SYWAK v. CONNOR HOSPITAL (1988)

The superior court granted Dr. Alexander Sywak's petition for a writ of mandate after O'Connor Hospital had suspended his admitting and clinical privileges at the hospital.   The court found that the hospital did not accord Dr. Sywak “fair procedure” before suspending his privileges, and ordered that the hospital rescind the suspension and restore full privileges to Dr. Sywak.

We find that the disciplinary procedure followed by the hospital constituted fair procedure under California law.   Accordingly we will reverse the judgment of the superior court which had granted Dr. Sywak's writ petition.

BACKGROUND

Dr. Sywak is a licensed physician qualified to practice cardiovascular surgery in the State of California.   Until the effective date of his suspension, January 13, 1986, Dr. Sywak enjoyed medical staff privileges at O'Connor Hospital and conducted the majority of his surgery practice there.   The events which led to his suspension go back several years.

On March 16, 1982, the chairman of the hospital's department of surgery executive committee (hereafter the “surgical executive committee”) sent a letter to Dr. Sywak requesting his presence at a special meeting of the committee on March 22.   The minutes of this meeting reflect that the issues discussed did not involve patient care but rather centered upon Dr. Sywak's alleged disruptive behavior in his dealings with members of the medical staff, nurses and hospital administrators.

At the next meeting of the hospital staff executive committee (hereafter the “staff executive committee”), the chairman of the surgical executive committee submitted a request for a corrective action investigation into Dr. Sywak's professional practice and conduct.   This request was supported by reference to the specific activities and conduct which prompted it.   Six concerns were listed.   The first five involved personnel difficulties of the sort discussed at the surgical executive committee meeting.   The last said this:  “Concern has been expressed regarding the post-operative care provided by Dr. Sywak for his patients.”   In response to the request, the staff executive committee appointed an ad hoc investigating committee (hereafter “the ad hoc committee”) to conduct a corrective action investigation.

Several incidents occurred prior to the commencement of this investigation which bear mention here.   In November of 1979 the case of Jack S., a patient of Dr. Sywak's, was reviewed by the surgical executive committee.   The committee decided unanimously that Dr. Sywak had not complied with the rules and regulations of the hospital medical staff with respect to this patient.   Dr. Sywak was placed on probation from December 1, 1979 to March 1, 1980, during which time another staff doctor was appointed to monitor Dr. Sywak's patient care.

In December of 1981, the surgical executive committee reviewed another case of Dr. Sywak's, the case of Concetta D.   Dr. Sywak was asked to attend a meeting of this committee to discuss the case.   The committee found unanimously that Dr. Sywak should have responded more quickly to a “code blue” in regard to this patient;  however, the committee did not feel the situation warranted any further action from it.

On February 22, 1982, at a meeting of the cardiovascular surgery section, a third case of Dr. Sywak's, the case of Mary O., was discussed.   The chairman of this section questioned Dr. Sywak's pre-operative care, his failure to record post-operative progress notes, and whether Mary O. was in fact an appropriate candidate for surgery.   The chairman felt the case should be referred to the surgical executive committee for further review and evaluation.   The record does not reveal whether the surgical executive committee took any action on this matter.

Returning to events following the appointment of the ad hoc committee:  shortly after this committee was formed, Dr. Sywak received a letter from its chairman, advising him that the investigation was underway and inviting him to attend a meeting on May 26, 1982.   The letter listed seven aspects of Dr. Sywak's practice which concerned the committee.   Several of these again involved Dr. Sywak's relations with hospital personnel.   Others raised more specific issues regarding patient care, such as:  “2. The quality of your post operative care, with particular regard to availability to manage post surgical complications and crises;  [¶] 3. Compliance with hospital and departmental medical records requirements, with particular regard to admitting histories and physicals, operative reports, consultation notes and progress notes;” and “7. Selection of medications for cardiac surgical patients.”   The letter then said that the ad hoc committee would be “particularly interested” in these issues with regard to six cases, listed by chart number.   The final paragraph said this:  “This meeting and interview will not constitute a hearing nor will be preliminary in nature, and will not be subject to those medical staff bylaws procedural provisions relating to hearings.”

