Mileikowsky v. West Hills Hospital 8/27/07 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B186238A

Case Date: 12/12/2007

Preview:Filed 8/27/07

Opinion following rehearing

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

GIL N. MILEIKOWSKY, Plaintiff and Appellant, v. WEST HILLS HOSPITAL MEDICAL CENTER et al., Defendants and Respondents.

B186238 (Los Angeles County Super. Ct. No. BS 091943)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Reversed with directions. Spiegel Liao & Kagay, Charles M. Kagay; Law Offices of Paul M. Hittelman and Paul Hittelman for Plaintiff and Appellant. Fenigstein & Kaufman, Ron S. Kaufman and Nina B. Ries for Defendants and Respondents.

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 5 and 6 of the DISCUSSION.

*

On August 19, 2003, the governing board of respondent West Hills Hospital and Medical Center (Hospital) upheld the dismissal, by the hearing officer, of appellant Gil N. Mileikowsky's challenge to respondent Hospital's medical staff's (Medical Staff) decision to deny appellant staff privileges. The dismissal was based on the fact that appellant declined to furnish documents relating to proceedings involving appellant at Cedars-Sinai Medical Center (not a party hereto). On August 19, 2004, appellant filed a petition for a writ of mandate that challenged the governing board's decision. The trial court denied the petition. We reversed the trial court's order in an opinion filed on June 8, 2007. Both parties petitioned for a rehearing. We granted both petitions in order to fully consider the points raised in the petitions for rehearing. Having done so, we again reverse with directions. FACTS 1. Appellant Requests Hospital Privileges, Which Are Denied; the Convocation by Hospital, at Appellant's Request, of an Administrative Peer Review Process Appellant is a physician and surgeon licensed to practice medicine in California; he is board certified in obstetrics and gynecology with a subspecialty in infertility. On May 18, 2001, he applied for reappointment to the Hospital's Medical Staff. At the time of this application, he had gynecology privileges at the Hospital. The scope of this privilege appears uncertain at this point. According to the Hospital and the Medical Staff,1 appellant had only courtesy gynecology privileges; respondents state that a courtesy privilege is given to physicians who use the Hospital only infrequently. Appellant, on the other hand, claims that his "privileges covered a full range of gynecological but not obstetrical services." Appellant's application in May 2001 was for an extension of his gynecology privileges for the 2001-2003 term, and for additional obstetrical privileges for the same term.

The Hospital and the Medical Staff are sometimes referred to collectively as respondents. 2

1

The president of the Medical Staff informed appellant by way of a letter dated April 24, 2002, that Medical Staff's medical executive committee denied appellant's application for gynecology and obstetrical privileges. The letter gave several reasons. First, the letter stated that appellant had failed to notify the Medical Staff that appellant's privileges at Century City Hospital had been terminated on November 7, 2000. Next, while appellant's application stated that he had voluntarily resigned from the EncinoTarzana Medical Center, documentation showed that he had been summarily suspended on November 16, 2000. The letter also detailed an incident in respondent Hospital when a patient specifically requested that appellant not be allowed to see her, yet appellant insisted on seeing her, and claimed he had obstetrical privileges at the Hospital when that was not the case. The letter stated that this incident did not meet the Medical Staff's professional and ethical standards. Appellant notified the Medical Staff that he appealed this decision. Pursuant to its bylaws, the Hospital appointed a "Judicial Review Committee" (JRC) and a hearing officer, attorney John D. Harwell. Under the bylaws, the hearing officer is to preside over the hearings held by the JRC and "shall not act as a prosecuting officer or advocate, and shall not be entitled to vote." The bylaws provide that the hearing officer may not be legal counsel to the Hospital or the Medical Staff and "shall gain no direct financial benefit from the outcome." On June 17, 2002, Harwell wrote to appellant and to the president of the Medical Staff a letter in which he stated that he had been appointed as the hearing officer. The letter stated that Harwell was "a hearing officer in another matter involving [appellant]," that Harwell had reviewed the charges against appellant made by the Medical Staff and that he found "no overlap of charges, incidents, facts or other circumstances with the other matter in which I [Harwell] am involved." The other matter in which Harwell was a hearing officer were proceedings involving appellant and Century City Hospital. Appellant chose to represent himself in the JRC proceedings. On July 1, 2002, a hearing was convened by the JRC which was opened by Harwell's statement that "[t]his is the first voir dire" in the matter of appellant's appeal from the decision denying him 3

