Nashed v. Los Robles Regional Medical Center CA2/6 ( 2022 )


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  • Filed 10/24/22 Nashed v. Los Robles Regional Medical Center CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    ASHRAF NASHED,                                                 2d Civ. No. B313131
    (Super. Ct. No. 56-2019-
    Plaintiff and Appellant,                                00529474-CU-WM-VTA)
    (Ventura County)
    v.
    LOS ROBLES REGIONAL
    MEDICAL CENTER et al.,
    Defendants and
    Respondents.
    Ashraf Nashed, M.D. appeals a judgment denying his
    petition for writ of administrative mandamus to challenge the
    decision of respondents Los Robles Regional Medical Center and
    Los Robles Hospital Medical Staff, Inc. (collectively the Hospital)
    to deny his request for category III cardiology privileges. We
    conclude, among other things, that: 1) the admission of
    unfavorable evidence at the administrative hearing did not deny
    Nashed a fair administrative proceeding; 2) an administrative
    hearing judge and an appeal board member were not biased
    1
    against Nashed; and 3) substantial evidence supports the
    judgment. We affirm.
    FACTS
    Nashed is an interventional cardiologist. He practiced
    medicine at the Hospital with “staff and surgical privileges.” The
    Hospital’s medical executive committee (MEC) makes
    “recommendations regarding the Medical Staff[’s]” performance.
    The Hospital’s medical staff granted Nashed’s application
    for reappointment to the medical staff and certain cardiology
    privileges. But they denied his request for full “[c]ategory III
    interventional cardiology privileges” because he “lacked the
    professional ability and clinical judgment qualifications for
    [those] privileges.”
    Nashed requested a hearing under the Hospital’s review
    procedures, which include a hearing before an administrative
    hearing judge, referred to as an “arbitrator,” and a review by an
    appeal board.
    The arbitrator conducted a hearing where medical experts
    testified in favor of and against Nashed. The arbitrator upheld
    the recommendation to deny full category III privileges. Nashed
    appealed to the board of trustees. His appeal was decided by a
    three-member appeal board appointed by the trustees.
    The appeal board affirmed the arbitrator’s decision. In
    2019, the board of trustees issued the final decision affirming the
    arbitrator’s decision.
    Nashed filed a petition for writ of administrative
    mandamus. (Code Civ. Proc., § 1094.5.) He claimed he was
    denied a fair administrative proceeding; inadmissible evidence
    was admitted; the arbitrator was biased; Doctor Paul David, a
    2.
    member of the appeal board, was biased; and there was no
    substantial evidence to support the decision.
    The Hospital claimed the medical evidence in the record
    showed problems with Nashed’s medical judgment. Nashed
    treated an 84-year-old patient and anticipated performing an
    angioplasty, but he had “difficulty with passing the balloon.”
    Another cardiologist had to perform the procedure. Nashed
    “failed to adequately plan” for the procedure, “was incapable of
    completing [it],” and 3) “lacked appropriate clinical judgment.”
    The superior court independently reviewed the
    administrative record. It found Nashed received a fair
    administrative hearing. Nashed did not show that the arbitrator
    and David were biased, and the evidence supported the decision
    to deny the category III privileges.
    DISCUSSION
    A Fair Administrative Hearing
    Nashed contends he was denied a fair administrative
    hearing. We disagree.
    “A hospital may not deprive a physician of staff privileges
    without granting him minimal due process of law protection.”
    (Rhee v. El Camino Hospital Dist. (1988) 
    201 Cal.App.3d 477
    ,
    488.) “This does not, however, compel adherence to formal
    proceedings or to any single mode of process.” (Id. at p. 489.) “A
    physician’s right to pursue his livelihood . . . must be balanced
    against . . . the interest of members of the public in receiving
    quality medical care . . . .” (Ibid.) When the issue is a fair
    procedure, “the court will treat the issue as one of law, subject to
    independent review based on the administrative record.” (Ellison
    v. Sequoia Health Services (2010) 
    183 Cal.App.4th 1486
    , 1496.)