On the appointed date Dr. Sywak appeared before the ad hoc committee.   According to Dr. Sywak, the six charts referenced in the letter were not discussed.   Instead, several other cases were alluded to by the committee, though apparently not by name or case number.   Charts for these cases were not made available to Dr. Sywak at this meeting.   One of the cases discussed was the case of Mary O., referred to above.   Dr. Sywak was given the opportunity to submit names of those whom he wished to appear as witnesses in his behalf before the committee.   He did so;  and, to his knowledge, these witnesses were called and appeared.   Aside from his personal interview before the ad hoc committee, Dr. Sywak was not invited to be present for any of the proceedings of this committee.

Some time in July, Dr. Sywak received a letter asking him to attend a meeting of the staff executive committee.   At this meeting he was informed that the ad hoc committee had completed its investigation and had made certain findings and recommendations.   He did not receive a copy of the ad hoc committee's report, nor was he told what findings and recommendations were contained in that report.   He was asked about his handling of certain cases, though he was not asked about any of the six originally listed in the letter from the ad hoc committee.

Following this meeting, Dr. Sywak received a letter from the staff executive committee dated July 30.   This letter informed him that the committee had carefully considered the information provided by the investigation of the ad hoc committee and its own investigation, and had concluded that he did not presently meet the standards for continued exercise of admitting privileges.   The committee recommended that Dr. Sywak's medical staff membership and his admitting and clinical privileges be suspended for a minimum of one year, with reapplication and reappointment thereafter subject to certain conditions.   The letter concluded by advising Dr. Sywak of his right to a hearing and to appellate review under the hospital bylaws.

Pursuant to Article VIII of the hospital's bylaws, Dr. Sywak requested a hearing before the judicial review committee (the “JRC”).   As further provided in this Article, the staff executive committee then sent to Dr. Sywak a written list of formal charges, by letter dated October 11, 1982.   The charges are seven, and are substantially similar to the concerns expressed in the letter from the ad hoc committee.   Four charges involve various aspects of Dr. Sywak's alleged “disruptive, manipulative, and uncooperative behavior.”   The remaining three are as follows:  “3. You have failed to maintain timely and complete medical records for you have failed to enter adequate and timely progress notes, pre-operative notes, ‘histories and physicals' and consultative reports;  [¶] 4. You have failed to obtain or document proper patient consents to surgical procedures”;  and “6. You have failed to provide appropriate and indicated post-operative care to surgical patients.”

The letter then listed nine cases, each accompanied by a brief description of specific conduct representative of the charges.   This list of nine cases did not include any of the six cases listed in the letter sent to Dr. Sywak by the ad hoc committee.   It did, however, include the cases of Mary O., Concetta D., and Jack S.   It also included several cases which had been discussed at the ad hoc committee meeting, though apparently not by name.

The JRC hearings commenced on November 6, 1984, following more than two years of legal skirmishing, the substance of which does not concern us here.

The JRC consisted of five medical doctors, none of whom had served on any committee involved in any stage of the corrective action process.   The hearings were presided over by a hearing officer.   Both the hospital and Dr. Sywak were represented by counsel.   The JRC met ten times over the course of seven months.   The hospital limited its case-in-chief to an evaluation of Dr. Sywak's care of four of the patients listed in the October 11 letter of formal charges, and as to these four patients the inquiry was further focussed upon the specific allegations concerning each which were set forth in the charging letter.   These cases were:  Concetta D., Mary O., Thomas K., and Luciano Z.¹  Each side called witnesses and had the opportunity to cross-examine opposing witnesses.

Pursuant to the bylaws, the JRC was instructed to base its decision only on the evidence introduced during the hearings.   Article VIII, section 3 of the bylaws sets forth the burden of proof regarding JRC hearings.   The JRC is to rule against the person who requested the hearing, “unless it finds that said person has proved, by clear and convincing proof, that the recommendation of the committee or body whose recommendation prompted the hearing was arbitrary, unreasonable, or not sustained by the evidence.”

At the conclusion of the hearings, the JRC informed Dr. Sywak, by letter dated June 18, 1985, that it had voted unanimously to uphold the recommendation of the staff executive committee to suspend his admitting and clinical privileges for one year.

Following this letter, the JRC issued a supplemental report, dated July 29, 1985, in which it set forth its findings with respect to each of the four cases at issue.   As to each it found that the evidence supported the charges.

