Judge James C. Chalfant, Case 22STCP00889 2023-01-10 Tentative Ruling

Petitioner Edgar Aleman, M.D. (“Aleman”) seek a writ of mandate compelling Respondents Glendale Adventist Medical Center, doing business as Adventist Health Glendale (“Hospital”), and the Hospital’s Medical Staff (collectively, “Hospital”), to overturn the decision concerning his staff privileges.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Aleman commenced this proceeding on March 11, 2022 alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Aleman has been licensed as a physician in California since 1984 and has practiced as an interventional cardiologist in the Glendale community. Prior to the events underlying this Petition, Aleman had medical staff privileges at the Hospital.

On March 3, 2020, the Medical Staff initiated a focused professional practice evaluation (“FPPE”) of Aleman because five of his cases came before the Cardiology Committee for review. On March 9, 2020, Aleman assisted colleagues in the care of two patients and both were reported to the Chief of Staff. On March 13, 2020, the Chief of Staff elected to suspend Aleman.

On March 16 and March 24, 2020, the Medical Executive Committee (“MEC”) met and voted to uphold the summary suspension. On April 9, 2020, the MEC met and once again voted to uphold and continue the suspension. It also voted to recommend revocation of Aleman’s privileges based on the two March 9 cases and two additional cases that had been sent to an outside reviewer pursuant to the FPPE. Aleman requested a hearing.

The hearing occurred over 16 sessions between November 5, 2020 and April 22, 2021. On September 3, 2021, the judicial review committee (“JRC” or “Hearing Panel”) issued a decision that the evidence did not demonstrate that termination of Aleman’s privileges was not reasonable and warranted. The Hearing Panel upheld the suspension of Aleman’s privileges as reasonable and warranted at the time. The Hearing Panel recommended a remedial plan to allow Aleman to return to the Hospital and exercise his privileges. The Hospital Bylaws do not grant the Hearing Panel the authority to recommend such plans.

Aleman appealed the Hearing Panel’s decision. The Appeal Panel held an appeal hearing on December 1, 2021. On December 9, 2021, the Hospital’s Governing Board (“Board”) upheld the Appeal Panel decision ratifying the Hearing Panel decision.

Aleman seeks mandamus overturning the Board’s decision and an award of attorney’s fees and costs.

On March 23, 2022, Aleman served Respondent Hospital with the Petition and Summons.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). In other cases, the substantial evidence test applies. Mann v. Department of Motor Vehicles, (1999) 76 Cal.App.4th 312, 320; Clerici v. Department of Motor Vehicles, (1990) 224 Cal.App.3d 1016, 1023. When reviewing the decision of a hospital governing board, the court applies the substantial evidence standard. Hongsathavij v. Queen of Angels etc. Medical Center, (1998) 62 Cal.App.4th 1123, 1136.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California You Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, 11 Cal.3d at 515. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

Before a public or private hospital may deny a doctor the right to practice his profession at that hospital, either by termination of existing staff privileges or by the denial of an initial application for such privileges, the hospital must provide a fair procedure which affords the doctor an opportunity to answer the charges on which the exclusion rests. El-Attar v. Hollywood Presbyterian Medical Center, (2013) 56 CaI.4th 976, 987; Volpicelli v. Jared Sydney Torrance Memorial Hosp., (1980) 109 Cal.App.3d 242, 249. The concept of “fair procedure” does not require rigid adherence to any particular procedure. Bollengier v. Doctors Medical Center, (1990) 222 Cal.App.3d 1115, 1129. At a minimum, however, fair procedure requires adequate notice of the administrative action proposed or taken and a reasonable opportunity to be heard. Id. The fact that a suspension is imposed summarily does not in itself violate these fair procedure rights. Id.

As a result, every licensed hospital has a formally organized and self-governing medical staff responsible for “the adequacy and quality of the medical care rendered to patients in a hospital.” 22 CCR §70703(a). The medical staff acts primarily through peer review committees which evaluate physicians applying for staff privileges, establish standards and procedures for patient care, and assess the performance of physicians on staff. Arnett v. Dal Cielo, (“Arnett”) (1996) 14 Cal.4th 4, 10.

The Legislature has codified a physician’s fair procedure rights in Business & Professions (“B&P”) Code section 809 et seq. because “peer review that is not conducted fairly results in harm to both patients and healing arts practitioners by limiting access to care.” B&P Code §809(a)(4); see Sahlolbei v. Providence Healthcare, Inc., (2003) 112 Cal.App.4th 1137, 1147. The statutory fair procedures are mandatory and must be incorporated in a hospital’s bylaws. B&P Code §809(a)(8).

The Legislature has decreed that peer review is to be performed by licentiates. B&P Code §809.05. A peer review committee may informally investigate a complaint or an incident involving a staff physician. If the committee proposes to restrict or revoke the physician’s privileges, he or she is entitled to written notice of the charges and may request a formal hearing. B&P Code §809.1.

If the licentiate requests a hearing, it must be conducted pursuant to statutorily prescribed procedures. B&P Code §§ 809.2-809.6; Arnett, supra, 14 Cal.4th at 10. The hearing shall be held before a trier of fact. B&P Code §809.2. The peer review body shall bear the burden of persuading the trier of fact by a preponderance of the evidence that the action or recommendation is reasonable and warranted. B&P Code §809.3(b)(3). Upon completion of the hearing, both the licentiate and the peer review body have the right to a written decision, including findings of fact and a conclusion articulating the connection between the evidence and the decision. B&P Code §809.4(a)(1).

If an appellate mechanism is provided, it need not provide for de novo review but shall include the following minimum rights for both parties: (1) the right to appear and respond, (2) the right to be represented by an attorney, and (3) the right to a written decision from the appellate body. B&P Code §809.4.

Governing bodies of acute care hospitals have a legitimate function in the peer review process. B&P Code §809.05(a). When a governing body is considering a medical staff decision, it must give great weight to the decision and is prohibited from acting in an arbitrary or capricious manner. Id. The governing body has the authority to direct a peer review body to initiate an investigation or disciplinary action where it has failed to do so, but only after consultation with the peer review body. B&P Code §809.05(b). If the peer review body fails to act in response to the governing body’s direction, the governing body may take action itself after complying with the peer review procedures of B&P Code sections 809.1 to 809.6. B&P Code §809.05(c). Both a governing body and medical staff shall act exclusively in the interest of quality patient care. B&P Code §809.05(d).

Parties are bound by (a) any additional notice and hearing provisions contained in any applicable professional society or medical staff bylaws when consistent with B&P Code sections 809.1-809.4; and (b) any additional notice and hearing provisions contained in any applicable agreement or contract between the licentiate and peer review body when consistent with B&P Code sections 809.1-809.4. B&P Code §809.6(a)-(b). The protections of B&P Code sections 809.1-809.4 may not be waived by any such instrument for any action that would require filing a report with the Medical Board under B&P Code section 805. B&P Code §809.6(c).

Notwithstanding the above procedure, a peer review body may immediately suspend or restrict clinical privileges of a licentiate where the failure to take action may result in an imminent danger to the health of any person, provided the licentiate is subsequently provided with the notice and hearing rights set forth in B&P Code sections 809.1-809.4. B&P Code §809.5(a). When no person authorized by the peer review body is available to summarily suspend or restrict clinical privileges under such circumstances, the governing body of an acute care hospital or its designee may immediately suspend a licentiate’s clinical privileges if a failure to summarily suspend those privileges is likely to result in an imminent danger to the health of any individual, provided the governing body of the acute care hospital has made reasonable attempts to contact the peer review body beforehand. B&P Code §809.5(b). A suspension by the governing body of an acute care hospital which has not been ratified by the peer review body within two working days (excluding weekends and holidays) after the suspension shall terminate automatically. B&P Code §809.5(a).

If a hospital restricts or revokes a physician’s staff privileges as a result of a peer review determination, the discipline must be reported to the Medical Board. B&P Code §805(b)(2). A hospital must also report to the Medical Board any summary suspension of staff privileges, membership, or employment that remains in effect for more than 14 days by the 15th day after imposition of such discipline. B&P Code §805(e).

The attending or consulting physician will be responsible for obtaining informed consent, including blood transfusion consent. AR 3365 (Rules and Regulations (“Rules”) §E.1.d).

Patients shall be discharged only on a written order of the attending physician involved in their care. AR 3367 (Rules §E.4.a). Orders for discharge may not be contingent upon clearance from another physician. AR 3367 (Rules §E.4.a). Should a patient leave the hospital against the advice of the physicians involved in the care or without proper discharge, a notation of the incident shall be made in the patient's medical record. AR 3367 (Rules §E.4.a).

In an emergency, a member of the Medical Staff can administer treatment to the extent permitted by his or her license regardless of clinical service status or specific grant of clinical privileges. AR 3322 (Medical Staff Credentials Policy (“Policy”) §4.C(2)). For such purposes, an “emergency” is a condition that could result in serious or permanent harm to a patient and in which any delay in treatment would add to that harm. AR 3322 (Policy §4.C(1)).

A Code Blue may not be activated by overhead page in areas where physician(s) and full supportive staff are already present. AR 3411 (Code Blue Policy §B.1.d).

A Rapid Response Team (“RRT”) will be called when a patient shows signs of clinical deterioration. AR 3417. When a need is identified, the RRT will be contacted by beeper and overhead page. AR 3417. The RRT will respond to most patient care areas of the Hospital, with the exception of Critical Care and areas where a physician is present and managing the patient. AR 3417.

In all matters before a hearing panel, except for denial of an application for initial employment, the MEC bears the burden of showing by preponderance of evidence that the recommendation is reasonable and warranted. AR 3349 (Policy §7.E.1). Within ten days of the Hearing Panel’s decision, either party may request an appeal in writing. AR 3349 (Policy §7.F.1). The grounds for appeal shall be limited to (a) substantial failure by the hearing panel to comply with Hospital policy or Medical Staff bylaws such that it denied a fair hearing; or (b) arbitrary or capricious recommendations by the hearing panel that are not supported by credible evidence. AR 3349 (Policy §7.F.2).

When the Board takes final action on an appeal as a review panel, it may review any information it deems relevant, including but not limited to the findings and recommendations of the MEC, hearing panel, and applicable review panel. AR 3350 (Policy §7.G.1(a)-(b)). The Board may (1) adopt, modify, or reverse any recommendation that it receives, (2) in its discretion, refer the matter to any individual or committee for further review and recommendation, or (3) make its own decision based upon the Board's ultimate legal authority for the operation of the Hospital and the quality of care provided. AR 3350 (Policy §7.G.1(b)).

Whenever, in their sole discretion, failure to take such action may result in imminent danger to the health and/or safety of any individual, the MEC, or the Chief of Staff or the chair of a clinical department/service, acting in conjunction with the Chief Executive Officer (“CEO”) or CMO/VPMA[2], shall have the authority to (1) afford an individual an opportunity to voluntarily refrain from exercising privileges pending an investigation, or (2) suspend or restrict all or any portion of an individual's clinical privileges as a precaution. AR 7974 (Policy §6.D.1(a)). In the event no individuals or committees authorized to impose a summary suspension are available under the circumstances referenced above, the Board may impose a summary suspension, provided that attempts have first been made to contact the individuals listed above. AR 7974 (Policy §6.D.1(b)). A summary suspension imposed by the Board must be reviewed and ratified by the MEC within two working days of imposition, excluding weekends and holidays, or it shall terminate automatically. AR 7974 (Policy §6.D.1(a)).