hospital privileges. Appellant then proceeded to question Harwell; the transcript of appellant's examination of Harwell is approximately 50 pages long. The thrust of appellant's questioning was to demonstrate that Harwell could not serve as a fair, unbiased hearing officer. 2. Appellant's Failure To Produce the Cedars-Sinai Documents; the Hearing Officer's Order Terminating the Hearing; Hospital's Approval of the Hearing Officer's Decision On July 16, 2002, Harwell wrote appellant and the president of the Medical Staff, stating that the exchange of documents should be completed between then and Labor Day. No mention was made of documents involving appellant and Cedars-Sinai Medical Center. On July 17, 2002, Medical Staff's counsel, attorney James R. Lahana, wrote appellant stating, among things, that: "Further, please be advised that the Medical Staff still has not received copies of the Notice of Charges, findings of the Hearing Committee and transcripts and exhibits concerning the summary action which was taken against you at Cedars-Sinai Medical Center despite prior requests for such information. Previously, you refused to provide copies claiming that the attorney from Cedars-Sinai Medical Center did not authorize you to release those documents even though you are no longer a member of that staff. As a result of your refusal to provide the requested information, your application for reappointment remains incomplete. Please be aware your continued failure to provide these materials by July 28, 2002 will result in the Medical Staff amending its Notice of Charges to include allegations concerning your failure to cooperate, as well as including a reference to the Cedars-Sinai Medical Center suspension based upon the limited information contained in the Business and Profession Code Section 805 report and National Practitioner Data Bank report submitted by Cedars-Sinai Medical Center." The Cedars-Sinai documents requested by the Medical Staff are referred to hereafter collectively as the "Cedars-Sinai documents." In a letter dated July 29, 2002, addressed to the president of the Medical Staff, appellant wrote that he would be "able to respond" by August 5, 2002. Appellant, however, did not respond. On August 21, 2002, the Medical Staff amended the Notice of 4

Charges to include appellant's failure to furnish the Cedars-Sinai documents. This amendment also added as an additional charge that appellant's privileges were first suspended and then revoked by Cedars-Sinai.2 On September 3, 2002, appellant wrote hearing officer Harwell, stating that he would "not be able to respond to the latest correspondence from West-Hills till 9-10." On October 3, 2002, the Medical Staff wrote Harwell that appellant had not furnished the Cedars-Sinai documents. On November 27, 2002, the Medical Staff again wrote Harwell, stating that the Medical Staff had attempted to set a hearing on "numerous occasions" but that appellant had not been "responsive to the Medical Staff's efforts at moving this case to [a] conclusion." This letter stated that appellant had not furnished the Cedars-Sinai documents. On January 12, 2003, appellant wrote the Medical Staff, with a copy to Harwell, a lengthy letter in which he demanded that his privileges be reinstated and that the proceedings involving his privileges be dismissed. Among other things, this letter stated that, as far as the Cedars-Sinai documents were concerned, appellant had provided the Medical Staff with "2 [s]igned [r]eleases authorizing both [h]ospitals to exchange any information they [w]ish a long time ago." The Medical Staff responded to this by a letter dated January 14, 2003, addressed to Harwell, which stated that appellant "ignores the fact that he or his counsel have in their possession the very documents being sought and that the burden is on [appellant] to produce that information, not upon Cedars." This letter requested that appellant's "appeal be dismissed based upon his willful disregard of the July 29, 2002 order and his failure to produce the required documentation."

The amendment also added charges relating to appellant's alleged failure to cooperate with the application process and allegations that appellant had engaged in disruptive conduct. 5

2

By a letter dated February 5, 2003, Harwell handed down a ruling on the Medical Staff's request for terminating sanctions, as well as on number of matters that are not material to this appeal. The section of the February 5, 2003 letter that addressed the Medical Staff's request for terminating sanctions noted that appellant had refused to provide the CedarsSinai documents to the Medical Staff "apparently on the basis that the counsel for Cedars-Sinai has instructed [appellant] not to reveal these documents and further [appellant] directs the [Medical Staff] to obtain the documents from Cedars-Sinai directly." The letter states that appellant's response was not "adequate." The reason for this, according to the letter, is that the Medical Staff's bylaws and Business and Professions Code section 809.2, subdivision (d)3 "oblige [appellant] to make available for inspection and copying all documents relevant to the Notice of Charges." The letter goes on to note that the Cedars-Sinai documents are "clearly relevant" to the Notice of Charges. The February 5, 2003 letter then proceeded to discuss the law relating to terminating sanctions issued for an abuse of the discovery process under the Civil Discovery Act (Code Civ. Proc.,

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