Powell v. Bear Valley Community Hospital ( 2018 )

Filed 3/26/18; Certified for Publication 4/16/18 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBERT O. POWELL, D072616
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS1410052)
BEAR VALLEY COMMUNITY HOSPITAL
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Joseph R. Brisco, Judge. Affirmed.
Law Office of John D. Harwell and John D. Harwell for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Maureen M. Home; DiCaro, Coppo & Popcke,
Carlo Coppo and Michael R. Popcke for Defendants and Respondents.
The Board of Directors (the Board) of Bear Valley Community Hospital (Bear
Valley) denied Dr. Robert O. Powell's advancement from provisional to active staff
membership and reappointment to Bear Valley's medical staff. Dr. Powell appeals from
the superior court judgment denying his petition for writ of mandate to void the Board's
decision and for reinstatement of his medical staff privileges. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brownwood, Texas
Dr. Powell practiced medicine in both Texas and California as a general surgeon.
In 2000, the medical executive committee of Brownwood Regional Medical Center
(Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that
he severed the boy's vas deferens during a hernia procedure or of the ensuing
implications. 1 Further, the committee found that Dr. Powell falsely represented to
Brownwood's medical staff, on at least two occasions, that he fully disclosed the
circumstances to the parents—behavior which the committee considered to be dishonest,
obstructive, and which prevented appropriate follow-up care. Based on the committee's
findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges.
The Texas State Board of Medical Examiners (Texas Board) completed an
investigation of Dr. Powell's revocation of staff privileges at Brownwood. In a letter
dated September 12, 2001 (2001 letter), the Texas Board advised Dr. Powell that its
investigation, file No. "00-1243," was being "CLOSED with no action recommended
because the evidence does not indicate a violation of the Texas Medical Practice Act."
The Texas Board authorized him to use the 2001 letter, signed by the chief of
investigations, to inform other entities of the case "closure."
1 The fair hearing committee's report and findings were adopted by Brownwood's
medical executive committee.
2
Brownwood reported its revocation of Dr. Powell's clinical privileges to the
National Practitioner Data Bank (Data Bank), citing "issues of unprofessional conduct."
In 2003, Dr. Powell submitted a responsive statement to the Data Bank, in which he
asserted that Brownwood revoked his privileges "without factual or legal justification and
in direct violation of state law." He further stated that "the [Texas Board] investigated
the allegations against me, concluded in my favor, and dismissed the allegations as
unsupportable. The dismissal was confirmed by letter dated September 12, 2001
from . . . [the] chief of investigations . . . ." Finally, Dr. Powell's responsive statement
indicated that he had filed a lawsuit against Brownwood for terminating his privileges.
Dr. Powell's lawsuit against Brownwood, which included claims for breach of
contract and tortious interference with prospective business relationships, was dismissed
when the trial court granted Brownwood's motion for summary judgment. The judgment
was affirmed on appeal (Texas court opinion). (Powell v. Brownwood Reg'l Hosp., Inc.
(Tex.App., Sept. 9, 2004, No. 11-03-00171-CV) 2004 Tex.App. LEXIS 8202, p. *1.)
The Texas court opinion recounted certain events leading to Brownwood's termination of
Dr. Powell's privileges, including his failure to advise the hernia patient's parents of
surgical complications.
Post-Brownwood
In subsequent years, Dr. Powell obtained staff privileges at other medical
facilities. In 2009, however, he applied for privileges at Eisenhower Medical Center in
Rancho Mirage, California, which inquired into the reasons for his termination of
3
privileges at Brownwood. Dr. Powell withdrew his application for privileges before
Eisenhower Medical Center could make a final decision whether to grant them.
Bear Valley, California
In October 2011, Dr. Powell applied for appointment to the medical staff at Bear
Valley. On his initial application form, Dr. Powell was required to attest whether his
clinical privileges had ever been revoked by any medical facility and if so, to separately
provide "full details" under penalty of lost privileges or a denied application. Dr. Powell
responded "yes" and separately disclosed as follows:
"Brownwood . . . terminated my privileges without factual or legal
justification. This action was reported to the Texas . . . Board . . .
and . . . Data Bank. The Texas . . . Board investigated allegations
against me and determined in my favor. This dismissal was
confirmed by letter dated September 12, 2001.
"[The Texas Board] determined that the evidence presented by the
hospital did not indicate [a] violation of the Medical Practice Act.
Consequently, all allegations were dismissed with no disciplinary
action taken."