Dr. Sywak then appealed to the hospital's governing board, as the bylaws entitled him to do.   This body heard Dr. Sywak's appeal on November 26, 1985, and on December 24, 1985 informed him by letter that it had affirmed the decision of the JRC.   By letter dated January 10, 1986, the hospital's chief executive officer advised Dr. Sywak that his privileges would be suspended as of January 13, 1986.

This corrective action was subsequently modified in several respects by the staff executive committee.   The committee proposed that Dr. Sywak be evaluated by a psychiatrist and a clinical psychologist regarding his potential for disruptive behavior.   He would be allowed to reapply to the hospital medical staff without waiting a year, provided that he had successfully completed any indicated treatment program, and provided that his reapplication include supporting letters from staff and medical personnel and a statistical review of his entire practice during his suspension time.   Dr. Sywak was informed of this modification of the terms of his suspension by letter from the staff executive committee dated January 31, 1986.   Thereafter, Dr. Sywak requested that the committee grant him temporary privileges during the time he was obtaining psychiatric evaluation and making formal reapplication to the staff.   This request was denied by letter on March 4, 1986.

On March 27, 1986, Dr. Sywak petitioned the superior court for a writ of mandate to overturn the hospital's decision to suspend his privileges, alleging two grounds:  1) that the corrective action procedure followed by the hospital denied him a fair trial;  and 2) that the hospital's decision was not supported by substantial evidence.   The matter was heard on May 8, 1986, and on May 19, 1986, the court granted Dr. Sywak's petition on the strength of the first ground ² and ordered that the hospital reinstate him with full privileges.

DISCUSSION

 The sole issue in this appeal is whether Dr. Sywak was accorded “fair procedure” before the hospital suspended his privileges.   The notion of fair procedure has evolved from the common law principle that a private association which controls a fundamental right, such as the right to pursue a livelihood, cannot engage in arbitrary exclusion practices.  (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550, 116 Cal.Rptr. 245, 526 P.2d 253.)   Like its constitutional counterpart due process, fair procedure does not lend itself to rigid definition, but must be assessed on a case by case basis.   The essence of both sets of rights is fairness;  central to both are adequate notice of the charges and a reasonable opportunity to respond.  (Tiholiz v. Northridge Hospital Foundation (1984) 151 Cal.App.3d 1197, 1202, 199 Cal.Rptr. 338.)

The leading California case on the subject of fair procedure is Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253, where our supreme court said this:  “The common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial [citation], 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.   As such, this court should not attempt to fix a rigid procedure that must invariably be observed.   Instead, the associations themselves should retain the initial and primary responsibility for devising a method which provides an applicant adequate notice of the ‘charges' against him and a reasonable opportunity to respond.”  (Id. at p. 555, 116 Cal.Rptr. 245, 526 P.2d 253, fn. omitted.)

 While not intending in any way to discount the importance of fair procedure, we caution that it should be viewed in context.   Disciplinary procedures such as that at issue here have developed primarily to protect the public served by the licensee employed by a hospital.   (Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 157, 196 Cal.Rptr. 367.)   Hospitals have a duty to guard against incompetence of their medical staff and must be able to establish high standards of professional work.  (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 341–342, 183 Cal.Rptr. 156.)   Because a fundamental right to earn a living is at stake, however, hospitals are not free to engage in arbitrary expulsions in order to accomplish these goals.   The common-law principles embodied in the concept of fair procedure, rather than conferring certain absolute rights upon a doctor subject to disciplinary action, operate to ensure that a hospital's action is substantively rational and procedurally fair.  (Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435, 441, 187 Cal.Rptr. 811.)   Unless it can be shown that a procedure is “substantively irrational or otherwise unreasonably susceptible of arbitrary or discriminatory application ․” (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 626–627, 166 Cal.Rptr. 826, 614 P.2d 258, fn. omitted), courts must not interfere to set aside procedures governing hospital staff privileges.  (Smith v. Vallejo General Hospital (1985) 170 Cal.App.3d 450, 456, 216 Cal.Rptr. 189.)

One final note before we proceed to the merits.  Code of Civil Procedure section 1094.5 describes the scope of inquiry of the superior court in administrative mandamus proceedings.   The court is to decide on the basis of its review of the record “whether there was a fair trial;  and whether there was any prejudicial abuse of discretion.   Abuse of discretion is established if the respondent has not proceeded in the manner required by law ․ or the findings are not supported by the evidence.”   The appeal before us is limited to the procedural aspect of this inquiry;  our function in this instance is no different from the trial court's.  (Hackethal v. California Medical Assn., supra, 138 Cal.App.3d 435, 448, 187 Cal.Rptr. 811.)   The question before us therefore is whether the administrative record, in light of prevailing case authority, shows that Dr. Sywak was provided a fair hearing in the manner required by law.