Alternatively, whenever failure to take action may result in imminent danger to the health or safety of any individual, the MEC, the Chief of Staff, or the chair of a clinical department/service, acting in conjunction with the CMO/VPMA or the CEO, is authorized to suspend or restrict all or any portion of an individual’s clinical privileges pending an investigation. AR 3277 (Policy §10.E(1)). Any such suspension is effective immediately and will remain so unless modified by the MEC or CEO. AR 3277 (Policy §10.E(2)). The individual shall receive a brief written description of the reasons for the summary suspension within on working day. AR 3277 (Policy §10.E(3)). The MEC will review the reasons within a reasonable time given the circumstances, not to exceed 13 days. AR 3277 (Policy §10.E(4)). As part of or prior to this review, the individual will have an opportunity to meet with the MEC. AR 3277 (Policy §10.E(5)).

Aleman went to the Adventist school system beginning in high school. AR 1211. He graduated from Glendale Academy, went to La Sierra College, and attended medical school at Loma Linda for four years. AR 1211. He interned and completed a cardiology fellowship at Loma Linda’s sister hospital, White Memorial Medical Center. AR 1212. White Memorial did not have an interventional cardiology program and he completed that program at the Good Samaritan Hospital. AR 1212. During this fellowship program, Glendale Heart Institute invited him to join its practice. AR 1212.

Aleman received his privileges at the Hospital in 1990. AR 1212. He joined the rotation to read EKGs for the Hospital the same year and has read many EKGs from 1990 through March 13, 2020. AR 1213, 1215. He also reviews EKGs for every patient who sees him in his private practice. AR 1215. Aleman also has been on a Hospital panel to read echoes since 1991. AR 1217. When on rotation, he reads 20 echos a day. AR 1217. Aleman performed between 700 and 1,000 interventions in the three years before the events underlying this case. AR 1308.

Complaints about Aleman’s behavior with patients from October 2014 to April 2018 are reflected in Medical Staff Behavior Incident Report Forms, Peer Review Documents, patient complaints, and emails between coworkers. AR 3433-518.

At 11:12 a.m. on March 9, 2020, attending physician Sadrzadeh Rafie, M.D. (“Rafie”) asked Aleman to consult on Patient 1. AR 7445, 7976. The patient care order lists Hambartsoum Mekharian, M.D. (“Mekharian”) as Patient 1’s ordering physician with Aleman as consulting physician. AR 7618.

Patient 1complained of chest pain and a history of Wolff-Parkinson-White (“WPW”) syndrome. AR 7445. Aleman recommended evaluation in the Emergency Department (“ER”) and wanted a “stats echo.” AR 7445. At the time of the consultation, the Hospital did not consider Patient 1 a potential ST-elevation myocardial infarction (“STEMI”) patient. AR 252, 7445.

A troponin test at 11:11 a.m. yielded a result of 0.02 ng/mL. AR 7444. A second troponin test at 2:43 p.m. yielded a result of 0.62 ng/mL. AR 7436. As of 2:15 p.m., Patient 1 was still awaiting to see a cardiologist and warned staff that he may leave against medical advice. AR 7756. He promised to notify the nurses if he chose to do so. AR 7756.

Aleman made a report of his visit to the ER on March 13, 2020. AR 7976-80. In his report, Aleman stated that Patient 1 had a history of WPW and chest pain when he exercised. AR 7976. His symptoms had resolved while in the ER. AR 7976. When pressed why he came to the ER if he had similar experiences when he exercised, Patient 1 stated that he was an engineer, had read extensively about WPW, and was considering having an ablation done as recommended by a UCLA cardiologist. AR 7976. Aleman’s reported plan for Patient 1 was to discharge him and not engage in strenuous exercise. AR 7980. He should return to ER if symptoms change. AR 7980.

During a procedure on March 9, 2020, Patient 2’s blood pressure and oxygen levels began decreasing rapidly between 12:00 p.m. and 2:37 p.m. AR 7116-17. Staff asked anesthesiologist Tigran Sukiasyan, M.D. (“Sukiasyan”) to intubate him at 1:30 p.m., 1:40 p.m., and 1:43 p.m. AR 7121. The notes from that day do not show that Sukiasyan examined the patient. AR 7121, 7306. The timeline shows that Aleman attempted intubation of Patient 2 at 1:52 p.m. when Patient 2’s oxygen levels were 79%. AR 6888, 7301.

Itensivist[4] Deon Lau, M.D. (“Lau”) was called to the Cath Lab for emergent intubation. AR 8047. When Lau arrived, Patient 2 was being ventilated with an oral airway in place, but he was still breathing spontaneously. AR 8047. After induction, Lau successfully intubated Patient 2 in one attempt. AR 8047. His final report states that the Hospital did not obtain Patient 2’s consent for intubation because it was an emergency circumstance. AR 8047.

On January 23, 2020, at 10:12 a.m., Patient C was admitted to the Hospital. AR 4040. The admitting physician was Narine Arutyonunian, M.D. (“Arutyonunian”) and Aleman was a consulting physician. AR 4040. Aleman listed the chief complaint as “stemi LAD territory.” AR 4040. At 1:15 p.m., Aleman added a progress note that identified the post-procedure diagnosis as STEMI left anterior descending coronary (“LAD”), with “100% first diagonal, 80% proximal LAD, 60% circumfles.” AR 4057.

At 1:29 p.m., Shant Shirvanian, M.D. (“Shirvanian”) consulted for Patient C. AR 4046. Shirvanian noted in his consultation report that the EKG reflected anterior wall ischemia. AR 4046. Patient C was taken to the Cath Lab where she was noted to have left LAD disease. AR 4046. Shrvanian noted occlusion of the diagonal artery which Aleman told Shirvanian was unavoidable. AR 4046. Patient C had dissection of the LAD after placement of stent, but she developed a pericardial effusion and needed a pericardial drain. AR 4046. Patient C complained to Shirvanian of 9 out of 10 chest pains radiating to her back. AR 4046. Shirvanian discussed this with Aleman, who felt this was secondary to the pericardial drain. AR 4046.

At 8:54 p.m., Arutyounian consulted with a surgeon, Randall Roberts, M.D. (“Roberts”). AR 4051. Roberts stated in his report that Arutyounian asked Roberts to assist in the patient’s care. AR 4051-52.

On March 13, 2020, Chief of Staff Lukas Alexanian (“Alexanian”) gave Aleman written notice that he was suspended immediately from Hospital privileges. AR 7971-72. The suspension notice stated that, while providing ER coverage for his practice partner, Aleman told the ER physician, Arbi Ayvazian, M.D. (“Ayvazian”), that Patient 1 was “full of shit. Send him home.” AR 7971. The ER physician disagreed, and Patient 1 was admitted to the Hospital. AR 7971. Aleman’s partner later performed an interventional procedure that showed 90% occlusion and significant stenosis. AR 7971. Aleman also failed to document the encounter. AR 7971. Further, Aleman intubated Patient 2 even though he did not hold privileges to do so. AR 7971. This resulted in oral trauma. AR 7971.

Based on these two incidents, the notice stated that Alexanian had determined that the failure to suspend Aleman may result in an imminent danger to the health and safety of the Hospital’s patients. AR 7971. The MEC would meet on March 16, 2020 to review the suspension and decide whether it should continue. AR 7971. Alexanian invited Aleman to the MEC’s meeting to make a statement about the issues and provide any documents he wanted the MEC to consider. AR 7971-72.

On March 14, 2020, Lau emailed his account of the March 9, 2020 incident. AR 7981. By one nurse’s estimate, 20 minutes passed between the initial request for intubation of Patient 2 and the actual intubation. AR 7982. Lau asked staff for anesthesia and why no one had intubated the patient. AR 7982. The staff could not understand why anesthesia was necessary after intubation. AR 7982.

When Lau asked Sukiasyan where he had been, Sukiasyan claimed that he had been in another case at the time. AR 7982. Sukiasyan went into the Cath Lab briefly but could not help because of his own case. AR 7982. Sukiasyan claimed that he clearly stated that he was unavailable when he left the Cath Lab. AR 7982. The staff all agreed that no one realized he was not coming back. AR 7982.

Lau subsequently spoke to Sukiasyan again about the incident. AR 7982. Sukiasyan messaged Lau with the following information. He was with another patient at the time and agreed to check on Patient 2 because his own patient was stable. AR 7982. Sukiasyan discovered that it was not a “code” situation because Patient 2 was moving, had a heart rate and blood pressure present, and was breathing spontaneously. AR 7982. There was no anesthesia machine or ventilator in the room. AR 7982. Aleman and another doctor were in the middle of a procedure that involved radiation. AR 7982. When he asked if they could stop so he could have access to Patient 2’s airway, they responded that could not stop the radiation. AR 7982. Sukiasyan realized that intubation would take more time than he had anticipated, so he returned to care for his own patient and informed the team. AR 7982.

Lau acknowledged that Aleman considered it an emergent situation that required him to intubate when no one else was there to do it. AR 7982. However, the Hospital has protocols in place to call a RRT or Code Blue for such urgent or emergent situations. AR 7982. Because the patient was still conscious, Aleman subjected him to significant pain when Aleman intubated him without anesthesia. AR 7982. Patient 2 also was severely malpositioned on the Cath Lab table with his head fully off the table and physically held up by Aleman. AR 7982. This risked injury to the patient. Lau found trauma to Patient 2’s oral cavity, as evidenced by the significant amount of blood in the oropharynx that Lau observed during laryngoscopy. AR 7982.

In short, Aleman’s failed intubation attempt and failure to follow Hospital procedure resulted in a significant delay in patient care and direct patient harm to a critically ill patient. AR 7982.

On March 16, 2020, the MEC met to discuss Aleman’s suspension. AR 8043. Aleman attended and presented documents to the MEC. AR 8043.

For Patient 1, Aleman told the MEC that Rafie was on ER call for STEMI and cardiology that day. AR 8043. Aleman only went to the ER because Rafie asked him to assess whether it was a STEMI. AR 8043. Although the EKG was ominous, Patient 1’s WPW syndrome could mimic STEMI. AR 8043. He was doing strenuous activity and felt chest pain which had happened on previous occasions. AR 8043. Aleman noted that Patient 1 arrived at the ER on his own and not via ambulance. AR 8043. Aleman established from the data that Patient 1 did not have a myocardial infarction at the time. AR 8043.

Patient 1 refused admission, stating that he was an engineer and familiar with WPW and he previously refused an ablation because he did not want a pacemaker. AR 8043. Patient 1 told Aleman that all the cardiologists he had seen wanted to admit him, but he did not want to be admitted. AR 8044.

Aleman admitted that he used foul language concerning Patient 1 because he was frustrated about their conversation. AR 8044. He came and saw the patient when he did not have to do so. AR 8044. About two hours after he saw him, Patient 1 had an elevated second troponin test result. AR 8044. Rafie then saw Patient 1 and got him to agree to be admitted to the Hospital. AR 8044.