Dr. Powell also conversed with several members of Bear Valley's medical executive
committee (MEC) regarding his termination of privileges at Brownwood: Drs. Dennis
Carden, Steven Knapik, and Michael Norman. Dr. Carden, the chief of staff and liaison
between the MEC and the Board, learned from Dr. Powell that Brownwood terminated
his privileges because its management disagreed with Dr. Powell's use of advanced
and/or costly surgical procedures. Dr. Powell told Dr. Knapik that his termination of
privileges arose from him "not getting along with" a pediatric patient's parents and that
the patient suffered "no bad clinical outcome." Dr. Norman, the credentialing chair, was
4
aware that Brownwood had terminated Dr. Powell's privileges but considered the event
largely irrelevant because it occurred many years ago and there had been no recent
incidents. Dr. Powell did not include in his application materials an actual copy of the
2001 letter. Based on the MEC's recommendation, the Board approved Dr. Powell's
appointment as a member of the provisional medical staff for one year.
In due course, 12 of Dr. Powell's surgical patients' charts (charts) were peer
reviewed by an external surgeon, Dr. F. Allen Rutledge, II, who assigned scores ranging
from 1 (best) to 5 (worst) on each of the charts. Bear Valley considered a score of 3 or
above to be a minor, moderate, or major deviation from the standard of care, requiring
remedial action. Of the 12 reviewed charts, eight of them scored a "3" or above,
including two charts with a score of "4" or higher. For each of the eight problematic
charts, Dr. Rutledge provided his written opinions regarding deficiencies in medical care
and/or practices, ranging from failing to obtain patients' informed consents to a
preventable injury to a patient's organ.
In spring of 2012, the MEC recommended to the Board that Dr. Powell advance to
active privileges based on having seen only two of his peer reviewed charts. When the
Board was informed of the full results of Dr. Powell's peer review, it expressed concerns
to the MEC. The MEC retracted its recommendation of active privileges so that it could
5
review and discuss all of Dr. Powell's peer reviewed charts and he could complete a 90-
day proctoring requirement. 2
In summer of 2012, the MEC again recommended to the Board that Dr. Powell
advance from provisional to active staff privileges. In the same time frame, Dr. Powell
submitted a "reapplication" for staff privileges. In his reapplication materials, he
indicated that Brownwood had previously terminated his privileges and there was a
"report on file" regarding the matter.
Due to its lingering concerns regarding Dr. Powell's competency, the Board
requested additional information before voting on the MEC's recommendation, including
Dr. Powell's credentialing file and documents related to his proctored surgeries. The
Board also sought to engage in a dispute resolution process in which two members of the
Board would meet with two members of the MEC (two-plus-two). The MEC would not
meet with the Board or provide the requested documents. In October 2012, the Board
sent a list of questions to the MEC, including questions relating to whether Dr. Powell's
privileges had ever been revoked at a hospital. Dr. Carden agreed that the MEC would
respond to the questions at the next Board meeting. Dr. Powell's provisional staff
privileges were set to expire on November 15, 2012.
At the next Board meeting on November 13, Dr. Carden, on behalf of the MEC,
informed the Board of what Dr. Powell had said regarding why his privileges at
2 Pursuant to Bear Valley's medical staff bylaws in effect at the time (bylaws), the
MEC recommended to the Board whether a physician should advance from provisional to
active staff privileges. Under the bylaws, the Board possessed the final authority to
approve the physician's medical staff privileges.
6
Brownwood were terminated, namely, an unfavorable political and/or economic
environment and disagreement over Dr. Powell's use of advanced surgical procedures.
Based on Dr. Powell's oral and written statements, Dr. Carden understood that
Brownwood's allegations of unprofessional conduct were dismissed by the Texas Board,
all of which was evidenced by the 2001 letter. The Board wished to see a copy of the
"exonerat[ion]" letter, to which Dr. Carden said he should be able to obtain it. The Board
set a follow-up meeting in two days. As it turned out, Dr. Powell did not have (or would
not produce) the 2001 letter. On November 14, the Board and the MEC notified him that
a Board meeting was set for the following day, at which time the Board would be
considering whether to extend his provisional privileges to allow him more time "to
obtain the verification letter from the Texas . . . Board . . . ."
On November 15, with the specter that the Board would not have "the [2001]
letter" to review at its meeting, Bear Valley's general counsel conducted some legal
research and located a copy of the Texas court opinion, which she provided to Dr. Carden
and the Board members. At the Board meeting, the members discussed their concerns
that Dr. Powell had not produced a copy of the 2001 letter and that the narrative of events
in the Texas court opinion contradicted Dr. Powell's explanations regarding why his
privileges at Brownwood were terminated. On behalf of the MEC, Dr. Carden withdrew
the MEC's recommendation regarding Dr. Powell's privileges, deeming Dr. Powell's
application "incomplete" due to the missing 2001 letter. The Board did not vote on Dr.
