual circumstances presented here constitute adequate legal compliance.

Accordingly, not exhalting form over substance, especially here where proper patient care is of primary concern, and following an independent review of the record, I cannot say that Dr. Avol did not receive fair, reasonable, and adequate procedures during the conduct of the quasi-judicial proceedings nor can I say that there is insubstantial evidence in the record to support the actions of the board and the findings of fact of the board and the Findings of Fact and Conclusions of Law of the superior court (Hon. Robert I. Weil, presiding).   Nor can I say as a matter of law that either the board or the superior court abused their discretion.

I respectfully dissent.   Dr. Avol's summary suspension was ordered in direct violation of the bylaws of the hospital,1 and he was denied due process and fair hearing procedures.   The right to practice a lawful profession is sufficiently fundamental to require protection against arbitrary administrative interference by a private entity such as a hospital.  (Ezekial v. Winkley (1977) 20 Cal.3d 267, 272, 142 Cal.Rptr. 418, 572 P.2d 32;  Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823, 140 Cal.Rptr. 442, 567 P.2d 849.)   Denial of access by practicing physicians to staff privileges in private hospitals is deemed arbitrary when it is substantively unreasonable, internally irregular, or procedurally unfair.  (Ezekial v. Winkley, supra, 20 Cal.3d at pp. 271–272, 142 Cal.Rptr. 418, 572 P.2d 32.)

Dr. Avol's summary suspension did not conform with the bylaws in that the necessity for such suspension was not determined by the board of directors acting with the chairman of the department of surgery or with the staff executive committee.   At the hearing before the judicial review committee, Dr. Dyer attempted to justify this action by stating that because Dr. Avol was the chairman of the department of surgery on October 29, 1980, it was not feasible to ask him to bring charges against himself or to decide that immediate action against himself was needed;  that since Dr. Dyer, as chief of staff, is an ex officio member of all committees and has general supervision over the work of the medical staff, he acted as chairman of the department of surgery when he and the board of directors suspended Dr. Avol in order to avoid possible further adverse results to patients.   There was no explanation as to how Dr. Dyer could assume to be chairman of the department of surgery just because he was an ex officio member of the committee, nor could there be.   More importantly, there was no explanation why the staff executive committee was not consulted concerning the suspension.   As the bylaws required either the staff executive committee or the department chairman to make the determination to suspend, and neither did, it is clear that the bylaws were not adhered to and that the suspension was ineffective.

Dr. Avol argues that no emergency existed to warrant his summary suspension because the results of the PSRO investigation of his professional competence were known to the board of directors long prior to the suspension.   It is true as he points out that the charges dealt with by the PSRO and the executive board were on their face two years old at the time of the “emergency” action.   Thus, there could be no need that “immediate action must be taken to protect the patient's life or welfare” as required by the bylaws.   Further, Dr. Avol had no patients at the hospital under his care on October 29, 1980.   Dr. Avol asserts that because of all of these facts, his suspension was invalid.   I agree.   There existed no “grave” or “unusual” circumstances requiring immediate action to protect patients' lives and welfare.   Certainly there was no cause for the board of directors to usurp the authority of the medical staff acting through the duly constituted executive committee.

Dr. Avol also contends that the executive committee of the medical staff was the only body authorized to issue charges against him and that since the executive committee declined to do so, all further proceedings were invalid.   In support of this contention Dr. Avol relies on the following provision of the bylaws:  “Notice of Charges.   As a part of, or together with the notice of hearing, the Executive Committee shall state in writing, in concise language, the acts or omissions with which the Medical Staff member is charged ․”  I do not read this provision to mean that the executive committee must bring or instigate the charges as the majority seems to imply.   Nevertheless, the executive committee must put the charges into writing in concise medical terms so that they may be understood by the physician required to answer them.   In this case the staff executive committee not only refused to frame the charges, but in addition it expressly disapproved the charges as drawn by Dr. Dyer acting for the board of directors.   No attempt was made to meet the objections raised by the executive committee, which found the charges to be unduly wordy and not concise.   The executive committee also found the charges to be redundant.   Moreover, it felt that one of the charges lacked specificity.