Dr. Sywak does not contend that the bylaws themselves do not provide for fair procedure.   Rather, he argues that he was unfairly treated because the procedure employed by the hospital in this case was a departure from the process outlined in the bylaws.   The hospital maintains that it fully complied with its own bylaws, and that, quite apart from the question of compliance, it provided Dr. Sywak with fair procedure under the law.   We will first summarize Dr. Sywak's position and then discuss the procedure the hospital followed both in relation to its bylaws and to the requirements of fair procedure in general.

Dr. Sywak maintains that the bylaws, read as a whole, contemplate one continuous process whereby the same charges regarding the same patient cases will be evaluated by the subcommittee making the request for a corrective action investigation, the ad hoc committee conducting the investigation, the staff executive committee which recommends the corrective action and the judicial review committee.   He argues that the opportunities provided him by the bylaws to appear and be heard before the ad hoc committee and the executive committee are meaningless if the cases discussed at these meetings are not the ones which ultimately constitute the basis for the charges.   Since the “review” before the JRC was his first opportunity to respond to specific charges and cases, it was no review at all, but rather a hearing de novo.   In this context, he argues, the hospital as the party bringing the charges should properly have the burden of producing evidence and proving its case.   In his view the burden of proof allocation set forth in the bylaws is patently unfair where it is applied in a hearing which does not review a decision based on facts previously determined, but rather addresses new charges and new evidence.

 The flaw in this argument is that it is based upon the assumption that the hospital's corrective action proceedings must mirror criminal prosecution.   This does not square with the two principles discussed above:  1) hospital has a protective rather than a punitive interest, and 2) neither formal procedure nor adherence to a particular mode of process is necessary to fair procedure.   The doctor's point of view was apparently shared by the trial judge, who wrote that Dr. Sywak “was entitled to notice of charges and an ample and meaningful opportunity to respond at each level of the process.”  (Italics added.)   Our review of the record and relevant case law leads us to a different conclusion.   Fair procedure does not require several hearings.   It requires only one.

 Furthermore, contrary to Dr. Sywak's assertions, the hospital's bylaws ³ provide unequivocally for only one hearing, and that is the JRC hearing.   While the doctor who is the subject of a corrective action investigation is entitled to an opportunity to appear before both the ad hoc committee and the staff executive committee, the bylaws make clear that neither of these appearances “constitute[s] a hearing” and “none of the procedural rules provided in these bylaws with respect to hearings shall apply.”   This language was quoted to Dr. Sywak in the letter to him from the ad hoc committee.

The ad hoc committee is simply an investigative body.   It does not bring formal charges.   The staff executive committee, which does, is not constrained under the bylaws to follow the ad hoc committee's recommendations.   As explained in the staff executive committee's letter of formal charges, its recommendation for suspension was based upon a “comprehensive peer review process,” consisting of an investigation by both the ad hoc committee and the staff executive committee itself, during which the committee considered all “available information bearing upon your professional qualifications for continued Medical Staff membership and admitting and clinical privileges.”   Nowhere is it said in the bylaws that the formal charges must be limited to specific cases investigated by the ad hoc committee.   Nor is there any right under the bylaws, as we read them, to a notice of charges at any time before the staff executive committee has reached its decision and makes its recommendation.

 Moreover, we cannot entirely agree with Dr. Sywak's characterization of the formal charges as “new and different.”   The record shows that the general nature of the charges against Dr. Sywak did not change significantly throughout the corrective action process.   The quality of Dr. Sywak's post-operative care of his patients was a concern throughout, with special emphasis on post-surgical management and compliance with hospital records requirements.   The bylaws provided that at the ad hoc commmittee interview the doctor “shall be informed of the general nature of the charges against him, and shall be invited to discuss, explain or refute them.”   No less was done here.

It is not disputed that none of the nine cases listed in support of the formal charges coincided with the six cases Dr. Sywak was advised were a concern of the ad hoc committee.   It appears, however, that several of the charts which were among these nine were in fact discussed at the ad hoc level.   Several had also been the subject of concern and evaluation prior to that time.