Powell's privileges that night, and his provisional privileges expired. The MEC notified
7
Dr. Powell that his provisional privileges expired due to an incomplete application, but
encouraged him to reapply.
Subsequently, Dr. Powell provided the Board with a letter from the Texas Board
dated December 16, 2002 (2002 letter), claiming it was the relevant letter pertaining to
his termination of privileges at Brownwood. The 2002 letter, which was signed by a staff
attorney and not the chief of investigations, indicated that an investigation for a matter
identified only as "log #02-0448" had been closed by the Texas Board.
In December 2012, the MEC again recommended to the Board that Dr. Powell be
granted active staff privileges, retroactive to November 15, 2012. The Board invited Dr.
Powell to attend a meeting and present additional documentation, but he declined to meet
and did not provide any other materials. He did not produce a copy of the 2001 letter. In
April 2013, the Board reached a tentative final decision to deny his request for active
staff privileges, triggering Dr. Powell's right to a hearing, which he requested.
Administrative Proceedings
The Board provided Dr. Powell with a statement of charges forming the basis for
its tentative final decision, including his (1) patient care issues identified during external
peer review, by chart number (charge 1); 3 (2) incomplete application for privileges
and/or failure to provide the 2001 letter (charge 2); and (3) misrepresentation of facts
surrounding his termination of privileges at Brownwood (charge 3).
3 Not long after providing the statement of charges, the Board provided Dr. Powell
with an amendment to the statement of charges, notifying him of one more chart and
bringing the total number of deviant charts to eight.
8
The administrative hearing continued over multiple dates in the latter half of 2013.
Dr. Powell conducted voir dire of the hearing officer, Thomas Bradford, and the
prospective panel members of the judicial review committee (JRC), consisting of various
doctors. Dr. Powell inquired into the hearing officer's and panel members' backgrounds,
any potential conflicts or biases, and asserted challenges for cause. The duly constituted
JRC heard opening arguments, testimony from numerous witnesses offered by the Board
and Dr. Powell, and closing arguments. 4 During the proceedings, the hearing officer
provided instructions on procedural and legal matters, ruled on the parties' objections to
evidence, and endeavored to keep the parties focused on the charges at hand. In February
2014, the JRC issued its written report, unanimously finding that the Board substantiated
its charges against Dr. Powell by a preponderance of the evidence and that the Board's
tentative final decision to deny his request for active privileges was both reasonable and
warranted.
The JRC would not have upheld the Board's decision based solely on charge 1
relating to external peer review issues. However, as to charge 2, the JRC found that Dr.
Powell willfully failed to produce the 2001 letter "to prevent an inquiry into the reasons
for" his termination of privileges at Brownwood and attempted to deceive the Board by
producing a different letter altogether, rejecting Dr. Powell's claim that he did not know
or was confused about which letter the Board wanted to see. Additionally, as to charge 3,
the JRC found that Dr. Powell misrepresented the reasons why his Brownwood privileges
4 Raymond Hino, the chief executive officer of Bear Valley, presented the Board's
case. Hino was not an attorney.
9
were terminated and did not inform anyone at Bear Valley about his failure to make
disclosures to the hernia patient's parents or that he repeatedly lied to Brownwood's
medical staff about doing so. The JRC explained in detail its reasons for finding that Dr.
Powell displayed fundamental character defects—dishonesty and deceitfulness—which
justified the Board's tentative final decision. 5
Under Bear Valley's bylaws, Dr. Powell had the right to an administrative appeal
of the JRC's decision. He wished, however, to bypass an administrative appeal and
directly petition the superior court for a writ of mandamus. With Dr. Powell's
agreement, the Board affirmed the JRC's decision as its final decision and deemed Dr.
Powell's exhaustion of administrative remedies, thus permitting him to directly petition
for a writ of mandate.
In superior court, Dr. Powell filed a petition for writ of mandate under Code of
Civil Procedure sections 1094.5 and 1094.6, seeking to void the JRC's/Board's decision
and to have his medical privileges reinstated. The trial court denied the petition, and this
appeal followed.
5 The JRC also found that Dr. Powell intended to deceive the JRC: "[T]he evidence
offered by Dr. Powell on [charge 3] throughout the hearing was intended to mislead and
deceive this body in the same fashion that he misled and deceived the administrators,
medical staff, and board members of [Bear Valley]."