The suspension ordered by the board of directors on October 29, 1980, in contravention of the corporate bylaws, was revoked on November 4, 1980, by the staff executive committee subject to certain conditions.   Meanwhile, Dr. Avol had requested a hearing on the summary suspension.   Dr. Dyer, as chairman of the staff executive committee, went forward with plans for the hearing, but on December 22, 1980, the staff executive committee, acting in defiance of its chairman, passed a motion to remove all of the restrictions that had been placed upon Dr. Avol.

Dr. Avol took the position at the subsequent meetings of the judicial review committee (JRC) that its hearings were invalid and of no effect in that the initial suspension was invalid because it ignored the bylaws and that his appeal of that suspension was moot because the suspension had been fully revoked by the staff executive committee, which had full power to do so.   He further maintained that the JRC had nothing to hear because the staff executive committee had neither made any charges against him nor approved of the charges made by the board of directors.   He made the same assertions before the trial court, and he persists in those contentions in this court.   Again, I agree.

“[M]embership decisions of hospital staff associations, whether in public or private hospitals, ‘must be rendered pursuant to minimal requisites of fair procedure required by established common law principles.’  (Ascherman, supra.)  [Ascherman v. Saint Francis Memorial Hosp. (1975) 45 Cal.App.3d 507, 511, 119 Cal.Rptr. 507.]”  (Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802, 825, 140 Cal.Rptr. 442, 567 P.2d 849)  “[T]he law requires the hospital to exercise its discretion in conformity with procedural requirements of the staff bylaws and common law fair procedures.”  (Hackethal v. Loma Linda Community Hosp. Corp. (1979) 91 Cal.App.3d 59, 67, 153 Cal.Rptr. 783.   Accord, Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623, 114 Cal.Rptr. 681;  Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802, 140 Cal.Rptr. 442, 567 P.2d 849.)

The touchstone of a fair procedure is for a hospital to follow the procedures that the hospital itself has preordained for imposing discipline.   By disregarding its own rules, respondent placed Dr. Avol in a catch-22 position.   By following his counsel's advice in insisting that the procedures be followed, he was required to refuse to participate in the hearing and thus could not adduce evidence or cross-examine the expert called by the board.   If he did participate in the hearing, he ran the risk of waiving the procedural irregularities.

Dr. Avol makes other valid claims concerning the lack of fairness in the proceedings.   I do not deal with most of them because their effect is merely cumulative.   I do feel constrained to comment on the fact that the board of directors and Dr. Dyer, as chief of staff, were the instigators of the charges against Dr. Avol;  through its member, Dr. Dyer, the board of directors prosecuted the charges;  and it then sat as the tribunal to rule upon Dr. Avol's appeal of the decision of the JRC.   These facts demonstrate the wisdom of the requirements of the bylaws that the medical staff executive committee or the department chairman concur in the suspension and state the charges.   The court in Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 659, 163 Cal.Rptr. 831, held that apart from any question of actual bias on the part of any of the physicians involved and apart from the merits of the charges, the general investigation, instigation, and adjudication of the charges must be conducted in such a manner as not to violate fair procedure rights to an impartial tribunal.   The circumstances under which they are conducted must not be such as to create, as a practical matter, the probability of unfairness.

I must also observe that the record in this case reveals that a struggle was ensuing between the hospital management and the medical staff.   Litigation was and perhaps still is pending between some of the staff physicians and the board of directors.   Dr. Avol was apparently an instigator of this litigation.   It would seem that in this atmosphere of hostility, we should require the highest measure of fidelity to fair procedures.   The majority appears to be willing to settle for the minimum.

I believe that in this case the disregard of the bylaws by the board of directors and the chief of staff, the absence of charges against Dr. Avol because of the refusal of the medical staff executive committee either to sustain the suspension of Dr. Avol or to approve the charges against him, and the role of Dr. Dyer as a member of the board of directors, chief of staff, chairman of the medical staff executive committee, and prosecutor before the judicial review committee coupled with the role of the board of directors as the tribunal to review Dr. Avol's appeal violated Dr. Avol's rights to a fair procedure.   Thus, the trial court erred in concluding that Dr. Avol received fair procedure during the conduct of the proceedings.