For Patient 2, Aleman had just finished in the ER with Patient 1 and he went to the Cath Lab. AR 8044. He saw staff rushing in and followed to find that Patient 2’s blood pressure was low. AR 8044. Aleman told the staff to call for intubation. AR 8044. When he arrived, Sukiasyan objected to the radiation and refused to wear a lead vest. AR 8044. Sukiasyan refused to help even after Aleman offered to stop the radiation and “break the table.” AR 8044.

Patient 2 was deteriorating, hypoxic, blue, and in cardiac shock. AR 8044. Aleman placed the oralpharyngeal tube, which can be difficult when the patient fights it. AR 8044-45. As he did so, he told staff to get anyone to come intubate Patient 2. AR 8045.

Aleman stated that he was not aware that he did not have intubation privileges. AR 8045. He has intubated hundreds of patients and has a lot of experience. AR 8045. Patient 2’s intubation was not elective. AR 8045. He was dying and Aleman tried to save his life. AR 8045. When the intensivist (Lau) asked why he did not call a RRT or Code Blue, Aleman insisted it was not his fault and he was trying to save a dying patient. AR 8045.

In their discussion, MEC members were concerned that Aleman was deflecting responsibility. AR 8045. There was concern that Aleman’s partners would cover for him rather than be honest. AR 8045. The incident with Patient 2 illustrated that Aleman did not appreciate the necessity of following Hospital protocols. AR 8045. The MEC voted to continue the suspension. AR 8045.

Chief of Staff Alexanian engaged John Laird, M.D. (“Laird”), Medical Director of the Health and Vascular Institute at Adventist Health St. Helena, to conduct an expedited review of the Patient 1 and Patient 2 cases. AR 7984, 7996.

Laird reviewed both cases and issued a report on March 17, 2020. AR 8059-62. Patient 1’s baseline EKG from the ER was markedly abnormal and consistent with acute myocardial infarction, which should have prompted emergent/urgent catheterization and coronary intervention. AR 8059. Discharge from the ER would have been inappropriate because of his chest pain during exertion, risk factors for atherosclerosis, abnormal baseline EKG, rise in troponin levels, and inferolateral hypokinesis on the echocardiogram. AR 8059. If Patient 1 had been discharged as Aleman recommended, there would have been a high risk of sudden cardiac death or delay in revascularization with significant myocardial damage and loss of function. AR 8059-60. Aleman exercised poor judgment when he recommended discharge. AR 8060.

Patient 2 was a high-risk patient in cardiogenic shock upon entry into the Cath Lab. AR 8062. He became hemodynamically unstable during the procedure and developed respiratory distress necessitating intubation. AR 8062. The decision to intubate the patient was medically necessary and appropriate. AR 8062. It was unclear why Sukiasyan was unwilling or unable to intubate Patient 2. AR 8062. Aleman unsuccessfully attempted intubation without intubation privileges and without calling a Code Blue or an RRT. AR 8062. When called, Lau successfully intubated Patient 2 within 15 minutes after Aleman’s attempt. AR 8062.

Because it was the middle of the day, it was unclear why Aleman did not call a Code Blue or RRT. AR 8062. Lau’s description suggests that the physicians should have performed ventilation with bag/mask pending intubation by a credentialed physician. AR 8062. Aleman’s intubation was not appropriate and did not meet the standard of care. AR 8062.

After the MEC continued his suspension on March 16, 2020, Aleman wrote to Chief of Staff Alexanian on an unstated date to request further consideration. AR 8081.

Aleman contended that Patient 1’s EKG and ischemic changes when he arrived were indicative of a tachycardia episode that would normalize without mechanical intervention to his coronary arteries or thrombolysis. AR 8082. He was a difficult patient. AR 8082. Aleman tried to explain to Patient 1that the ablation procedure to treat his condition had a low risk of requiring a pacemaker. AR 8082. Patient 1 remained argumentative and uncooperative. AR 8082. He insisted that Aleman was just trying to make him do more tests to admit him to the Hospital. AR 8082. Patient 1 was an engineer who had Googled WPW and did not want to be hospitalized now that he was chest-pain free. AR 8082.

The ER physician (Ayvazian) remained concerned. Aleman said he would ask Rafie to deal with Patient 1 later because he (Aleman) had not made any progress with him. AR 8082. Aleman told Ayvazian that Patient 1 was “full of shit” because he kept saying he was an engineer and knew everything about this. AR 8082.

When Rafie came to see Patient 1, there was an additional troponin of 0.6. AR 8082. The patient refused a cardiac catheterization. AR 8082. His wife was called to convince him to have an additional troponin, which came back elevated at 3. AR 8082. Coronary angiography did not reveal a thrombotic lesion. AR 8082. The doctors just treated an atherosclerotic plaque in the right coronary artery with a stent. AR 8082.

Patient 1 did not have a STEMI; he had a “NSTEMI” with a rising troponin level even without any further chest pain. AR 8082. A true STEMI would have resulted in a troponin level above 10. AR 8082. It is untrue that a different cardiologist was called to evaluate Patient 1 and that, without the insistence of the ER physician, he would have had a different outcome. AR 8082.

Aleman was finishing a different case when his partner asked for help with Patient 2’s difficult case. AR 8083. Patient 2 was in cardiogenic shock. AR 8083. When Sukiasyan was first asked to intubate the patient, he said he would be right back to do so. AR 8083. He returned ten minutes later and again said he would intubate Patient 2. AR 8083. Aleman paused the procedure to break the plane of the table, move an x-ray tube out of place, and let Sukiasyan intubate. AR 8083. Minutes later, while Aleman was having difficulty ventilating Patient 2, Sukiasyan was nowhere to be found. AR 8083. Aleman tried to intubate once and failed, so he ventilated Patient 2 until an intensivist arrived and intubated him. AR 8083-84.

Sukiasyan’s absence led to a 37-minute delay in intubation, and someone needs to ask him why. AR 8084. Aleman was not the operator for this case; he just came in to help and took desperate measures when the patient continued to decline. AR 8084. This meant that calling a Code Blue or a RRT was not his call. AR 8084. Lau also just presumed that the blood and oral trauma he saw when he arrived came from Aleman’s failed attempt. AR 8084.

On March 18, 2020, Sukiasyan submitted via a memo via email that he wrote on March 9 about Patient 2’s case. AR 8112. Sukiasyan stated that he was with another patient at the time and agreed to check on Patient 2 because his own patient was stable. AR 8112. Sukiasyan discovered that it was not a “code” situation because Patient 2 was moving, had a heart rate and blood pressure present, and was breathing spontaneously. AR 8112. Aleman and another doctor were in the middle of a procedure that involved radiation and claimed they could not stop for Sukiasyan to examine Patient 2’s airway. AR 8112. Sukiasyan realized that intubation would take more time than he thought, so he left to care for his own patient and informed the team. AR 8112.

On March 24, 2020, the MEC met to consider Laird’s report, Aleman’s letter, and other documents. AR 8095. The ER physician (Ayvazian) in charge of Patient 1 stated that he visited the patient and his family in his Hospital room on the next day, March 10, 2020. AR 8095. Patient 1’s wife stated that if the family had listened to Aleman, Patient 1 would have gone home. AR 8095.

The MEC members agreed with Laird that Patient 1 was having an acute myocardial infarction and would have died if he was discharged. AR 8095. There is no doubt that Aleman made a mistake and did not manage the patient based on the standard of care. AR 8095. He does not seem to have the same standard of care as other STEMI panel physicians. AR 8095.

For Patient 2, the MEC agreed with Laird that it was improper for Aleman to try intubation when he could have called a RRT or a Code Blue. AR 8095.

The MEC agreed that these issues raised concerns of a pattern within Aleman’s practice. AR 8095. To protect patients, the MEC voted to continue the summary suspension until it received Laird’s external review for five of Aleman’s other cases. AR 8096.

Alexanian informed Aleman of the MEC’s decision in a letter dated the same day. AR 8126-27. He explained that because the suspension was now in effect for more than 14 days total and the Hospital would report it to the Medical Board. AR 8127. If the summary suspension exceeded 30 days, it would also be reported to the National Practitioner Data Bank. AR 8127.

On March 31, 2020, Laird responded to Aleman’s undated written comments about Laird’s March 17, 2020 report. AR 8149. Laird conceded that much of his criticism was based on the fact that Aleman instructed the ER physician (Ayvazian) that Patient 1 could be discharged, and that the ER physician disagreed and asked another cardiologist to see the patient. AR 8149. This was at odds with Aleman’s narrative of a patient who insisted on going home. AR 8149. A statement from Ayvazian might provide clarity. AR 8149.

Nevertheless, Aleman was wrong to conclude that the EKG changes and symptoms were all related to a tachycardia episode. AR 8149. The patient’s other symptoms were consistent with inferoposterior STEMI. AR 8149. Troponin levels simply may not have risen enough by the time of the tests. AR 8149. Patient 1 needed urgent cardiac catheterization. AR 8149.

Laird maintained that Aleman’s attempted intubation of Patient 2 was inappropriate, but he sympathized with the frustration of not being the primary operator on the case and having confusion whether Sukiasyan would return. AR 8149.

On April 7, 2020, Laird submitted a FPPE report for five coronary interventions that Aleman had performed. AR 8176. In two of these cases, Laird found important quality issues regarding physician judgment and procedural technique that contributed to the poor outcomes. AR 8176.

For Patient C (6063435), Aleman tried and failed to treat the diagonal branch artery that was infarcted. AR 8181. He then chose to treat the mid left anterior descending coronary artery, which had no signs of infarction. AR 8181. He used an oversized balloon and stent compared to the vessel diameter. AR 8181. This caused Patient C to become hemodynamically unstable, and Aleman drained 250 mL of bodily fluid via pericardiocentesis. AR 8181. After the Hospital transferred Patient C to the ICU, her EKG showed drastically different results consistent with LAD territory acute infarction. AR 8181. She died later that evening. AR 8181.

Laird opined that Aleman committed numerous lapses in judgment. AR 8181. He misidentified the infarct related artery and performed a complicated intervention after attempts to treat the diagonal artery failed. AR 8181-82. The oversized balloon and stent led to a coronary perforation, which in turn led to an avoidable death caused by poor decision-making. AR 8182.

On November 13, 2019, Aleman took Patient D (MR 6180258) to the Cath Lab. AR 3582, 8180. Aleman treated Patient D’s RCA and LAD stenosis with balloon angioplasty and a drug eluting stent. AR 8180. Previous stents had led to a focal, calcified lesion that Aleman treated with rotational atherectomy, balloon angioplasty, and additional stents. AR 8180.

It appeared that Aleman did not at first realize that a coronary perforation had occurred. AR 8180. When Aleman did, he did not use a covered stent because he assumed it was septum and not free wall perforation. AR 8180. Patient D later complained of chest pain. AR 8180. Angiography continued to show evidence of perforation with pseudoaneurysm formation because the perforation did not completely seal. AR 8180.

Laird concluded that, while coronary perforation was an accepted complication, whether the rotational atherectomy was necessary is unclear. AR 8180. Aleman treated a less severely diseased portion of the LAD that might not have needed intervention. AR 8180. Aleman then failed to recognize perforation in this section and used a bare metal stent when he did, which exacerbated the problem. AR 8180.