10
DISCUSSION
I
Guiding Principles
Our review of the JRC's/Board's decision, like that of the superior court, is
governed by Code of Civil Procedure section 1094.5. Under subdivision (b) of this
statute, we determine "whether the respondent has proceeded without, or in excess of,
jurisdiction; 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, the order or decision is not supported by the findings, or the
findings are not supported by the evidence." (Ibid.) Abuse of discretion established by
the respondent's failure to proceed in the manner required by law is prejudicial and
warrants relief only where "the deviation is material." (El–Attar v. Hollywood
Presbyterian Medical Center (2013) 56 Cal. 4th 976, 991 (El–Attar).)
"Decisions concerning medical staff membership and privileges are made through
a process of hospital peer review. Every licensed hospital is required to have an
organized medical staff responsible for the adequacy and quality of the medical care
rendered to patients in the hospital. [Citations.] The medical staff must adopt written
bylaws 'which provide formal procedures for the evaluation of staff applications and
credentials, appointments, reappointments, assignment of clinical privileges, appeals
mechanisms and such other subjects or conditions which the medical staff and governing
body deem appropriate.' [Citations.] The medical staff acts chiefly through peer review
committees, which, among other things, . . . recommend whether staff privileges should
11
be granted or renewed." (Mileikowsky v. West Hills Hospital & Medical Center (2009)
45 Cal. 4th 1259, 1267 (Mileikowsky).) The peer review process is codified at Business
and Professions Code section 809 et seq. 6 and is a part of the "comprehensive statutory
scheme for the licensure of California physicians" required to be included in the medical
staff bylaws of acute care facilities. (Mileikowsky, at p. 1267.)
"The primary purpose of the peer review process is to protect the health and
welfare of the people of California by excluding through the peer review mechanism
'those healing arts practitioners who provide substandard care or who engage in
professional misconduct.' " (Mileikowsky, supra, 45 Cal.4th at p. 1267.) "Another
purpose, also if not equally important, is to protect competent practitioners from being
barred from practice for arbitrary or discriminatory reasons. Thus, section 809 recites:
'Peer review, fairly conducted, is essential to preserving the highest standards of medical
practice' ([§ 809], subd. (a)(3)), but '[p]eer review that is not conducted fairly results in
harm both to patients and healing arts practitioners by limiting access to care' ([§ 809],
subd. (a)(4)). Peer review that is not conducted fairly and results in the unwarranted loss
of a qualified physician's right or privilege to use a hospital's facilities deprives the
physician of a property interest directly connected to the physician's livelihood." (Ibid.)
However, "[n]ot every violation of a hospital's internal procedures provides grounds for
judicial intervention." (El–Attar, supra, 56 Cal.4th at p. 990.)
6 Further unspecified statutory references are to the Business and Professions Code.
12
Section 805 requires hospitals to report the denial or revocation of privileges for
medical disciplinary reasons to the Medical Board of California, which maintains a
historical record that includes this information. Further, hospitals are
"usually . . . required to report disciplinary actions to the . . . Data Bank, established for
the purpose of tracking the activities of incompetent physicians." (Mileikowsky, supra,
45 Cal.4th at p. 1268.) As a result, the denial of staff privileges can be detrimental to a
physician's career. Balanced against the physician's interest are the public's interest in
receiving quality medical care and a hospital's duty to its patients to provide competent
staff physicians. (Rhee v. El Camino Hospital District (1988) 201 Cal. App. 3d 477, 489;
§§ 809, 809.05; Cal. Code Regs., tit. 22, §§ 70701, subd. (a)(7), 70703, subds. (a) & (b).)
"In the exercise of this duty, the hospital must be free to establish and enforce selection
and review procedures, so long as they do not result in arbitrary or discriminatory
practices." (Rhee, at p. 501.)
With respect to private hospitals, like Bear Valley, the physician's fair procedure
rights "arise from section 809 et seq. and not from the due process clauses of the state and
federal Constitutions." (Kaiser Foundation Hospitals v. Superior Court (2005) 128
Cal. App. 4th 85, 102.) These statutes "establish[ ] minimum protections for physicians
subject to adverse action in the peer review system." (Mileikowsky, supra, 45 Cal.4th at
p. 1268.) The statutory scheme requires hospitals to provide an affected physician both
notice and the opportunity for a hearing when a peer review committee has recommended
a "final proposed action" that must be reported to the Medical Board. (§§ 809.1, subds.
(a), (b), 809.3, subd. (b)(1), (2) & (3).)