    3.
    The Purmer Letter
    Nashed contends a letter by Doctor Purmer should have
    been excluded at the administrative hearing. In that letter
    Purmer evaluated Nashed’s deployment of a “stent.” He said,
    “The stent was deployed at suboptimal pressure and this greatly
    increases the risk for stent thrombosis.” Nashed claims this was
    not Purmer’s actual letter and the arbitrator erred by not having
    an expert examine it to make sure it was not a forged copy. We
    disagree.
    Purmer authenticated the letter by testifying he wrote it.
    The arbitrator examined it and found it was the original
    document. The letter was properly admitted (Evid. Code, § 1413;
    People v. Charles (2015) 
    61 Cal.4th 308
    , 322), and Nashed has not
    shown prejudice because the arbitrator did not rely on it in
    making his findings. (D.Z. v. Los Angeles Unified School Dist.
    (2019) 
    35 Cal.App.5th 210
    , 231.)
    The November 11th Letter
    Nashed contends the arbitrator improperly admitted a
    November 11, 2014, letter where Nashed said he was
    relinquishing his interventional cardiology privileges. He claims
    it was admitted without proper authentication.
    But “ ‘strict rules of evidence’ ” do not apply in
    administrative hearings. (Mohilef v. Janovici (1996) 
    51 Cal.App.4th 267
    , 291-292; Rhee v. El Camino Hospital Dist.,
    supra, 201 Cal.App.3d at p. 489.) The letter was not signed. But
    the arbitrator could consider the timing of the letter, its content,
    and the surrounding circumstances to find Nashed wrote it.
    (Evid. Code, §§ 1412, 1417, 1421.) Nashed has not shown
    prejudice. We note the arbitrator did not mention or rely on it in
    making his decision.
    4.
    The Arbitrator’s Alleged Bias
    Nashed contends arbitrator John Harwell was biased
    because he requested Harwell to be his counsel in these
    proceedings, but Nashed ultimately “declined to retain him.”
    Nashed argues Harwell “may have harbored ill will toward [him]
    given that he declined Mr. Harwell’s services.”
    The trial court found Nashed knew the relevant facts before
    the hearing, but he “only raised this concern after the Arbitrator
    ruled against him.” Disqualification for bias “must be raised at
    the earliest reasonable opportunity after the party becomes aware
    of the disqualifying facts.” (North Beverly Park Homeowners
    Assn. v. Bisno (2007) 
    147 Cal.App.4th 762
    , 769, italics added;
    People v. Tappan (1968) 
    266 Cal.App.2d 812
    , 817.) Nashed
    forfeited this issue because he knew the facts before the hearing,
    but he only raised the bias issue after he received an unfavorable
    decision. (Goodwin v. Comerica Bank, N.A. (2021) 
    72 Cal.App.5th 858
    , 867.)
    Bias is not “presume[d].” (Natarajan v. Dignity Health
    (2021) 
    11 Cal.5th 1095
    , 1115; id. at p. 1113 [there must be
    evidence showing “an intolerable risk of actual bias”]; El-Atttar v.
    Hollywood Presbyterian Medical Center (2013) 
    56 Cal.4th 976
    ,
    995; Weinberg v. Cedars-Sinai Medical Center (2004) 
    119 Cal.App.4th 1098
    , 1115.) Bias is not shown because the
    arbitrator ruled against Nashed on two evidentiary issues.
    (Andrews v. Agricultural Labor Relations Board (1981) 
    28 Cal.3d 781
    , 795.) Nashed has not shown the arbitrator’s rulings or
    hearing conduct showed bias. The “mere suggestion of bias” is
    not sufficient “to overcome the presumption of integrity and
    honesty” of the decision-maker. (BreakZone Billiards v. City of
    Torrance (2000) 
    81 Cal.App.4th 1205
    , 1236.) Nashed only makes
    5.
    the speculative claim that Harwell “may have harbored some ill
    will” against him. (Italics added.) But he has not cited to
    evidence.