On April 8, 2020, the MEC informed Aleman that it would have a meeting the next day to discuss all seven cases Laird reviewed and whether Aleman’s suspension should continue. AR 8185.

At the meeting, there was a robust discussion of a pattern of substandard care and behavior issues. AR 8190. MEC members noted that Aleman was already on an FPPE when he had the poor outcomes for Patients 1 and 2. AR 8190. Members further noted that Aleman is a bully and therefore previous attempts at review of his care failed because other physicians were scared of retaliation. AR 8190. Aleman has a history of poor quality and behavior for many years that the MEC tried to help correct to no avail. AR 8190.

Aleman claimed that Patient D’s case was STEMI, and he had no other options. AR 8191. He identified and fixed the perforation immediately and called a surgeon, Roberts, who did not believe Patient D was a good candidate for surgery. AR 8191. Patient D died of arrhythmia and Aleman downplayed the effect of the perforation. AR 8191. He added that, if this were an elective case, he would not have attempted intervention and would have called the surgeon. AR 8191.

After Aleman left, Roberts -- who was present at the meeting -- stated that Aleman had not been truthful. AR 8191. Aleman did not call Roberts in Patient D’s case. AR 8191. Rather, the attending physician called Roberts, expressed concern for the patient, and asked for a surgical consult. AR 8191. Roberts then called Aleman. Hence, the only reason Roberts was involved was because of the concerns of others, not Aleman. AR 8191.

Roberts also stated that he told Aleman to come back to the ER to evaluate Patient D because he was having significant pain, but Aleman was reluctant to do so. AR 8191. Another MEC member indicated that he was called by the intensivist who was concerned about the patient’s severe pain. That member called Aleman, who stated that he did not need to come back to evaluate the patient. AR 8191. MEC members felt that this reflected a pattern in which Aleman was dishonest and would not take accountability for cases. AR 8191.

Based on the cases of Patient 1, Patient 2, Patient C, and Patient D, the MEC voted both to continue the suspension and to recommend revocation of Aleman’s Hospital privileges and membership. AR 8191. The next day, Alexanian informed Aleman of the MEC’s decision and his right to appeal. AR 8207-08.

On April 14, 2020, Aleman appealed his suspension and the MEC’s recommendation to revoke his privileges and membership. AR 8221-22. On May 28, 2020, Alexanian sent Aleman a formal Statement of Reasons and Notice of Hearing (“Charges”). AR 8239.

The Charges alleged that the Hospital had received numerous complaints about both the quality of Aleman’s care and unprofessional behavior since he joined in 1991. AR 8239. Efforts to remedy this behavior have failed. AR 8239. The MEC launched a FPPE in March 2020 and the incidents with Patient 1 and Patient 2 occurred during this review. AR 8240.

For Patient 1, the Charges alleged that Aleman violated (1) Policy section 2.B.l(a) (continuous and timely care to all patients) for his failure to identify a myocardial infarction, (2) Policy section 2.B.l(t) (cooperative and professional conduct) for saying that Patient 1 was “full of shit, send him home”, and (3) Policy section 2.B.l(q) (timely completion of required records) because Aleman failed to make a timely note in Patient 1’s medical record. AR 8241-42.

For Patient 2, the Charges alleged that Aleman violated (1) Policy section 2.B.l(a) (to abide by all bylaws and rules and regulations in force) because Aleman intubated Patient 2 without credentials instead of calling a Code Blue or a RRT and (2) Policy section 4.A.l(a) for exercising a clinical privilege he did not have. AR 8242.

For Patient C, the Charges alleged that Aleman violated Policy section B.l(a) (continuous and timely care to all patients) for use of an unnecessary rotational atherectomy in the wrong vessel, which caused a perforation Aleman did not timely recognize. AR 8243-44.

For Patient D, the Charges alleged that Aleman violated (1) Policy section 2.B.l(a) (continuous and timely care to all patients) for failure to identify the infarct-related artery and for use of a complicated intervention on a different artery that led to coronary rupture, and (2) Policy section 2.B.l(p) for failure to seek consultation whenever required or necessary. AR 8243.

When combined with Aleman’s poor history and responses that demonstrate poor insight about how he could have proceeded, these facts led the MEC to suspend Aleman’s privileges and recommend revocation. AR 8244.

The Hearing Panel heard Aleman’s appeal in 16 sessions between November 2020 and April 2021. The pertinent testimony in part is as follows.

On March 13, 2020, Alexanian received a phone call from Harlan Gibbs, M.D. (“Gibbs”), ER physician and former chief of staff. AR 157. Gibbs told him about Patient 1’s case and said that people’s lives were on the line. AR 157. Gibbs claimed that there was no way to confuse what Patient 1’s grossly abnormal EKG meant – which was an acute myocardial infarction -- as Aleman had done. AR 157-58. Aleman told Patient 1 that the ER doctor did not know what he was doing and to go home. AR 158. The ER physician (Ayvazian) chased Aleman and asked what was going on with Patient 1. AR 158. Aleman replied that Patient 1 was full of shit and should be sent home. AR 158.[5]

Alexanian thought that he checked the EKG himself but was not sure. AR 218. He assumed Gibbs did before calling him. AR 218.

Alexanian called Ayvazian, who confirmed Gibbs’ narrative. AR 158, 219. Ayvazian also said there was no doubt in his mind that Patient 1’s EKG reflected an acute cardiac event. AR 252.

Alexanian then spoke with Medical Staff Director Rachel Van Houten (“Van Houten”), who told Alexanian about Patient 2’s case. AR 159-60. Alexanian does not remember if he asked how Van Houten knew about the case. AR 219.

Alexanian needed to hear Aleman’s side on both cases. AR 159. He prepared a written notice of suspension which he had ready when he met with Aleman that day, but he had not decided whether to use it because Van Houten and Gibbs’ information could have been incorrect. AR 220-21. Alexanian and Aleman spoke for half an hour with Van Houten present. AR 222. Neither party brought the patient medical records to the meeting. AR 222.

Once Alexanian spoke to Aleman, he decided that Aleman should not practice in the Hospital until the Medical Staff knew more about what happened. AR 159-61. Alexanian decided to invoke a summary suspension. AR 160. He felt the suspension was necessary to protect against imminent harm to patients until the Medical Staff assessed the situation and whether it could happen again with possible grave consequences. AR 161.

Alexanian hired Laird to conduct an external expert review and determine if summary suspension was reasonable. AR 162. He asked that review of the five older cases be expedited so the MEC could consider them with the Patient 1 and Patient 2 cases. AR 1786. He notified Aleman of the MEC’s decision to keep the summary suspension in place until this review was complete. AR 1786-87.

At its April 9, 2020 meeting, the MEC considered Aleman’s promise to attend courses. AR 183. It determined that this proposal was not adequate to address issues of competency and judgment. AR 183. The MEC also considered Aleman’s reputation as a bully and how it has caused previous attempts at retrospective review to fail. AR 184. The MEC was disappointed that the behavior continued after multiple attempts to fix it, as well as with Aleman’s attitude towards the cases at issue. AR 184.

For Patient D, Roberts claimed that he asked a reluctant Aleman to come to the ICU to evaluate him. AR 186. The intensivist (Shirvanian) directly contacted another MEC member (Roberts) with concerns over Patient D’s chest pain. AR 186. The MEC felt that Aleman was dishonest in his summary of that case. AR 186-87. This meant that he was unlikely to change because he refused to admit he had a problem. AR 187. The MEC voted to continue the suspension and revoke Aleman’s Hospital privileges and membership. AR 187.

When Ayvazian first spoke to Patient 1 on March 9, 2020, the patient explained he was on a Peloton bike when he developed chest pain. AR 257. During this conversation, Patient 1’s wife mentioned that he has WPW and that whenever ER doctors see his EKG they worry about it. AR 257. WPW is an electrical conduction abnormality of the heart that can lead to fatal dysrhythmias, shown on EKGs by a short up-sloping PR interval. AR 257. Ayvazian explained that WPW was not the issue if Patient 1 was suffering chest pain. AR 257. This calmed the patient down. AR 257.

He spoke with Rafie, who was on call for STEMI. AR 1393. Rafie said he could not come but would call Aleman. AR 1393. Ayvazian denied that he asked Aleman to see Patient 1 in the ER to stop him from leaving. AR 1393.

Ayvazian wanted Patient 1 to be admitted to the Hospital, but Aleman’s interaction with the patient made it more difficult to convince him. AR 262. Ayvazian went back to evaluate Patient 1, who was by then pain free after receiving medications. AR 262. Patient 1 asked why he should stay if the cardiologist said he could go home. AR 262. Ayvazian was not in the room and did not hear what Aleman said to the patient, but whatever Aleman said reassured the patient that he could go home. AR 262. He spent close to an hour persuading Patient 1 not to go home. AR 263.

Ayvazian may have told Van Houten a few days later that Aleman talked to Patient 1 for five minutes; he could not remember. AR 272. Ayvazian spent an hour after Aleman left convincing Patient 1 to take a second troponin test at 2:49 p.m. AR 1392-1393. Aleman did not return to the ER to see the EKG or the second troponin results. AR 1393.

In an emergency setting, it is beneficial to review any available medical records from a patient’s prior visits. AR 274. Ayvazian does not know if Aleman reviewed the records for Patient 1. AR 274.

Ayvazian never reviewed any notes from Mekharian on Patient 1. AR 275. Ayvazian’s notes reflect that he spoke with Aleman but do not reflect that Aleman recommended Patient 1’s discharge. AR 279.

On March 9, Sukiasyan was providing anesthesia in the Cath Lab when Nurse Yi Shen (“Yi”) asked for his help intubating a patient in the lab next door. AR 352. Sukiasyan said he could not help because he was in the middle of a case. AR 352, 802, 810. Yi came a second time and, because his patient had settled down, Sukiasyan agreed to take a look. AR 352. Sukiasyan assumed it was a Code Blue, that he just needed to intubate Patient 2, and that he would be away from his own patient for no more than 15 seconds. AR 352-53.

When Sukiasyan arrived, he saw that there was no anesthesia machine or ventilator, Patient 2 was breathing spontaneously, a procedure was underway with a fluoroscope overhead, and vital signs were stable. AR 353. It was not a Code Blue. AR 353. Sukiasyan said that if he was going to intubate Patient 2, he needed an anesthesia machine and ventilator. AR 354. He asked the doctors if they could move the fluoroscope so that he could evaluate Patient 2’s airways. AR 354. Either Aleman, Amir Solhpour, M.D. (“Solhpour”), or both replied they could not stop the procedure. AR 354, 900.

Sukiasyan realized that the intubation would take longer than he thought and announced as he was leaving that he could not stay. AR 354. He had a detailed discussion with Yi on the way out, who said that it was okay if he could not intubate Patient 2; he just needed to let her know so she could find someone else. AR 354.

Lau’s decision to write an email memo of the Patient 2 case is not his normal practice. AR 422.

Oral trauma is easy to cause by accident during intubation. AR 422. While Lau intubated Patient 2, he observed blood in the posterior pharynx. AR 422. Lau did not look closely for the source of the blood or the trauma, but he thought this was from Aleman’s intubation attempt without drugs. AR 422.