The judgment should be reversed.

FOOTNOTES

1.   The charges, based upon specific patient charts, were as follows:  (1) contributing to the death of a patient due to failure to perform appropriate treatment;  (2) exposing neurosurgical patients to unnecessary risks which could be avoided;  (3) failure to use the latest available diagnostic techniques and procedures;  and (4) using inadequate or improper diagnostic and therapeutic techniques.

2.   Dr. Goodman testified:  “My conclusion is that given the deficiency in documentation, given the deficiency in analysis of the problem, given the deficiency in selecting the pertinent diagnostic studies, given the observed record of the wrong procedure being done for the presenting signs and symptoms, I conclude that he [Avol] is a danger to the management of neurologic patients․  Many of Dr. Avol's patients are older.   They probably are not questioning him well.   They are not protecting themselves by interrogating him.   I feel that the patients in his care are in danger.   They are vulnerable and they probably are not in a situation where they can protect themselves.  [¶]  I have a very low opinion of Dr. Avol's neurosurgical care of patients based on chart review.”

3.   Paragraph 3 of the recommendations was changed to read:  “That any patient admitted by Dr. Avol must be seen by a consultant neurosurgeon within 24 hours after admission.   No neurological or vascular surgical procedure may be done without prior approval by an appropriate surgical consultant.”Paragraph 5 of the recommendations was changed to read:  “That after not less than six (6) months an ad hoc committee be jointly appointed by the Executive Committees of the Medical Staff and the Board of Directors to review these proposed restrictions and advise the Board of Directors of its findings.”

4.   Administrative mandamus (Code Civ.Proc., § 1094.5) lies to review the final adjudicatory order of a private hospital board resulting from a proceeding in which a hearing is required, evidence is taken, and discretion in the determination of facts is vested in the board.  (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 813–820, 140 Cal.Rptr. 442, 567 P.2d 849.)

5.   In cases arising from the decisions of private hospital boards, the substantial evidence test applies in determining whether there has been an abuse of discretion.  (Code of Civ.Proc., § 1094.5, subd. (d).)

6.   The bylaws provide in pertinent part:  “SUMMARY REMOVAL AND LIMITED SUSPENSION.   In grave and unusual cases where the Board of Directors with the Executive Committee or Chairman of the applicable Department determines that immediate action must be taken to protect the patient's life or welfare, the Chief of Staff, Department Head, cognizant Staff committee, with the Board of Directors, may summarily suspend a member of the Medical Staff.   In such cases, the aggrieved party may request an immediate hearing before the Executive Committee to determine whether such suspension shall be continued pending a hearing before the appropriate committee.   The Chief of Staff shall make the necessary arrangements to provide alternative coverage for proper and necessary patient care during the period of suspension.”

7.   These grounds include the following:  The board of directors ignored the hearing officer selected by the executive committee of the medical staff and instead had its own law firm select the hearing officer for the judicial review committee;  this “hand-picked” hearing officer apparently went along with Dr. Dyer's decision that the judicial review committee could neither call witnesses nor review the patient charts which were the basis of Avol's summary suspension;  although nine other members of the hospital's staff were investigated by the PSRO, Avol was singled out for curtailment of staff privileges.