    Moreover, Nashed had the opportunity to present evidence
    of bias at the mandamus hearing (Code Civ. Proc., § 1094.5, subd.
    (e); Pomona Valley Hospital Medical Center v. Superior Court
    (1997) 
    55 Cal.App.4th 93
    , 101), but did not do so. Based on its
    independent judgment, the trial court found no evidence of bias.
    (Levingston v. Retirement Board (1995) 
    38 Cal.App.4th 996
    , 1000;
    Val Strough Chevrolet Co. v. Bright (1969) 
    269 Cal.App.2d 855
    ,
    860.) Nashed has not shown the court erred.
    Bias of An Appeal Board Member
    Nashed contends Doctor David, a member of the appeal
    board, was biased. He “is informed that Dr. David may have a
    financial interest due to his practice group’s exclusive contract to
    staff the Emergency Department with physicians at Los Robles.”
    (Italics added.) He argues he should have been given a chance to
    “voir dire” him.
    But the trial court correctly found Nashed forfeited this
    claim because: 1) Nashed only raised it “after the Appeal Board”
    decision; 2) he knew the identity of the board members “14
    months prior to” his first objection; and 3) he did not make a “voir
    dire” request to the appeal board or conduct a timely
    investigation.
    But even on the merits, the result does not change. Nashed
    claims a letter by his attorney is evidence of David’s economic
    bias. But the trial court correctly found it was not evidence. It
    was a letter by Nashed’s counsel to another attorney requesting
    information about David. Moreover, Nashed did not present
    evidence of bias at the mandamus hearing (Code Civ. Proc.,
    6.
    § 1094.5, subd. (e); Pomona Valley Hospital Medical Center v.
    Superior Court, supra, 55 Cal.App.4th at pp. 101-102), and that
    undermines this claim. Merely speculating “that Dr. David may
    have a financial interest” does not suffice. (El-Attar v. Hollywood
    Presbyterian Medical Center, supra, 56 Cal.4th at pp. 995-997;
    Weinberg v. Cedars-Sinai Medical Center, supra, 119 Cal.App.4th
    at p. 1115.)
    Moreover, the trial court independently found no evidence
    of bias. (Levingston v. Retirement Board, supra, 38 Cal.App.4th
    at p. 1000; Val Strough Chevrolet Co. v. Bright, supra, 269
    Cal.App.2d at p. 860.) Nashed has not shown error.
    Substantial Evidence
    Nashed contends there is no substantial evidence to
    support the decision to deny him the privileges. We disagree.
    A hospital may deny privileges to a doctor where he or she
    “exhibited a pattern of substandard surgical techniques and poor
    medical judgment.” (Gill v. Mercy Hospital (1998) 
    199 Cal.App.3d 889
    , 900.) They may be denied where the doctor did
    not perform required tests, misunderstood medications, or made
    improper medical assessments. (Bonner v. Sisters of Providence
    Corp. (1987) 
    194 Cal.App.3d 437
    , 447.)
    In deciding substantial evidence, we do not “resolve
    differences of medical judgment.” (Cipriotti v. Board of Directors
    (1983) 
    147 Cal.App.3d 144
    , 154.) We determine whether the
    decision is supported “in the light of the whole record,” and we
    draw all reasonable inferences in support of the findings. (Ibid.)
    The arbitrator found Nashed was not eligible for category
    III privileges because of: 1) “a historic problem with Dr. Nashed’s
    clinical judgment and technical skills,” and 2) his “lack of
    7.
    understanding” of his responsibilities “to assure that patients are
    prepared for interventional procedures.”
    Nashed challenges these findings by citing to his own
    testimony. But the issue is not whether some evidence supports
    appellant, it is whether substantial evidence supports the
    judgment. The arbitrator did not find Nashed to be credible.