Roberts was the surgeon who talked to Aleman about Patient D’s case. AR 532. Aleman did not call Roberts. AR 535. The intensivist, Shirvanian, called Roberts to see Patient C at 5:00 p.m. on January 23, 2020. AR 532, 534. Roberts arrived within 30 minutes and examined her. AR 534.

Roberts called Aleman at 6:00 p.m. AR 535. It was clear that Aleman had not seen the patient in the ICU. AR 535. He had to persuade Aleman that it was very important to evaluate Patient C at her bedside in the ICU because she was not doing well. AR 535.

Serineh Melidonian, M.D. (“Melidonian”) is on the MEC. AR 526, 556. The possibility that Aleman was dishonest in his presentation to it, based on Roberts’ claims, was a big deal. AR 578. It was an important factor behind the MEC’s decision to terminate Aleman’s privileges. AR 578-79. Even if it was proved that Roberts was dishonest and Aleman was correct, Melidonian would have enough concern about the other issues to recommend the suspension. AR 579.

The imaging of Patient C’s procedure shows signs of contrast stain development not visible to the untrained eye. AR 619, 674, 678. To a trained eye, this would suggest that there’s probably some contrast outside the artery that indicates perforation of the left anterior descending coronary artery. AR 678. Laird guessed that Aleman did not recognize the perforation because he then began (1) stenting an area proximal to the previous stenosis area, and (2) an angioplasty with a large balloon. AR 678.

Laird first said that whether the standard of care required a covered stent instead of a bare metal stent was a judgment call when the perforation was contained. AR 684. Laird then said that, based on angiographic views, he did not think the perforation was contained in the septum. AR 685. Laird admitted that he did not see the ultrasound that Aleman performed, even though that would have shown him the degree of calcification. AR 1442.

For Patient D, Laird criticized Aleman’s failure to identify which artery was infarcted. AR 710. He opined that Aleman thought that the infarct was in the LAD and not the left diagonal artery. AR 710. Aleman’s decision to try to treat the left diagonal artery first may suggest he did identify the correct artery. AR 712. But Aleman’s report said “LAD territory infarct,” which does not include the diagonal artery. AR 714-15.

Robert’s comments contradicting Aleman’s version for Patient D made Aleman look dishonest and contributed to the MEC’s vote at the April 9, 2020 meeting. AR 775-76. Aleman stated his case and hung up, and Roberts said: “That is not how it happened.” AR 776. Gibbs does not know if Aleman knew Roberts was in the meeting or was the consulting surgeon for Patient D’s case. AR 776.

Yi came in to help with Patient 2 at 1:24 p.m. on March 9, 2020. AR 810. She noticed his vital signs were unstable, including dropping blood pressure and oxygen levels. AR 810. When oxygen levels reached the 70s, Solhpour asked if someone could intubate the patient. AR 810.

Yi went to get Sukiasyan from a control room which is in the middle of the Cath Lab. AR 811-12. Sukiasyan did not have his lead apron on, which suggested that he was not in a procedure. AR 812, 839. Yi asked him if he could help, noting that Patient 2 was STEMI. AR 811-12. Sukiasyan agreed but said he needed a few minutes before he could come take a look. AR 812.

Yi went back to the procedure room and tried to stabilize the patient. AR 812. Someone on the team should have noted on the Cath Lab log that Sukiasyan agreed to come, but Yi was certain that he did agree. AR 840-41.

Aleman scrubbed in at 1:35 p.m. AR 812. Someone also paged “RT” to bring a ventilator to prepare for intubation. AR 814. Yi then went to the control room a second time to ask Sukiasyan to intubate Patient 2. AR 814, 816. Sukiasyan said he would come, so Yi told the team as much. AR 814, 816.

The ventilator arrived at 1:39 p.m. AR 814. Solhpour asked why no one was there to intubate the patient. AR 843. Yi then left a third time to get Sukiasyan, who again agreed to intubate, and he followed her. AR 843. Yi does not remember if Sukiasyan walked into the procedure room. AR 817, 844. He did stick his head in to ask if they could stop the radiation. AR 844. Solhpour said no because he was implementing an Impella device. AR 818, 843.

Yi did not believe Sukiasyan said he could not intubate the patient or that they needed to find someone else. She would have found someone else if he said this. AR 818-19. The entire team believed he was coming back to intubate Patient 2. AR 819, 844-45.

A patient’s oxygen level should usually be above 91-92%. AR 911. Patient 2’s levels became a concern when at 1:11 p.m. he had six consecutive readings the declined from the 80s to the 70s. AR 911-12.

Hospital Cardiology Peer Review uses red flags during a procedure to identify which cases to send to reviewers. AR 958. If the reviewer decides a case should go to committee for review, all cardiologists review the case. AR 958. Aleman, Rafie, and Solhpour have complained that the treatment of which cases go to peer review is disproportionate for their group. AR 958-59. These three cardiologists have met with Medical Staff administration to discuss their concern multiple times. AR 959-60. Aleman suggested that the reason for disproportionate review was that Dr. Balian, M.D. (“Balian”) had been the Chairman of Cardiology for too long. AR 960. Alexanian replied that they could not change the Cardiology chairman in the middle of the two-year term. AR 960-61.

For Patient D, Aleman told Solhpour that he talked to Roberts over the phone. AR 987. Aleman wrote a note for a surgical consult the next morning in the medical record. AR 987. When questioned why Aleman would do so if he had spoken to the surgeon the night before, Solhpour testified that this is not uncommon. AR 988.

Michael Lee, M.D., was Aleman’s expert. When working with a patient like Patient 1, the cardiologist should look at past EKGs as a baseline. AR 1020. Patient 1’s 2020 and 2018 EKGs were identical, which did not suggest STEMI. AR 1026-27. The patient also could not have had a STEMI because his chest pain faded by the time Aleman examined him. AR 1023-24. The delta between the first and second troponin further was not consistent with STEMI. AR 1025. Thus, there was no need to refer Patient 1 emergently to the Cath Lab; he could have waited up to 24 hours. AR 1025, 1031.

Lee reviewed the Laird March 2020 report, and he could not confirm that Laird saw the EKG from 2018. AR 1008, 1021. If he did, Laird should have ruled out STEMI. AR 1027.

Patient 2 needed emergent intubation because he was in cardiogenic shock with an acute coronary syndrome. AR 1033. The airway must be protected to ensure that the patient does not stop breathing and go into cardiac arrest. AR 1033. Lee has seen this situation 30-40 times and knows that even if blood is flying around, a physician must do what it takes to help the patient. AR 1034. Even with successful intubation, there is a good chance the patient will die. AR 1037. Lee is not certified in intubation, but he would have done it if he were present. AR 1041.

If intubation is needed in the Cath Lab, the physician should call an anesthesiologist. AR 1037. Code Blues are for different situations, like when someone is on the floor. AR 1037. Patient 2 was on several anticoagulants, and it is no surprise that he had blood in his oropharynx after intubation. AR 1040-41.

For Patient C, the 3.5-millimeter stent Aleman used is the appropriate size for most patients with proximal LAD disease. AR 1051. Perforation does not indicate the physician mishandled the procedure because it is a known complication. AR 1052.

For Patient D, Lee has performed 400-500 atherectomies and has published more on this in the last five years than anyone else. AR 1055. Aleman used intravascular imaging to confirm high deposits of coronary calcium. AR 1056. An atherectomy was necessary to ensure that the stent is in the proper place to fully expand and avoid stent thrombosis. AR 1056.

Covered stents raise two concerns – stent restonisis and stent thrombosis. AR 1057. Stent thrombosis can lead to acute myocardial infarction or death. AR 1057. The decision to use a more conservative balloon tamponade was the recommended first step for anyone with a perforation or contained rupture. AR 1058. The physician should then wait and stabilize the patient before determining whether the patient needs additional therapy to seal the perforation. AR 1061. Aleman did not see any ongoing extravasation of contrast material into the pericardium. AR 1061.

Whenever the ER declare a STEMI, the cardiologist should get there in 30 minutes. AR 1119. A patient complaining of chest pain in the ER should receive an EKG as soon as possible, ideally five minutes. AR 1119.

The ER attending physician, Ayvazian, called him regarding his concern about Patient 1’s EKG because Rafie was the STEMI attending for the day. AR 1126. After Rafie decided to cancel the STEMI activation for Patient 1, he was in the clinic and asked Aleman to see Patient 1. AR 1126.

Aleman returned to the clinic and told Rafie that the second troponin test yielded a result of 0.62 at 2:43 p.m. AR 1127. Rafie went to the ER around 3:00 p.m. and discussed non-STEMI treatment options with Patient 1. AR 1127. Patient 1 was refusing to stay in the hospital because he no longer had chest pain and his symptoms were akin to WPW syndrome flare-ups. AR 1127. Rafie called Patient 1’s wife to get him to agree to stay for another troponin test to guide future treatment. AR 1127. The physicians then regrouped and discussed how to redistribute the work. AR 1132. Aleman’s involvement was part of a team effort. AR 1132. Because of Aleman’s request for a timely follow-up on Patient 1’s condition, their group redistributed its focus to this patient and saw him again within a few hours. AR 1132.

Rafie believed that the cardiology peer review was not conducted fairly in this case. AR 1161. It is easy to use a complication to make it look like the physician is responsible for the death and is the worst person on the planet. AR 1162-63. Aleman’s cases have been presented to the Peer Review Committee more than any other doctor at the Hospital, and Rafie’s cases have been the second most presented. AR 1166. He, Aleman, and Solhpour met with Alexanian and Van Houten to discuss this issue, and the voting system unfairly permits a doctor to be outnumbered by doctors who dislike each other to say something false. AR 1166-67.

At one Peer Review Committee meeting, Balian tried to pass a motion that would make every second operator of a TAVR[6] to be someone hired by Edwards Pharmaceuticals. AR 1223. Aleman objected that this would put money in Balian’s pocket, increase the number of employees loyal to him, and set him up to become the next structural heart disease director. AR 1223-24.

Decisions like these led Aleman to request a meeting with the MEC executives, which occurred in January or February 2019. AR 1224-25. At the meeting, he (Aleman) complained that there are too many problems in the peer review process. AR 1224.

Aleman was working in the Cath Lab on March 9, 2020 when he saw many people go into the room where Solhpour treated Patient 2. AR 1242, 1270. Aleman went in to help him as his partner. AR 1242, 1270. At the same time, Rafie called Aleman to ask him to eyeball Patient 1. AR 1242.

While Solhpour struggled to open Patient 2’s coronary artery, Ayvazian called Aleman and asked him to talk to Patient 1 and stop him from leaving against medical advice. AR 1244-45. He went down to the ER, waived hello at Ayvazian, and went to talk to Patient 1. He reviewed Patient 1’s test results for the last ten years, including two EKGs and several rhythm strips in 2018. AR 1245. He introduced himself to Patient 1. AR 1249. At this point, Patient 1 had his hands behind his head, had his legs crossed, was relaxed, and said he felt fine. AR 1249. When Aleman tried to draw attention to his abnormal EKG, Patient 1 responded that he knew all about WPW because he was an engineer that researched it. AR 1249. He accused Aleman of making the same mistake as his other doctors; they all want to admit him to the hospital the moment they see his EKG. AR 1249.