1.   Following are the findings of fact and conclusions of law of the superior court:  “FINDINGS OF FACT“1. On October 29, 1980, the Hospital's administration received written notice from the Executive Director of California PSRO Area 23 that Petitioner's cases had been reviewed and that, based on that review, the federal government would no longer provide reimbursement to petitioner or his patients under the Medicare program.“2. The Hospital's administration immediately notified the President of the Board of Directors, who, in turn, called a Special Meeting of the Executive Committee of the Board of Directors for that same evening.   After discussion of its ultimate responsibility for the quality of patient care within the Hospital, the Executive Committee of the Board voted to summarily suspend the petitioner from the medical staff.“3. On October 30, 1980, petitioner was given written notice of this action.“4. On November 4, 1980, at the next regular meeting of the Executive Committee of the Medical Staff, petitioner orally requested and was granted an immediate hearing before the Executive Committee of the Medical Staff regarding his summary suspension.   As a result of that hearing, petitioner's suspension was lifted pending a review of petitioner's practice to be conducted by a Judicial Review Committee to be appointed and subject to the continuing condition that petitioner receive the agreement of the consulting physician before performing angio-graphic studies or lumbar punctures.“5. The Executive Committee of the Medical Staff thereafter appointed a Judicial Review Committee to hear the charges to be reduced to writing and served on petitioner.“6. On December 5, 1980, the Chief of Staff, acting as the instrumentality of the Executive Committee of the Board of Directors, signed and transmitted to petitioner the formal statement of charges to which he would be expected to respond.   That Notice of Charges also informed petitioner of the time, date and place of the hearing.“7. Petitioner failed to appear at the time, date and place set forth in the Notice.   The Judicial Review Committee, however, declined to proceed with a hearing on the merits and voted to continue the hearing to a later date in order to afford petitioner further notice of the Committee's intention to proceed, and to afford petitioner further opportunity to appear and defend against the charges.“8. At the subsequent reconvening of the Judicial Review Committee, petitioner appeared and expressed only two procedural challenges.   He thereafter left the hearing of his own choice, thereby voluntarily giving up the opportunity to defend the charges on the merits.   The balance of the Judicial Review Committee hearing consisted of a presentation by the Chief of Staff, as representative of the Executive Committee of the Board, of substantial evidence in support of each of the charges.“9. On January 22, 1981, the Judicial Review Committee issued its Findings of Fact and Decision.   The Committee found against petitioner on three of the four charges and, as its Decision, recommended that the petitioner be removed from the Emergency Room call panel, that the petitioner obtain prior agreement of a neurosurgical consultant for certain procedures, and that the foregoing restrictions continue for not less than six months after which petitioner's cases be reviewed by an ad hoc committee.“10. Petitioner appealed the Findings and Decision to the governing board and, on March 10, 1981, the duly-noticed appellate hearing was held.   Acting in its appellate capacity, the Board of Directors of the Hospital affirmed the Findings and Decision of the Judicial Review Committee, making only minor modifications as to the sanctions recommended by the Judicial Review Committee.“CONCLUSIONS OF LAW“1. The Petition herein properly seeks review of the Hospital's quasi-judicial action under California Code of Civil Procedure § 1094.5.“2. The petitioner has received fair procedure during the conduct of the quasi-judicial proceedings.“3. There is substantial evidence in the record to support the actions of the Hospital and, therefore, there has been no abuse of discretion by the Hospital.“4. The evidence adduced below supports the Findings of Fact and the Findings of Fact support the Decision.“5. Petitioner is, therefore, not entitled to the issuance from this Court of its Peremptory Writ of Mandate and the respondent is entitled to Judgment herein denying the Petition and for costs.“DATED:  July 24, 1981.   “/s/ Robert I. Weil   “ROBERT I. WEIL   “JUDGE OF THE SUPERIOR COURT”

2.   See Lead opinion, page 4, footnote 1, and page 7, footnote 2.

1.   The bylaws provide in pertinent part:  “SUMMARY REMOVAL AND LIMITED SUSPENSION.   In grave and unusual cases where the Board of Directors with the Executive Committee or Chairman of the applicable Department determines that immediate action must be taken to protect the patient's life or welfare, the Chief of Staff, Department Head, cognizant Staff committee, with the Board of Directors, may summarily suspend a member of the Medical Staff.   In such cases, the aggrieved party may request an immediate hearing before the Executive Committee to determine whether such suspension shall be continued pending a hearing before the appropriate committee.   The Chief of Staff shall make the necessary arrangements to provide alternate coverage for proper and necessary patient care during the period of suspension.”

LILLIE, Acting Presiding Justice.

L. THAXTON HANSON, J., concurs.

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