    Nashed notes assessments by Doctor Mahmud and Doctor
    Norcross were “laudatory.” But the arbitrator gave greater
    weight to other doctors who testified against Nashed. We do not
    resolve “differences of medical judgment.” (Cipriotti v. Board of
    Directors, supra, 147 Cal.App.3d at p. 154.) Nashed claims a
    quality care committee (QCC) determined that “no restriction on
    his privileges was necessary.” But it found that Nashed had to
    “be limited to diagnostic cardiology and forego interventional
    (invasive) cardiology” until further review. Nashed claims an ad
    hoc committee (AHC) decided not to terminate his current
    privileges. But the issue is entitlement to higher privileges.
    Moreover, Nashed must show the trial court erred. The
    court made its own independent findings from the record.
    (Levingston v. Retirement Board, supra, 38 Cal.App.4th at
    p. 1000.) It found Nashed did not have “the professional ability
    and clinical judgment qualifications for those privileges” as
    shown by the testimony and reports by “[Doctors] Dohad, Green,
    and Papanicolaou.” Nashed has not shown error.
    Nashed attempted an angioplasty procedure for an 84-year-
    old patient that he was unable to complete. Another doctor had
    to finish the operation for him. The treatment of this patient
    showed problems with Nashed’s medical abilities. Doctor
    Papanicolaou said this incident showed “questionable judgment
    calls” by Nashed. Nashed attempted “a quite challenging vessel
    8.
    on the second day with no clear advance in strategy.” Doctor
    Reidy said “by having a physician caring for a patient that we
    have concerns over to where we have to provide a backup . . .
    every time he lays hands on that patient” is a problem. (Italics
    added.) “We did not feel that was safe for the community and a
    reasonable thing for the medical staff to be burdened with doing.”
    (Italics added.)
    Doctor Suhail Dohad testified Nashed performed a renal
    artery stent operation on a patient without documentation to
    support it and without a medical necessity for it. Nashed did not
    meet the standard of care. He performed an abdominal
    aortography without a medical necessity for it. He had
    unnecessarily exposed a patient to “multiple potential dramatic
    complications.” He had created the risk for stent thrombosis.
    Doctor Nathan Green said Nashed had “inadequate
    documentation” of a “final angiographic result” and he performed
    a “renal arteography” that “was medically unnecessary in a
    patient with recent renal insufficiency.” The arbitrator found
    Green’s testimony showed Nashed had “substandard technical
    skills” that resulted in a “coronary dissection, unrecognized
    perforation,” and it showed his “misinterpretation of clinical
    results.” The trial court could reasonably make the same
    findings. Dohad concluded that Nashed failed “to adequately
    manage medications,” which was “the etiology of the cascade of
    events” leading to a “patient’s demise.”
    The MEC reviewed Nashed’s performance and noted his
    privileges were summarily suspended in 2008. Nashed had
    inserted a stent in a “wrong vessel.” Dohad said Nashed had
    “multiple opportunities” to prevent this mistake. Nashed had
    performed an abdominal aortography without a patient’s consent.
    9.
    MEC said Nashed “did not provide competent interventional
    cardiology care to elective and emergency patients consistently.”
    (Italics added.)
    DISPOSITION
    The judgment is affirmed. Costs on appeal are awarded in
    favor of the respondents.
    NOT TO BE PUBLISHED.
    GILBERT, P. J.
    We concur:
    YEGAN, J.
    PERREN, J.*
    *Retired Associate Justice of the Court of Appeal, Second
    Appellate District, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    10.
    Ronda J. McKaig, Judge
    Superior Court County of Ventura
    ________________________________
    Fenton Law Group and Nicholas D. Jurkowitz for Plaintiff
    and Appellant.
    Theodora Oringher, Todd C. Theodora, Anthony F.
    Witteman and Adam G. Wentland for Defendants and
    Respondents.
    11.
    

Document Info

Docket Number: B313131

Filed Date: 10/24/2022

Precedential Status: Non-Precedential

Modified Date: 10/24/2022