Friday, June 7, 2013
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S.C. Overturns Ruling on Denial of Hospital Staff Privileges
High Court Says Bylaws Breach Does Not Necessarily Violate Fairness Requirement
By KENNETH OFGANG, Staff Writer
A delegation by a committee of doctors to a hospital governing board of the committee’s authority to appoint a peer review panel did not deprive the physician under review of any rights guaranteed by state law, the state Supreme Court ruled yesterday.
The justices unanimously overturned a ruling by this district’s Court of Appeal in favor of Dr. Osamah El-Attar, an internist who has been conducting a years-long fight to regain his staff privileges at Hollywood Presbyterian Hospital. The physician has claimed that members of the panel that voted to lift his privileges had a conflict of interest because of financial ties to hospital management, which he had long criticized.
El-Attar applied in 2002 for renewal of his privileges, which were set to expire the following year. The hospital’s Medical Executive Committee recommended approval, but its Governing Board voted to deny the application and to suspend the doctor’s clinical privileges after El-Attar was identified by outside auditors as one of several doctors who may have improperly consulted with patients admitted as emergency cases.
The medical committee, which had veto power over the suspension of clinical privileges but not over the denial of reappointment to the medical staff, rejected the suspension, which was automatically terminated.
Hearing Requested
El-Attar, acting under the hospital bylaws and the state peer review statute, requested a hearing on his application for reappointment to the medical staff. The bylaws at the time required that such a hearing be “conducted by a Judicial Review Committee appointed by the Medical Executive Committee and composed of at least five (5) members of the Active Staff” and that the medical committee appoint a hearing officer as well.
The medical committee, however, concluded that since it was the board that had initiated the process, the board should appoint the JRC. The board, in turn, delegated that authority to an ad hoc committee of the board that had overseen the audit.
That committee issued a notice of charges against El-Attar and appointed a hearing officer and a JRC. The panel met approximately 30 times over the next two years before issuing its decision.
It found that the physician had demonstrated patterns of dangerous and substandard practice and inadequate medical record documentation, and had verbally abused staff members. It unanimously concluded the board’s denial of privileges was “reasonable and warranted,” but said it would have “pursued an intermediate resolution” had it been the initial decision maker.
An appeal board and the Governing Board affirmed the decision, and the doctor’s privileges were lifted in 2006.
In 2007, the doctor filed a mandate petition, arguing that he was denied substantive and procedural due process, in part because the medical committee had delegated its authority to appoint the JRC.
Los Angeles Superior Court Judge Mary Ann Murphy denied the petition, saying the delegation of appointment authority was fair and not contrary to any express provision of the bylaws.
Delegation Issue
In reversing, Div. Four of the Court of Appeal said the task could not be delegated in the absence of a bylaw permitting the committee to do so. El-Attar, the court said, had been deprived of a significant benefit of the peer review process, even though the panel rejected the doctor’s claim that JRC members were biased.
But Justice Goodwin H. Liu, writing for the high court yesterday, said that judicial review of a hospital’s peer review decisions is limited to determining whether the doctor received the minimum protections granted by Business and Professions Code Secs. 809 through 809.8—including notice and a hearing before a neutral factfinder, the right to call witnesses and present evidence, and the right to a written decision by the trier of fact.
Thus, the justice wrote, a deviation from the hospital’s bylaws will not support judicial relief unless it was so material as to deprive the doctor of the fair procedure that the statute contemplates. And the fact that the body that appointed the panel in El-Attar’s case was the hospital board and not the medical committee was not as great a deviation as the Court of Appeal believed it was, Liu concluded.
“Because a hospital’s medical staff and its governing body both have significant and at times overlapping roles to play in the peer review process, the identity of the entity that appoints the participants in a physician’s judicial review hearing is not, as the Court of Appeal held, necessarily determinative of whether the physician does or does not receive a fair hearing,” he wrote.
Liu emphasized that the court was not ruling on whether El-Attar received a fair hearing, only that the appointment of the panel by the hospital board did not necessarily render the hearing unfair, leaving it to the Court of Appeal to consider on remand whether there was actual bias or other impropriety in the proceedings.
The case was argued in the Supreme Court by Kurt L. Schmalz of Lurie, Zepeda, Schmalz & Hogan for El-Attar; Long X. Do for the California Medical Association as amicus supporting the doctor; H. Thomas Watson of Horvitz & Levy for Hollywood Presbyterian; and Barry S. Landsberg of Manatt, Phelps & Phillips for Dignity Health and Adventist Health System/West as amicus supporting the hospital.
The case is El-Attar v. Hollywood Presbyterian Medical Center, 13 S.O.S. 2895.
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