Patient 1 explained that the pain began when he was working out on an exercise bike. AR 1250. This had happened before, but it always went away after some rest or when Patient 1 slowed down. AR 1250. Aleman said that Patient 1could be having atrial fibrillation, ventricular tachycardia, or some kind of arrythmia. AR 1250. Patient 1 said that Aleman was treating him like a ten-year old. AR 1250. Aleman explained that he was not doing so, but Patient 1 needed to understand that WPW did not protect him from other life-threatening events. AR 1250. Patient 1 stated that he expected he would have chest pain if it was a heart attack. AR 1250. Aleman explained that symptoms change, especially since Patient 1 was on medication. AR 1250.

Aleman explained that he wanted Patient 1 to stay so the Hospital could confirm he had no malignant arrhythmias, through a treadmill stress test if necessary. AR 1250-51. Patient 1 insisted that he did not want to stay and asked why the ER physician could not tell him this. AR 1251. Aleman explained that, as a cardiologist, he reads more EKGs and that was why he was in the ER meeting with Patient 1. AR 1251.

Patient 1 said that he did not want a study or to ablate his artery because he would need a pacemaker. AR 1251. Aleman said pacemakers are not that bad and would not keep him from exercise or other activities, but Patient 1 insisted that he did not want one. AR 1251. Aleman felt that he was not making progress. AR 1251. He also knew that this was Rafie’s patient. AR 1252.[7]

On his way to the doctor’s lounge, Aleman heard Ayvazian call him from behind. AR 1255. Aleman explained that he could not get Patient 1 to stay and would let Rafie try. AR 1255. Ayvazian asked what Aleman thought of Patient 1. AR 1255. Aleman replied that Patient 1 was “full of shit” because he kept saying he knew all about WPW and was an engineer. AR 1255. Ayvazian replied that Patient 1 is educated. Alleman clarified that the issue was that Patient 1 thought he knew everything about his disease when he did not. AR 1255-56. Aleman never said that Ayvazian should discharge Patient 1. AR 1256.

There is only so much someone can do when the patient is saying they do not have symptoms, feel fine, want to leave, and do not think that the physician will say anything new. AR 1269. While they have harped on the fact that he did not prepare a timely note in the medical record, Aleman said he should have just written a freelance note. AR 1269.

Solhpour confirmed that he needed help with Patient 2 when Aleman asked. AR 1271. The table that Patient 2 was on is shaped like a human body with a gel pad on the head. AR 1271. If the patient is having trouble breathing, as here, a nurse will prop the head up with a pillow. AR 1272. That is what happened for Patient 2. AR 1272.

The color of his extremities made it clear that Patient 2 was in respiratory distress. AR 1274. His oxygen levels showed that he was not being oxygenated appropriately. AR 1274. Although Patient 2 was receiving oxygen from a mask, it was not working. AR 1275. He had diabetic ketoacidosis and was on three pressor agents, yet they still could not get his blood pressure to rise. AR 1275-76. This was a clear sign of deterioration that had to be addressed. AR 1276.

Aleman and Solhpour broke the table to allow Sukiasyan to come in and intubate the patient. AR 1279. While they waited for the anesthesiologist, Aleman checked the patient’s airway and discovered his dentures had fallen out. AR 1281. By this point, Patient 2 was only breathing to the extent that a fish will breath on dry land will before death. AR 1282. Patient 2 was not conscious because he would have fought when Aleman opened his mouth or when he attempted to intubate him. AR 1283.

Aleman only tried to intubate Patient 2 because no one knew where Sukiasyan was. AR 1284. He also asked the team to call ER, call an intensivist, or call anyone that could intubate Patient 2. AR 1285. Aleman felt that they could not wait for one to arrive because the delay could lead to brain hypoxia. AR 1285. Aleman also felt that he knew how to intubate. AR 1286.

Aleman only tried to intubate Patient 2 once. AR 1826. Lau arrived before he tried again. AR 1286.

Although anyone can call a Code Blue, all orders are channeled through the chief operator, which would have been Solhpour. AR 1292. That would be his call. AR 1292. The situation also did not merit a Code Blue. AR 1292-93. Per Hospital policy, a Code Blue is not appropriate where a physician(s) and full supportive staff are present. AR 1293.

Aleman was the STEMI physician on call when the paramedics called and said they were bringing in Patient C, who they thought was a STEMI. AR 1312. Aleman’s note refers to the LAD territory, but he wrote it to reflect where the STEMI seemed to be and where he used a guiding catheter. AR 1315. He was not suggesting that the EKG points only to the LAD. AR 1315. Whether he was intervening on the diagonal or the LAD itself, he was going to use a guide for the left system. AR 1315. His report also said that the diagonal branch was 100% occluded and the infarction warranted an attempt to recanalize it but for the prohibitive amounts of calcification. AR 1321.

Aleman attempted six interventions. AR 1316. The first was a 2.5 by 20-millimeter balloon in the diagonal artery. AR 1316. The second was an attempt to get the balloon past where it went on the first intervention, also in the diagonal artery. AR 1316. The third was an attempt to get the balloon past the stenosis in the diagonal artery. AR 1316. The fourth was a 1.5 by 15-millimeter balloon for the diagonal branch, designed for difficult cases. AR 1316. The fifth was a smaller wiggle wire for the diagonal branch. AR 1317. The final intervention would have used a larger size guide, but by then the balloons and catheters from prior interventions made it impossible to cross the diagonal artery again. AR 1317-18. The disease in the left anterior descending was also significant. AR 1318.

Aleman decided to perform a rotational atherectomy to break down the calcified plaque in order to place a stent of the correct size. AR 1322. He then placed a stent inside the vessel. AR 1323. The first stent he used was a non-covered drug-eluding stent instead of a pure metal stent, because a covered stent can lead to sudden cardiac death if it fails. AR 1323-24. When the non-covered drug-eluding stent failed after five minutes, he used a covered stent. AR 1325. Ultrasound confirmed that this sealed the puncture. AR 1326. Aleman then notified the intensivist and gave an update on the patient’s condition and further treatment. AR 1326.

Aleman did not want Roberts performing a surgical consult because his mortality rates in 2014 and 2015 were 10% and 7%, respectively, which was unacceptably high for Aleman’s patients. AR 1332. Nonetheless, at 7:06 p.m., he placed an order for Roberts to consult. AR 1332-33. He then called the ICU and said he was calling for a surgical consult from Roberts, who was there. AR 1333. Aleman explained to Roberts that Patient C came with a STEMI and calcified LAD and Aleman had tried to do an atherectomy and stent and she had a perforation. AR 1334. Contrary to Roberts’ testimony, he never flagged down or called Aleman about this case. AR 1334.

Patient D had an unstable angina picture and was ischemic. AR 1335. Another doctor had placed a stent years before that led to total occlusion of the LAD. AR 1335. Aleman performed an ultrasound that revealed the extent of the calcium buildup and the under-deployed nature of the stent. AR 1338. Aleman is not sure that Laird saw the ultrasound. AR 1338.

Aleman performed a rotational atherectomy in response to the prohibitive amount of calcium so that he could deploy the correctly sized stent. AR 1338. Aleman then ballooned, dilated, and stented the diseased part of the vessel. AR 1339. Aleman used an injection to confirm the results of the procedure. AR 1340. It identified a pinpoint puncture in the proximal part of the vessel, which likely resulted from expansion of the stent into the calcified wall. AR 1340. The first stent did not work because Patient D had chest pain 30 minutes later. AR 1342. Aleman replaced it with a covered stent, which fixed the perforation, and the patient was sent home. AR 1342.

On September 3, 2021, the Hearing Panel issued its decision. AR 8539-66. The Hearing Panel concluded that the MEC’s summary suspension, and continuation of the summary suspension, was reasonable based on the information available at the time, including reports of serious clinical and behavioral concerns as well as criticisms expressed in outside expert reviews. AR 8539. The MEC reasonably believed in good faith during March and April 2020 that Aleman’s privileges should be summarily suspended as a danger to patients. AR 8539.

The Hearing Panel also decided that the MEC’s recommendation that Aleman’s privileges be terminated was not reasonable nor warranted. There was conflicting testimony about the events involving Patients 1 and 2 which the Hearing Panel found insufficient to support further adverse action. Coupled with Aleman’s decades-long service to the Hospital, its patients, and the community, and his willingness to undertake actions to address the peer review concerns, termination was not warranted. AR 8539. In lieu of termination, the Hearing Panel recommended the incremental restoration of Aleman’s privileges with conditions of proctoring and courses and/or programs designed to address concerns. AR 8539.

Although Aleman had some conduct issues in the seven years before the incidents that led to this proceeding, he had been a Medical Staff member in good standing for 30 years. AR 8540. The complaints against him included profanity, belittling or bullying comments, lack of responsiveness, and failure to follow protocols. AR 8540. Aleman received informal counseling from MEC members and referral to the Medical Staff's Wellbeing Committee for these transgressions, but they did not help. AR 8540. However, Aleman never received formal discipline prior to the summary suspension. AR 8540.

The Department of Internal Medicine’s Cardiology Committee reviews cardiology cases that “fall out” for review based on automatic indicators or specifically reported issues. AR 8540. The Medical Staff has decided to engage external reviewers for some cardiac peer review to address concerns from some cardiologists that the Cardiology Committee's peer review meetings are contentious and biased. AR 8540.

On March 3, 2020, Chief of Staff Alexanian initiated an FPPE for Aleman after five of his cases came to the Cardiology Committee for review in accordance with the established criteria. AR 8541. The FPPE plan was for an outside peer to review these five cases as well as Aleman’s next ten cases. AR 8541. The incidents with Patient 1 and Patient 2 on March 9, 2020 prompted Alexanian to suspend Aleman’s privileges and engage Laird to review those two cases. AR 8541.

At its March 16, 2020 meeting, the MEC reviewed and discussed the Patient 1 and 2 cases. AR 8542. The MEC decided to keep the suspension in place and schedule a meeting for March 24 to consider Laird’s reports on the cases. AR 8542.

The MEC received Laird’s report on March 17, 2020. AR 8542. His report concluded that (1) Patient 1’s baseline EKG was markedly abnormal, very concerning, and did not justify Aleman’s decision to release him, and (2) Aleman should not have attempted to intubate Patient 2, and he breached the standard of care when he did so. AR 8542. The MEC decided to continue the suspension and Aleman was notified. AR 8542.

At its March 24, 2020 meeting, the MEC reviewed Laird’s reports, Aleman’s written responses and documentation, a report from Van Houten of Ayvazian’s statements to her, email statements from Sukiasyan, Lau, Rafie, and Solhpour, and a letter from Aleman offering to take certain courses and other actions. The MEC also conducted a telephonic interview of Ayvazian, AR 8542-43. The MEC decided to keep the suspension in place until it could review Laird’s findings on the five cases that were part of Aleman’s FPPE. AR 8543.

On April 7, 2020, Laird provided the MEC with his report concerning the five FPPE cases. AR 8544. He identified quality issues regarding Aleman’s judgment and procedural technique in two of the five FPPE cases: Patients C and D. AR 8544.