13
The hearing must be held "before a trier of fact" that, as determined by the peer
review body, is either "an arbitrator or arbitrators selected by a process mutually
acceptable to the licentiate and the peer review body" or "a panel of unbiased individuals
. . . which shall include, where feasible, an individual practicing the same specialty as the
licentiate." (§ 809.2, subd. (a).) During the hearing, both parties have the right "[t]o call,
examine, and cross-examine witnesses" and "[t]o present and rebut evidence determined
by the arbitrator or presiding officer to be relevant." (§ 809.3, subd. (a)(3), (4).) "Upon
the completion of a hearing . . . the licentiate and the peer review body involved have the
right to . . . : [¶] [a] written decision of the trier of fact, including findings of fact and a
conclusion articulating the connection between the evidence produced at the hearing and
the decision reached." (§ 809.4, subd. (a)(1).) Although section 809.1 et seq. speaks of a
"peer review body," the procedural rights apply regardless of whether an adverse action is
initiated by a peer review body or by a hospital's governing board. (Sahlolbei v.
Providence Healthcare, Inc. (2003) 112 Cal. App. 4th 1137, 1148 (Sahlolbei).)
II
Right to a Hearing
Dr. Powell claims he was entitled to a hearing before the lapse of his provisional
staff privileges in November 2012. Under the circumstances, we disagree.
A physician with staff privileges does not have an absolute right to reappointment.
(Mileikowsky, supra, 45 Cal. 4th 1259, 1274, fn. 7 [clarifying the holding of Anton v. San
Antonio Community Hospital (1977) 19 Cal. 3d 802].) For example, when a
reappointment to medical staff does not occur due to a "delay caused by the physician's
14
failure to cooperate," the hospital is not required to renew or extend the existing
appointment. (Mileikowsky, at p. 1274, fn. 7.) Moreover, the right to a hearing for a
denial of staff privileges is limited to when the denial of privileges is for a "medical
disciplinary cause or reason." (§ 809.1; see Sahlolbei, supra, 112 Cal.App.4th at p.
1151.) A medical disciplinary cause or reason means "that aspect of a licentiate's
competence or professional conduct which is reasonably likely to be detrimental to
patient safety or to the delivery of patient care." (§ 805, subd. (a)(6).) Bear Valley's
bylaws rely on these statutory provisions to determine whether a physician is entitled to a
hearing; a lapse in clinical privileges based on submitting an incomplete application is
neither reportable under section 805 nor does it trigger the right to a hearing.
Applying the foregoing principles, we conclude that Bear Valley was not required
to afford Dr. Powell a hearing prior to the expiration of his provisional privileges or to
extend his provisional privileges until a hearing could be held. Dr. Powell's privileges
lapsed in November 2012 due to his failure to comply with the application process and
submit a document that was reasonably necessary for the MEC and Board to evaluate his
request. Under penalty of lost privileges or a denied application, Dr. Powell attested that
the 2001 letter from the Texas Board supported his statements regarding his termination
of privileges at Brownwood, but at no time did he produce the 2001 letter or have it
available for review upon request. We are not persuaded Dr. Powell was entitled to a
hearing prior to his expiration of privileges (or an extension of his provisional privileges)
because neither the MEC nor the Board had taken any action against Dr. Powell up until
then that would constitute a reportable adverse event under section 805, subdivision (b).
15
(See §§ 805, subd. (b), 809.1; cf. Sahlolei, supra, 112 Cal.App.4th at pp. 1151-1152
[hospital board's actions would result in a § 805 reportable event and thus plaintiff had
right to hearing before he lost privileges].)
Dr. Powell argues the Board surreptitiously terminated his staff privileges,
presumably for a medical disciplinary cause, by allowing his privileges to lapse and
failing to act. His argument is not supported by the record. Under Bear Valley's bylaws,
the MEC recommended whether a physician should move from provisional to active staff
status and whether a physician should continue receiving provisional privileges.
Likewise, the MEC recommended a physician's reappointment to the medical staff for the
Board's consideration. In Dr. Powell's case, the Board convened in November 2012 prior
to his expiration of provisional privileges with the express intention of voting on whether
to grant his request for active staff privileges, but the MEC withdrew its recommendation
based on its determination that his application was incomplete. Bear Valley's bylaws
squarely placed the burden of submitting a complete application and any reasonably
necessary supporting materials on the applicant, and the Board could not vote on any
request for privileges or reappointment application without a favorable recommendation
from the MEC. Prior to the lapse of Dr. Powell's privileges, neither the MEC nor the
Board had reached a decision to terminate his privileges for a medical disciplinary cause.