 More importantly, we do not agree with Dr. Sywak's interpretation of the bylaws as prohibiting the hospital from adding new cases to support its general charges at the time the hearing is requested and formal charges are issued.   In the case of Marmion v. Mercy Hospital & Medical Center (1983) 145 Cal.App.3d 72, 193 Cal.Rptr. 225, very similar arguments were made and rejected by the court.

In that case Mercy hospital terminated Marmion's residency following a meeting of the residency review committee at which Marmion was given the opportunity to appear and be heard.   Marmion then requested a review before the hospital's Judicial Review Committee, whereupon he received a letter containing specific charges and cases which formed the basis for his termination.   His termination was upheld, after which he challenged the hospital's procedure, claiming:  1) the hospital improperly used additional incidents and patient cases, different from those discussed at the committee meeting, to support its formal charges;  and 2) the bylaws, which contained a provision nearly identical to that in our case, improperly allocated the burden to him to prove by clear and convincing evidence that the termination decision was “arbitrary, unreasonable, or not sustained by the evidence.”  (Id., at p. 94, 193 Cal.Rptr. 225.)

As to the first point, the Marmion court said this:  “Because the judicial review committee hearing was a full evidentiary hearing, it was not error for Mercy to specify in greater detail the instances which support the basic charges supporting Marmion's termination or to discuss and present evidence on all patient cases or incidents which support the charges so long as Marmion had adequate notice and time to prepare a meaningful response for presentation at the hearing.”  (Id. at pp. 95–96, 193 Cal.Rptr. 225, italics in original, fn. omitted.)   The court also made the following observations about the function of the judicial review committee:  “Despite the committee's name, the ‘Judicial Review Committee,’ it did not perform a review in the traditional sense.   The function of this committee was not to review the record of the April 3, 1980, hearing of the ․ residency review committee and determine if that record supported the termination decision;  rather, the committee proceeding was in the nature of a hearing de novo.   Thus, the decision to terminate Marmion was final and effective subject to ‘review’ by an independent hospital body in a new and full evidentiary hearing.”  (Id. at p. 95, 193 Cal.Rptr. 225.)

Thus the fact that the judicial review committee conducts a hearing de novo and receives new evidence not previously before any committee was not perceived to be a violation of fair procedure.   This was so even though the burden of proof was on the doctor challenging the prior adverse decision.   As to Marmion's objection to the allocation of the burden of proof in these circumstances, the court simply stated that this precise procedure was authorized by the supreme court in Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 828, 140 Cal.Rptr. 442, 567 P.2d 1162.

 The bylaw in question in Anton provided that the doctor requesting the hearing have the initial burden of coming forward with evidence to support his position.   Following submission of all the evidence, the JRC was to rule against the person requesting the hearing “unless it finds that said person has proved, by clear and convincing proof, that the action of the committee or body whose decision prompted the hearing was arbitrary, unreasonable, or not sustained by the evidence.”  (Id. at p. 828, fn. omitted, 140 Cal.Rptr. 442, 567 P.2d 1162.)   The parallel provision in our case places the initial burden of producing evidence on the representative of the charging committee, but thereafter the burden shifts and the provision is identical to the one in Anton.

The Supreme Court in Anton concluded that the application of this bylaw was not an affront to fair procedure.  “Although it appears to place the initiative with respect to the production of evidence upon the party requesting the hearing in light of an adverse administrative recommendation, and although it further appears to require that the recommendation be sustained absent a ‘clear and convincing’ showing by that party that it should be overturned, it is clear that the bylaw read as a whole ․ contemplates a substantial showing on the part of the charging committee in support of its recommendation.   It is also clear that the procedure here in question provides adequate notice of charges and a ‘fair opportunity [for the affected party] to present his position.’   Our Pinsker decision requires no more than this.”  (Id. at pp. 829–830, 140 Cal.Rptr. 442, 567 P.2d 1162.)

Dr. Sywak claims Anton is distinguishable in that Dr. Anton had opportunities to present his position throughout the various stages of the administrative proceedings.   This is simply not so.   Anton was summarily suspended following an investigation in which he apparently had no participation whatsoever.   Thereafter, pursuant to the bylaws, he was allowed a preliminary hearing solely for determination of the question whether the suspension should be lifted pending the outcome of the JRC hearing.   As in our case, formal charges issued for the first time only after the JRC hearing was requested, and this hearing was the only evidentiary hearing conducted.