Aleman orally presented these cases at the April 9, 2020 MEC meeting. AR 8544. After he finished, MEC members raised concerns about the truthfulness of Aleman’s comments, particularly the claim that he called Roberts instead of Roberts calling him to consult on Patient C’s case. AR 8544. When combined with Aleman’s reported history of disruptive behavior, failed remedial efforts, and failure to accept responsibility, the MEC voted 13-6 with two abstensions to continue the suspension and recommend revocation of his privileges. AR 8544-45.

Aleman’s appeal followed. AR 8545. Per Hospital policy, the CEO appointed the Hearing Panel and Aleman did not object to its members or presiding officer. AR 8545. Under B&P Code Section 809.5(a), a peer review body such as an MEC or a person authorized to act on its behalf may suspend clinical privileges when failure to do so may present an imminent danger to the health of any individual. AR 8546-47. Under B&P Code section 809.3(b), the peer review body bears the burden of persuasion in a medical staff peer review proceeding by preponderance of the evidence. AR 8547.

Medical Staff Bylaws section 10.E grants the MEC, the Chief of Staff, or the chair of a clinical department, in conjunction with the CEO or the CMO/VPMA, the authority to suspend and restrict clinical privileges pending an investigation when the failure to do so may present an imminent danger to the health of any individual. AR 8547. Medical Staff Bylaws section 10.F grants the MEC, following an investigation, to recommend suspension, restriction, or revocation of appointment or clinical privileges based on concerns about (a) clinical competence or practice, (b) safety or proper care being provided to patients, (c) violations of ethical standards or the Bylaws, Policies, or Rules of the Hospital or the Medical Staff, or (d) conduct that is inconsistent with the Medical Staff Behavior That Undermines a Culture of Safety Policy. AR 8548. See also AR 8550 (Policy section 6.D.1).

Policy section 2.B.2(a) requires that all physicians provide continuous and timely quality care to all patients for whom the individual has responsibility. AR 8549. Policy section 4.C defines an “emergency” as a condition that can could result in serious or permanent harm to a patient that could increase with any delay in treatment. AR 8549. In emergency situations, physicians can give aid even if they do not have the specific privilege. AR 8549.

Rafie was the STEMI on-call physician but delegated Patient 1’s evaluation to Aleman. AR 8552. When Aleman examined Patient 1, he was no longer in pain and wanted to leave. AR 8552. Aleman told Ayvazian that Patient 1 was “full of shit,” which he testified meant that Patient 1 acted like he knew more about his condition than he did. AR 8551-52.

Ayvazian testified that Aleman said to send Patient 1 home. AR 8551. Aleman’s March 13, 2020 note supports Ayvazian’s recollection that Aleman said to discharge Patient 1 for follow-up in a few days as it lists a plan of care to “Discharge Home and follow in 3-5 days.” AR 8552. Ayvazian was not comfortable discharging the patient and asked the hospitalist (an internist specializing in hospitalized patients) to admit him. AR 8551. The patient’s second troponin level came back elevated and his third was critical. AR 8552. Rafie took the patient to the Cath Lab for an urgent coronary intervention with good results. AR 8552.

Patient 2 was experiencing cardiogenic shock and respiratory failure. AR 8554. Clinical staff requested Sukiasyan to intubate him, but he did not arrive. AR 8554. Sukiasyan now claims he never committed to intubation. AR 8554. Patient 2 continued to destabilize. AR 8554. They did not know how long it would take for an intensivist to arrive. AR 8554. No one called for a RRT or initiated a Code Blue. AR 8554. Aleman unsuccessfully attempted to intubate Patient 2 although he did not have intubation privileges. AR 8554. Staff requested an intensivist to intubate Patient 2 and Lau arrived shortly after Aleman’s failed attempt. AR 8554. Lau promptly intubated Patient 2 and noted trauma to his airway which may have been caused by Aleman’s failed attempt. AR 8554.

The emergent nature of the situation coupled with conflicting testimony made it difficult to reach conclusions. However, the Credentials Policy permits a Medical Staff member to administer treatment within the scope of his license in an emergency and Aleman reasonably believed that the situation was an emergency when he tried to intubate Patient 2. AR 8554.

The evidence raised significant and credible concerns about significant aspects of Aleman's judgment and technique in his treatment of Patients C and D. AR 8555.

The Cardiology Committee reviewed several of Aleman’s cases in 2017 and 2019 prior to the FPPE. AR 8555. The Cardiology Committee treated the 2017 cases as opportunities for education, improvement of documentation and communication, and consideration of alternative methods for managing certain types of patients. AR 8555. The Cardiology Committee cited concerns in four of the nine cases from 2018 and 2019 but did not impose any discipline. AR 8555. Between November 2019 and February 23, 2020, five of Aleman’s cases triggered the FPPE. AR 8555. The documentary evidence demonstrated a history of complaints about Aleman’s behavior and lack of professionalism. AR 8555. Aleman received counseling for these complaints. AR 8556.

The Hearing Panel concluded that the MEC imposed and continued the summary suspension in good faith, based on legitimate concerns for patient safety. AR 8556. Lee’s testimony as to Aleman’s quality of care was less persuasive than Laird’s. AR 8556. Aleman paid Lee to support him, and Lee overreached by opining that all care that Aleman administered was optimal. AR 8556. The evidence does not support that conclusion. AR 8556. Laird’s opinions may not be fully correct, but they were sufficient to lead the MEC to conclude that failure to summarily suspend Aleman might result in imminent danger to patients. AR 8556.

Substantial evidence supported the MEC’s summary suspension. AR 8556. The MEC made substantial efforts to obtain information about Patient 1 and Patient 2’s care before deciding to suspend Aleman. AR 8556. Although multiple factors contributed to the care of each patient, Aleman’s actions were central to the concerns that each raised. AR 8557. This concern also made it reasonable to expand the scope of consideration to the FPPE cases and complaints about Aleman in previous years. AR 8557. Disruptive physician behavior can adversely affect patient care if it makes other staff reluctant to work with the physician. AR 8557. The suspension was reasonable and warranted based on the facts the MEC had at the time. AR 8557.

The evidence did not establish that Aleman should be deprived of an opportunity to demonstrate his deficiencies are remediable and that he can rejoin the Medical Staff. AR 8557. Prior to the FPPE, the Cardiology Committee only recommended informal education and counseling for Aleman’s failures. AR 8558. He had spent 30 years as a contributing member of the Medical Staff with valuable technical skills. AR 8557. Aleman has never been required to undergo formal evaluation through San Diego PACE, work with the MEC's Wellbeing Committee, or complete recognized educational programs related to professionalism, documentation, or communication. AR 8558. The preponderance of evidence did not suggest Aleman is incapable of improvement, and he had submitted a letter that reflects his willingness to comply with such orders. AR 8558. The MEC failed to demonstrate that termination of privileges was a reasonable and warranted action. AR 8558.

The Hearing Panel recommended a written agreement with Aleman that would (1) require him to enroll in and complete courses designed to address specific identified concerns, and (2) provide for phased restoration of his clinical privileges subject to time restrictions, proctoring, and future award of interventional cardiology privileges. AR 8558-59.

On October 4, 2021, Aleman appealed the Hearing Panel decision. AR 8363. Aleman limited his appeal to his summary suspension and whether there should be conditions to his continued staff membership and restoration of privileges. AR 8363. He did not appeal from the Hearing Panel’s decision that revocation of his privileges was not warranted. AR 8363.

The Board appointed an Ad Hoc Board Appeal Panel (“Appeal Panel”) which considered written briefs and oral argument of the parties. On December 6, 2021, the Appeal Panel issued its appeal recommendation. AR 8434-51. The Appeal Panel stated that it had the opportunity to review all submitted materials, including the 15 court-reported hearing sessions. AR 8435-36. Policy Section 7.G-1(b) authorizes the Appeal Panel to adopt, modify, or reverse any recommendation that it receives or make its own decision based on its ultimate legal authority. AR 8436. The Board still must comply with B&P Code section 809.005 and give the findings of peer review bodies great weight. AR 8436.

The Hearing Panel’s decision must be affirmed if (1) the Hearing Panel’s decision is reasonable and warranted, (2) the Hearing Panel’s findings support the recommendation, (3) the procedure was fair, and (4) the decision is not arbitrary, capricious, or not otherwise in accordance with law. AR 8436.

Aleman had been in good standing as a Medical Staff member for 30 years, despite some issues with conduct in the last seven years. AR 8437-38. Aleman received informal counseling and referral to the Medical Staff’s Wellbeing Committee. AR 8438. Although these did not improve his behavior, Aleman never received formal discipline until his suspension in March 2020. AR 8438.

The Appeal Panel reiterated the facts set forth in the Hearing Panel decision concerning Aleman’s FPPE, the Patient 1 and Patient 2 incidents, Alexanian’s March 9, 2020 decision to suspend Aleman’s privileges, his decision to engage Laird to review the cases, and the MEC’s March 16, 24 and April 9 meetings. AR 8439-41.

For Patient 1, the Appeal Panel concurred with the Hearing Panel that Aleman’s actions created concerns. AR 8442-43. The Appeal Panel also concurred with the Hearing Panel that Aleman’s actions in the care of Patient 2 created concerns, although he reasonably believed that the situation was an emergency. AR 8444.

For the FPPE cases, the Appeal Panel concurred with the Hearing Panel that the evidence raised significant and credible concerns about significant aspects of Aleman's judgment and technique in his treatment of Patients C and D. AR 8444. So did Aleman’s clinical and behavioral history. AR 8445.

The Appeal Panel agreed that the MEC imposed and continued the summary suspension in good faith, based on legitimate concerns for patient safety. AR 8445. The Hearing Panel did not find Lee’s opinions more persuasive than Laird’s and the Appeal Panel concurred. AR 8445-46. The Appeal Panel also agreed that the MEC made substantial efforts to obtain information about Patient 1 and Patient 2’s care to decide whether to suspend Aleman. AR 8446-47. Although multiple factors contributed to the care of each, Aleman’s actions were central to the concerns that each raised. AR 8447. The concern about the care of Patient 1 and Patient 2 also made it reasonable to expand the scope of consideration to the FPPE cases and Aleman’s history. AR 8447. The suspension was reasonable and warranted based on the facts the MEC had at the time. AR 8447.

In its independent judgment, the Appeal Panel did not concur with the Hearing Panel’s conclusion that the MEC’s recommendation to terminate Aleman’s privileges was not reasonable and warranted. AR 8447-48. The Appeal Panel still concurred, however, that Aleman’s 30-year history entitles him to an opportunity to demonstrate that his deficiencies are remediable and that he can work to rejoin the Medical Staff. AR 8448. None of his past transgressions led to anything beyond informal education. AR 8448. Aleman has never been required to undergo formal evaluation through San Diego PACE, work with the MEC's Wellbeing Committee, or complete recognized educational programs related to professionalism, documentation, or communication. AR 8448. The preponderance of evidence did not suggest Aleman is incapable of improvement, and he had submitted a letter that reflects his willingness to comply with such orders. AR 8448.