For these reasons, Dr. Powell was not entitled to a hearing prior to the expiration
of his provisional privileges. When the Board reached a tentative final decision in April
2013 to deny Dr. Powell's reappointment to active staff for a medical disciplinary cause,
16
which would result in a reportable adverse event under section 805, it afforded him the
right to a hearing. 7
III
The Board's Decision to Deny Dr. Powell's Request for Active Staff Privileges
Dr. Powell claims the Board exceeded its authority in this case by failing to give
great weight to the MEC's recommendation to grant him active staff privileges. It is
undisputed Bear Valley's bylaws conferred on the Board the final authority to approve or
disapprove a physician's medical staff privileges provided the Board gave "great weight
to the recommendations of the [MEC]" and did "not act in a manner that is arbitrary or
capricious." The bylaws authorized the Board to refer an application back to the MEC
for further consideration, request documents that were reasonably necessary to evaluate
the application, invoke an informal dispute resolution process, and finally, to reach a
different conclusion than the MEC.
Our review of the Board's decision is deferential, in view of the language in
section 809.05 stating that hospital governing boards have a legitimate function in the
peer-review process, provided the Board "acted within its delegated authority" and
"properly exercised independent judgment upon the relevant evidence," according due
weight to the MEC's recommendation insofar as it "reflect[s] [the MEC's] domain of
expertise." (Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal. App. 4th 1098,
7 The MEC met after the lapse of Dr. Powell's privileges and renewed its favorable
recommendation for him to receive active staff privileges retroactive to November 15,
2012. The Board voted against the MEC's recommendation.
17
1109.) We presume the Board acted properly absent an affirmative showing to the
contrary. (Id. at p. 1111.) Based on our review of the record, the Board did not exceed
its authority.
The Board initially became concerned about Dr. Powell's advancement to active
staff when it learned that the MEC made a recommendation without considering most of
his peer-reviewed charts. Later, the Board's lingering concerns regarding Dr. Powell's
competency led it to ask appropriate questions regarding his professional background.
The MEC informed the Board that Dr. Powell's privileges were revoked at Brownwood
for reasons unrelated to medical care. Largely satisfied with the MEC's explanations, the
Board was prepared to approve Dr. Powell's privileges if it could only see a copy of the
2001 letter. His refusal to produce the 2001 letter uncovered the fact that he had not been
forthright about his termination of privileges from the outset. He had lied to various
colleagues. He produced the 2002 letter under the pretense that it was the relevant letter.
It was not. As the JRC found, regardless of whether he was at fault for the boy's surgical
complication at Brownwood, Dr. Powell lied to Brownwood's medical staff and lied to
Bear Valley's medical staff about the circumstances, showing a propensity for dishonest
and unethical conduct that could negatively impact his and other physicians' provision of
medical care. Under the circumstances, the Board acted within its authority to protect
patients. (See, e.g., Webman v. Little Co. of Mary Hospital (1995) 39 Cal. App. 4th 592,
602-603 [hospital's denial of reappointment when appellant prevented inquiries into a
prior cessation of privileges was "entirely reasonable"].)
18
In addition, the record shows the Board greatly deferred to the MEC on matters of
which the MEC had expertise and was fully informed, such as Dr. Powell's proctored
cases. However, the JRC found that members of the MEC had little or no insight into the
true circumstances of Dr. Powell's termination of privileges at Brownwood or the extent
of his misrepresentations, having been successfully deceived. In our view, the Board
properly exercised independent judgment based on the information presented, all the
while according due weight to the MEC's recommendation.
Dr. Powell argues the Board must have had an ulterior motive in terminating his
privileges, such as economic self-interest. We reject this argument, as there is no
substantial evidence in the record that the Board had an ulterior motive. 8 Dr. Powell
highlights certain evidence to support his argument that the Board usurped the MEC's
role, while ignoring the substantial quantity of evidence establishing the Board's
understanding of its duties and sole concern of ensuring the provision of quality medical
care at Bear Valley. We do not assess the credibility of witnesses or resolve conflicts in
testimony on appeal. Dr. Powell has failed to demonstrate the Board exceeded its
authority.
8 For example, Dr. Knapik speculated the Board may have wanted to break its
contract with Dr. Powell for budgetary reasons, but he had no factual basis to support his
theory and expressly qualified his statement as his "opinion . . . what I feel." In contrast,
it is undisputed that Dr. Powell's contract with the hospital contained a termination
clause, which either party could invoke to end the contract without cause.
19
IV
Fair Procedure
Dr. Powell challenges the fairness of Bear Valley's procedure, including various
aspects of the JRC hearing, leading to his termination of privileges. He contends (A) the
hearing officer erred by not allowing the JRC to decide whether his application for
reappointment was not acted on; (B) the hearing officer acted as an advocate for the
Board; (C) he was improperly denied access to relevant minutes of a Board meeting; (D)
he was not treated fairly or with dignity by the hearing officer; (E) the hearing officer
erroneously admitted testimony regarding settlement discussions; (F) the Board erred by
affirming the JRC's decision; (G) the Board presented evidence on new charges not
included in the notice of the charges against him; and (H) the Board was improperly
influenced by the circumstances of the young patient at Brownwood. We conclude that
Dr. Powell's contentions lack merit.