The basis for the Anton court's upholding the burden of proof bylaw was that the language of the bylaw strongly implied that substantial evidence in support of the recommendation must appear.   This reasoning is even more persuasive in our case where the charging committee has the initial burden of producing the evidence.   In addition, we note that the findings of the JRC stated it had fully considered all the evidence presented and that the evidence supported the charges.⁴  Thus it appears in our case, as in Anton, that the JRC decision was supported by substantial evidence and not “based wholly upon the burdens of production and proof․”  (Id. at p. 830, fn. 28, 140 Cal.Rptr. 442, 567 P.2d 1162.)

 Taking a slightly different approach, Dr. Sywak makes these last two points regarding the bylaws:  1) the decision to suspend him was virtually a fait accompli before he was provided with due process;  and 2) he was not allowed to present his case before the actual decision-making body, which he identifies as the staff executive committee.   As he points out, the bylaws provide that an action recommended by the staff executive committee is final and effective if the doctor does not timely request a hearing.   Thus it is possible that he could be suspended without having an opportunity to refute the charges or even knowing what the charges are.   Our Supreme Court in Pinkser, however, perceived no unfairness in a similar procedure, where it made these comments:  “[I]t is permissible for an association to initially reject an applicant without explanation, so long as the association clearly indicates to the applicant that, if he desires, the association will inform him of the reason for the rejection and will afford him an opportunity to respond.”   (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d 541, 555, fn. 13, 116 Cal.Rptr. 245, 526 P.2d 253, italics added.)   Likewise, the court in Marmion found no fault in a process whereby a decision to terminate was final and effective “subject to ‘review’ by an independent hospital body in a new and full evidentiary hearing.”  (Marmion v. Mercy Hospital & Medical Center, supra, 145 Cal.App.3d at p. 95, 193 Cal.Rptr. 225.)

 Dr. Marmion had also claimed, as does Dr. Sywak, that he was not given the opportunity to present evidence to the “decision-maker.”   The court rejected this argument, reiterating what has become a familiar refrain throughout fair procedure cases:  “The ‘opportunity to respond’ aspect of fair procedure is a flexible and not a rigid concept.   The requirement of a meaningful opportunity to respond to the charges may be satisfied by a ‘variety of procedures' ․” (Id. at p. 93, 193 Cal.Rptr. 225.)   In our case it appears that the governing board of the hospital is technically the ultimate decision-maker, with the power to approve or reject recommendations of the staff executive committee.   Furthermore, while the individual members of the staff executive committee were not present at the JRC hearings, the committee “appeared” through counsel and Dr. Sywak had ample opportunity to respond at that time.

O'Connor Hospital's bylaws are modelled upon well accepted guidelines ⁵ which have been implicitly approved by California courts.  (See, e.g., Ezekial v. Winkley (1977) 20 Cal.3d 267, 142 Cal.Rptr. 418, 572 P.2d 32;  Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802, 140 Cal.Rptr. 442, 567 P.2d 1162;  Marmion v. Mercy Hospital & Medical Center, supra, 145 Cal.App.3d 72, 193 Cal.Rptr. 225;  Cipriotti v. Board of Directors, supra, 147 Cal.App.3d 144, 196 Cal.Rptr. 367;  Tiholiz v. Northridge Hospital Foundation (1984) 151 Cal.App.3d 1197, 199 Cal.Rptr. 338;  Smith v. Vallejo General Hospital, supra, 170 Cal.App.3d 450, 216 Cal.Rptr. 189.)   We cannot find that the procedure set forth therein is “unreasonably susceptible of arbitrary or discriminatory application” (Miller v. Eisenhower Medical Center, supra, 27 Cal.3d 614, 626–627, 166 Cal.Rptr. 826, 614 P.2d 258), or that the hospital's application of it in this case deprived Dr. Sywak of his fair procedure rights.   These rights were recently summarized in the case of Hackethal v. California Medical Assn., supra, 138 Cal.App.3d 435, 187 Cal.Rptr. 811, and include the following:

1. There must be adequate notice of charges and a reasonable opportunity to respond;

2. The hearing tribunal must meet the prevailing standards of impartiality;

3. There must be an opportunity to confront and cross-examine the accusers and to examine and refute the evidence;  and

4. The individual must have the opportunity to present a defense.

 The record demonstrates that fair procedure was complied with here.   In October of 1982, Dr. Sywak received adequate notice of the formal charges and the cases on which the charges were based.   Although the hearing was scheduled shortly thereafter, it did not take place until approximately two years later.   The hearing panel was composed of staff medical doctors, none of whom had participated on any committee in the course of the investigative process.   Dr. Sywak was represented by counsel and the hearings were conducted by a hearing officer.   The hearings took place over the course of ten months, during which Dr. Sywak was allowed to confront and cross-examine witnesses and present evidence in his own defense.   Evidence was strictly limited to the specific charges set forth in the charging letter as to four patient charts, and the committee was instructed to base its decision only on evidence heard at the hearings.   Following the unanimous decision of the judicial review committee, Dr. Sywak requested and was given an additional hearing before the hospital's governing board, which body also unanimously approved the recommendation of suspension.

Dr. Sywak was provided with every procedural safeguard.   Even if there were divergence from the precise process set forth in the bylaws, no prejudicial error or unfairness to Dr. Sywak resulted therefrom.

SUBSTANTIAL EVIDENCE

The parties agree that the standard for judicial review in this case is that set forth in Code of Civil Procedure § 1094.5(d):  “in cases arising from private hospital boards ․ abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record ․”

Where an administrative decision is reviewable under the substantial evidence standard, our function is identical to that of the superior court:  we look at the entire administrative record to determine whether any substantial evidence supports the decision.  (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 210 Cal.Rptr. 788).   Thus even had the trial court addressed itself to the issue, its conclusion would not be binding on us, since the question is one of law.  (Pick v. Santa Ana–Tustin Community Hospital (1982) 130 Cal.App.3d 970, 980, fn. 6, 182 Cal.Rptr. 85).

No purpose would be served here by further proceedings in the superior court.   We have the entire administrative record before us and we have thoroughly familiarized ourselves with it.   Applying the familiar substantial evidence yardstick (see e.g., Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 155, 196 Cal.Rptr. 367;  Northern Inyo Hospital v. FEPC (1974) 38 Cal.App.3d 14, 24, 112 Cal.Rptr. 872), we conclude that the record unquestionably supports the hospital's decision.

The judgment of the superior court granting Dr. Sywak's petition for writ of mandate is reversed.   The court is directed to enter judgment denying the petition.   Costs on appeal to appellant.

The petition for rehearing is denied.

FOOTNOTES

1.   The case of Jack S. was also discussed at the hearings, for the limited purpose of bringing the fact of Dr. Sywak's earlier probation before the committee.

2.   The matter of the substantiality of the evidence was not specifically addressed by the trial court.

3.   The parties stipulated at the close of the JRC hearing that two different sets of bylaws would apply to different phases of these proceedings.   The hearing itself would be governed by the bylaws in effect in 1984–85 when the hearing took place.   Article VIII covers this aspect of the procedure.   On the other hand, during the first phases of the investigative process, through the time the formal charges issued in October of 1982, an earlier version of the bylaws was in effect.   Article VII sets forth the rules for this part of the procedure.   Both sets of bylaws were introduced as evidence at the JRC hearings.   During the writ proceedings in superior court, however, and in oral argument before this court, both parties referred to the later versions of both Articles VII and VIII.   In the absence of some explanation to the contrary, we are obliged to confine ourselves to the administrative record in determining whether Dr. Sywak received fair procedure.   Consequently the bylaws which were lodged with the judicial review committee and were relied upon during its deliberations are the correct ones for our purposes.

4.   As to one patient, Mary O., the committee found that the evidence supported certain charges.   As to those remaining, the committee found that Dr. Sywak had “simply failed to prove by clear and convincing proof, that the Medical Staff Executive Committee's charges were arbitrary, unreasonable or not sustained by the evidence.”

5.   Guidelines for Formulation of Medical Staff ByLaws, Rules and Regulations by the Joint Committee on Accreditation of Hospitals (“the JCAH Guidelines”) and the Uniform Code of Hearing and Appeal Procedures of the California Medical Association and California Hospital Association (“the CMA/CHA Uniform Code”).

BRAUER, Associate Justice.

AGLIANO, P.J., and ZECHER, J., concur.