A
Dr. Powell distinguishes (1) his "request" for advancement from provisional to
active staff privileges from (2) his "reappointment" application, contending that the
Board never acted on the latter and that Bradford prevented the JRC from deciding
"whether his reappointment application . . . [was] not acted upon."
We conclude the Board's denial of Dr. Powell's request for advancement to active
staff privileges necessarily denied his reappointment to the medical staff, the grounds for
which were covered during the JRC hearing. According to the bylaws, to begin receiving
any level of staff privileges, a physician applied for initial appointment. "Active" and
20
"Provisional," among others, were different categories of medical staff membership, to be
determined at "appointment and each time of reappointment." A physician remained "in
the provisional staff for a period determined by the [MEC]," and "[i]f the provisional
staff member has satisfactorily demonstrated the ability to exercise the clinical privileges
initially granted and otherwise appears qualified for continued medical staff membership,
the member shall be eligible for placement in the active, courtesy, or consulting staff as
appropriate, upon recommendation of the [MEC.]" A medical staff member had the
option of requesting a change in medical staff status at any time, and in any event, was
required to apply for reappointment at least 60 days prior to the expiration of his or her
current appointment (at which time the MEC would recommend/determine a category of
staff membership).
In this case, the MEC's last recommendation was for the Board to approve Dr.
Powell's active staff privileges, retroactive to November 15, 2012, necessitating his
reappointment to the medical staff since his provisional privileges had lapsed. Prior to
voting on Dr. Powell's request for active privileges, the Board considered the materials he
submitted with his reappointment application and gave him the opportunity to submit
additional materials. Thus, in April 2013 the Board denied Dr. Powell's request for active
staff privileges and his reappointment to the medical staff. The JRC found that the
21
Board's decision was reasonable and warranted and neither arbitrary nor capricious; there
was nothing further for the JRC to decide. 9
B
Dr. Powell contends that Bradford acted as an "advocate" for the Board. A
hearing officer "shall not act as a prosecuting officer or advocate, and shall not be entitled
to vote," but has the power to determine the relevancy of evidence, rule on requests for
information, and to "impose any safeguards the protection of the peer review process and
justice requires." (§§ 809.2, subds. (b)-(e), 809.3, subd. (a)(4); Mileikowsky, supra, 45
Cal.4th at p. 1275.) Moreover, "bias in an administrative hearing context can never be
implied, and the mere suggestion or appearance of bias is not sufficient." (Hongsathavij
v. Queen of Angels etc. Medical Center (1998) 62 Cal. App. 4th 1123, 1142.)
Based on our review of the hearing transcript, Bradford did not act as an advocate.
He had no financial or other interest in Bear Valley; was not compensated based on the
outcome of the proceeding; and, when in his legal practice was hired to represent clients,
he far more frequently represented physicians than hospitals. During the JRC hearing,
Bradford ruled in Dr. Powell's favor on various issues and provided neutral explanations
of legal principles. For example, out of fairness to Dr. Powell, Bradford prevented the
9 Dr. Powell also argues in a footnote, without citation to the record or any legal
authority, that Bradford acted improperly by denying his request for a two-plus-two
dispute resolution process. The argument is forfeited. (Alki Partners, LP v. DB Fund
Services, LLC (2016) 4 Cal.App.5th 574, 589 ["An appellant who fails to cite accurately
to the record forfeits the issue or argument on appeal that is presented without the record
reference."].) In any event, he has failed to establish that a two-plus-two between the
MEC and Board would have obviated the need for a hearing or resulted in a favorable
outcome for him.
22
Board from (1) presenting evidence regarding any ongoing documentation issues by Dr.
Powell in patient charts that were not identified in the notice of charges, and (2)
amending the notice of charges after the hearing was underway. Bradford occasionally
asked clarifying questions of the witnesses, which we attribute to the parties'
unfamiliarity with evidentiary rules or witness examinations. In those instances,
Bradford was acting for the benefit of the JRC. On other occasions, Bradford asked
clarifying questions because he needed pertinent information to make an evidentiary
ruling. He was not acting as an advocate.
As one example of alleged advocacy, Dr. Powell asserts that Bradford improperly
allowed a witness to testify regarding the hospital's internal process of how Dr. Powell's
charts were selected to be sent out for external review and the total number of reviewed
charts. Bradford did not act as an advocate in overruling Dr. Powell's objections; the JRC
was entitled to review his charts with some procedural context.
As another example of alleged advocacy, Dr. Powell claims that Bradford
admitted testimony regarding settlement discussions between Dr. Powell and Bear
Valley. In trying to establish a timeline of events, the Board elicited testimony regarding
settlement talks, and Dr. Powell did not assert a timely objection. When Dr. Powell did
object, Bradford ruled that any settlement discussions were not relevant. 10 The brief
references to settlement discussions were not likely to cause prejudice since they merely
showed that the parties tried but were unable to informally resolve their dispute.
10 Incidentally, Bradford's colloquy with the parties and ruling on the issue were
done outside of the panel's presence.
23
After reviewing the record, including all examples identified by Dr. Powell in his
briefs, we conclude that Bradford acted impartially and within the scope of his statutory
authority.
C
Dr. Powell contends he was improperly denied access to minutes of a Board
meeting on the ground the minutes were protected under the Brown Act (Gov. Code, §
54950 et seq.). He argues that not having documentation of the closed-session meeting
was prejudicial because the Board "selectively" testified about what happened during the
meeting. His contention lacks merit. Several Board members testified about the meeting
based on their recollection; Dr. Powell had ample opportunity to test their recollection
and elicit further testimony through cross-examination. Moreover, the minutes of the
Board's meetings do not reflect any internal discussions during closed sessions and would
have been of no use to Dr. Powell for his stated purpose. Bradford did not commit
prejudicial error.
D
With virtually no citations to the record, Dr. Powell contends he was not treated
fairly or with dignity by the hearing officer. As one example, Dr. Powell claims that
Bradford made him explain a witness's anticipated testimony even though Bear Valley
did not object to the witness being called. Regardless of whether Bear Valley objected,
Bradford could ensure that the hearing was proceeding efficiently and that any proffered
evidence was relevant. Bradford also questioned the Board on certain witnesses'
anticipated testimony. He did not hold Dr. Powell to a higher standard.
24
E
Dr. Powell contends that Bradford erroneously admitted testimony regarding
settlement discussions, citing one document that contains Dr. Powell's settlement
demand. As discussed ante, on Dr. Powell's objection, Bradford ruled that settlement
discussions were not relevant and any limited references to settlement were not
prejudicial. Regarding Dr. Powell's settlement demand, the document was not admitted
in evidence for the JRC's review.
F
Dr. Powell contends the Board erred by affirming the JRC's decision. We
conclude he waived this argument by expressly agreeing to the Board's resolution to
affirm the JRC's decision and deem his exhaustion of administrative remedies so that he
could directly petition the superior court for a writ of mandate. (See Blumberg v.
Minthorne (2015) 233 Cal. App. 4th 1384, 1391 [voluntary agreement to comply with an
order waives argument that party was not required to comply with the order].) Dr.
Powell cannot now argue the Board erred by doing something he asked the Board to do.
G
Dr. Powell contends the Board included new charges against him during the
hearing in the form of new patient charts, which were not part of the statement of
charges. He is wrong. The statement of charges, as amended, notified Dr. Powell of
eight problematic charts, by chart number. To the extent a witness or documentary
exhibit referenced other chart numbers, it was to show that other charts had been sent out
25
for external peer review and returned with satisfactory scores. The Board did not base its
adverse decision against him on those other satisfactory charts.
H
Dr. Powell lastly contends the Board considered irrelevant evidence regarding, and
was improperly influenced by the circumstances of, the young hernia patient at
Brownwood. We reject his contention. The Texas court opinion and a report by
Brownwood's fair hearing committee were relevant to whether Dr. Powell misrepresented
the reasons for his termination of privileges. The Brownwood patient's case illustrated
how Dr. Powell's lack of candor and/or integrity could result in adverse patient outcomes.
There is no evidence in the record that the Board acted irrationally.
In summary, Bear Valley provided Dr. Powell a fair procedure in denying his
request for active staff privileges and reappointment to the medical staff.
26
DISPOSITION
The judgment denying Dr. Powell's petition for writ of mandate is affirmed. Costs
on appeal are awarded to Bear Valley.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
DATO, J.
27
Filed 4/16/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROBERT O. POWELL, D072616
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS1410052)
BEAR VALLEY COMMUNITY HOSPITAL ORDER CERTIFYING OPINION
et al., FOR PUBLICATION
Defendants and Respondents.
THE COURT:
The opinion in this case filed March 26, 2018, was not certified for publication. It
appearing the opinion meets the standards specified in California Rules of Court, rule
8.1105(c), the requests made pursuant to California Rules of Court, rule 8.1120(a) for
publication are GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words
"Not to be Published in the Official Reports" appearing on page one of said opinion be
deleted and the opinion herein to be published in the Official Reports.
NARES, Acting P. J.
Copies to: All parties