The Appeal Panel recommended adoption of the Hearing Panel’s remedial plan. AR 8448. Like the Hearing Panel, the Appeal Panel upheld the suspension and recommended a written agreement that would (1) require Aleman to enroll in and complete courses designed to address specific identified concerns, and (2) provide for phased restoration of his clinical privileges, subject to time restrictions, proctoring, and future award of interventional cardiology privileges. AR 8448-50. The Appeal Panel also asked that the MEC advise the Board of any specific remediation steps that Aleman takes and require that the Board approve the completion of those steps before Aleman resumes practice. AR 8450.

On December 9, 2021, the Board voted to accept the recommendations in the Appeal Panel’s decision. AR 8452, 8455.

Petitioner Aleman seeks mandamus to set aside (1) his summary suspension as not authorized and not reasonable and warranted, and (2) the conditions for restoration of his privileges as not reasonable and warranted and not supported by substantial evidence.

Aleman correctly points out that the Hospital’s opposition contains scant factual arguments citing only the Appeal Panel decision and not the evidence itself. Aleman argues that the Hospital should be deemed to have waived its arguments made without supporting the evidentiary record. See Advanced Choices, Inc. v. State Dept. of Health Services, (2010) 182 Cal.App.4th 1661, 1671. Reply at 4. The court agrees that the Hospital’s arguments concerning substantial evidence are not particularly useful. Therefore, it will principally address only Aleman’s points.

Aleman falsely labors under the impression that he is challenging the MEC’s decisions. He is not. He appealed first to the Hearing Panel and then to the Board, which appointed the Appeal Panel. Aleman seeks review from the Board’s final action based on the Appeal Panel’s recommendation. A hospital governing body has “…final responsibility for the quality of its medical staff and care…its decisions within this domain are entitled to deference…" by the Court. Weinberg, supra, 119 Cal. App. 4th at 1109. Thus, the Board’s decision[9] must be upheld “…unless the findings are so lacking in evidentiary support as to render them unreasonable." See Hongsathavij v. Queen of Angels, etc. Medical Center, supra, 62 Cal. App. 4th at 1137.

Finally, much of Aleman’s argument suggests that the court can weigh the evidence and decide credibility of witnesses. This is incorrect. “On substantial evidence review, we do not ‘weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.’” Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1055, 1073. The court is required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. Minelian v. Manzella, (1989) 215 Cal.App.3d 457, 463. Credibility is an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc., (1994) 28 Cal.App.4th 613, 622), and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact (In re Marriage of Mix, (1975) 14 Cal.3d 604, 614. Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1055, 1074. As will be discussed, the inapplicability of credibility determinations is dispositive of much of the substantial evidence issues.

The Hearing Panel concluded that the MEC's recommendation to terminate Aleman's Medical Staff membership and privileges was not reasonable and warranted and it recommended the incremental restoration of Aleman's privileges after he completed certain courses and was proctored. AR 8557-59. The Appeal Panel disagreed. Exercising its independent judgment, it found the termination of Aleman's membership and privileges to be reasonable and warranted. AR 8448. Nonetheless, the Appeal Panel adopted the Hearing Panel's recommendation for the incremental restoration of Aleman's privileges and concurred with the Hearing Panel's plan of remediation. AR 8449-50.

Aleman argues that the Appeal Panel exceeded its authority under the Hospital’s own policies. The Credentials Policy states that either the physician or the MEC may appeal the JRC’s decision and that failure to appeal waives the right to appeal. AR 3349 (Policy §7.F.1). Aleman appealed the Hearing Panel’s decision only with respect to the imposition of terms upon his return to practice, not the conclusion that revocation was not reasonable and warranted. AR 8363. The MEC did not appeal the Hearing Panel’s rejection of the MEC’s recommendation to revoke Aleman’s privileges. Yet, the Appeal Panel improperly concluded that the Hearing Panel erred, and that revocation was reasonable and warranted. AR 8569, 8581-82. A hospital’s internal policies are binding upon it, subject to the minimum procedural protections of B&P section 809. Unnamed Physician v. Bd. of Trustees of St. Agnes Med. Ctr., (2001) 93 Cal.App.4th 607, 622-23; B&P Code §809.6. That conclusion must be set aside as violating the Hospital’s own policies and procedures. Pet. Op. Br. at 23.

The Hospital responds that B&P Code section 809.05 (a), which requires a hospital Governing Body to give great weight to the actions of peer review bodies, has been interpreted to mean that the governing body may exercise its independent judgment about evidence presented to a peer review committee, provided that it gives due weight to the findings of that committee and the hospital's bylaws do not require a more deferential standard of review. Michalski v. Scripps Mercy Hospital, (2013) 221 Cal. App. 4th 1033, 1043-44 (citation omitted). Policy section 7.G.1(b) does not require the Board to apply a deferential standard and expressly authorizes the Board make its own decision based upon the Board's ultimate legal authority for the operation of the Hospital and the quality of care provided. AR 3350. Based upon this provision, the Appeal Panel was authorized to exercise its independent judgment in reviewing the Hearing Panel decision, provided that it comply with Business and Professions Code section 809.05 requiring it to give great weight to the Hearing Panel’s decision. The Appeal Panel properly applied this standard of review. AR 8436. Opp. at 10.

The Hospital misses the point. The Appeal Panel was entitled to exercise its independent judgment, but only on the issues that were presented to it on appeal. The MEC did not appeal from the Hearing Panel’s decision not to revoke Aleman’s privileges. Therefore, the Appeal Panel could not independently revoke those privileges.

There is nothing for the court to set aside, however, because the Appeal Panel adopted the Hearing Panel’s recommendation for the incremental restoration of Aleman's privileges and concurred with the Hearing Panel's plan of remediation. AR 8449-50. The Appeal Panel’s comments that revocation is appropriate reflect its view of the significance of Aleman’s violations but otherwise have no bearing on the appropriateness of the restoration of privileges.

The reasonableness of a summary suspension is to be determined in light of the information available and relied upon at the time it was imposed. Sadeghi v. Sharp Memorial Medical Center., Chula Vista, (“Sadeghi”) (2013) 221 Cal. App. 4th 598, 614.

The Appeal Panel found that Aleman was delegated the responsibility to evaluate Patient 1 in the ER and the evidence established that Aleman examined Patient 1 and told the Emergency Room physician to send the patient home. Yet, the evidence proved that the patient had experienced a myocardial infarction and was not stable. The Appeal Panel concluded that discharging the patient to home would have placed him at a risk for a bad outcome, including death. AR 8443.

The Appeal Panel also found that Aleman unsuccessfully attempted to intubate Patient 2 despite the fact that he did not have intubation privileges, and that his failed attempt to intubate the patient may have caused trauma to the patient's airway. AR 8444.

The Appeal Panel found that the two cases of Patients C and D reviewed by Laird as a part of Aleman's FPPE revealed significant, credible concerns about Aleman's judgment and technique. AR 8444.

Finally, the Appeal Panel found that documentary evidence and testimony demonstrated that Aleman had a history of complaints of lack of professionalism and unprofessional conduct that included the use of profane language, bullying, failure to timely respond and failure to follow appropriate protocols. AR 8445. The Hearing Panel concluded that disruptive physician behavior can adversely affect patient care if it makes other staff reluctant to work with the physician. AR 8557.

The Hearing Panel did not find Lee’s opinions more persuasive than Laird’s. AR 8445. The Appeal Panel also agreed that the MEC made substantial efforts to obtain information about Patient 1 and Patient 2’s care in deciding whether to suspend Aleman. AR 8446-47.

Based on these findings with which it concurred, the Appeal Panel agreed with the Hearing Panel that the MEC imposed and continued the summary suspension in good faith, based on legitimate concerns for patient safety. AR 8445. Although multiple factors contributed to the care of each patient, Aleman’s actions were central to the concerns that each raised. AR 8447. This concern also made it reasonable to expand the scope of consideration to the FPPE cases and Aleman’s history. AR 8447. The suspension was reasonable and warranted based on the facts the MEC had at the time. AR 8447.

Aleman argues that his summary suspension was invalid because Alexanian violated the Hospital’s Bylaws, which only permit a Chief of Staff to summarily suspend in conjunction with the CEO or CMO/VPMA. AR 3277 (Policy §10.E.(1)). Alexanian’s willful violation of the Bylaws points to improper negative bias in implementing the suspension, involving some improper reason for the suspension such as personal animus or protection of his cronies. See El-Attar v. Hollywood Presbyterian Medical Center, (2013) 56 Cal.4th 976, 995 (recognizing a potential for abuse by a hospital with negative animus toward a physician). Pet. Op. Br. at 11; Reply at 3.

In reply, Aleman adds that the Chief of Staff’s violation in not including the CEO was more than merely a violation of the Bylaws; it was unauthorized by statute. Reply at 3. B&P Code section 809.5(a) states that “a peer review body” may immediately suspend a physician and 809.5(b) states that the governing body of a hospital, or its designee, may immediately suspend a licentiate's clinical privileges “[w]hen no person authorized by the peer review body is available to do so. In the present case, the persons authorized by the Bylaws to impose a summary suspension were the Chief of Staff and either the CEO or CMO/VPMA. Alexanian had no authority under B&P Code section 809.5 to impose the summary suspension unilaterally because he had not been authorized by the Board to do so. A trial court's review of a hospital’s action is limited to whether the entity exceeded its proper authority, used unfair procedures, or acted in a manner that was ‘arbitrary, capricious, or entirely lacking in evidentiary support.” Weinberg v. Cedars-Sinai Medical Center, (“Weinberg”) (2004) 119 Cal.App.4th 1098, 1108 (citation omitted). Aleman concludes that Alexanian exceeded his proper authority under statute and the summary suspension was void ab initio. Reply at 3.

The Hospital correctly responds (Opp. at 11-12) that the initiation of a summary suspension is not a part of the determination of a fair hearing. See Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal. App. 4th 93, 107 (the motives of doctor initiating suspension were not relevant to whether the suspended physician received a fair hearing before the JRC).

The court agrees with Aleman that Chief of Staff Alexanian, acting alone, violated Policy section 10.E(1) by not acting in conjunction with the CMO/VPMA or the CEO when he imposed the suspension on March 13, 2020. See AR 3277. This also violated the statutory authority of B&P Code section 809.5. However, the court is not reviewing Alexanian’s decision. It is reviewing the decision of the Appeal Board in upholding the decision of the MEC, which had the power to modify or set aside Alexanian’s decision and did not do so. See AR 3277 (Policy §10.E(2)).

The concept of “fair procedure” does not require rigid adherence to any particular procedure. Bollengier v. Doctors Medical Center, (1990) 222 Cal.App.3d 1115, 1129. A peer review body may immediately suspend or restrict clinical privileges of a licentiate where the failure to take action may result in an imminent danger to the health of any person, provided the licentiate is subsequently provided with the notice and hearing rights set forth in B&P Code sections 809.1-809.4. B&P Code §809.5(a). Aleman received such notice and had his hearing. The MEC met on three separate occasions – March 16, March 24, and April 9, 2020 – and each time the MEC affirmed the suspension. These decisions superseded Alexanian’s action, and whether he exceeded his authority to suspend Aleman is no longer an issue. There is no “but for” analysis involved with respect to Alexanian’s decision as affirmed by the MEC.

Moreover, violation of the Bylaws or statute by Chief of Staff Alexanian is not dispositive. A violation of a bylaw or statute does not establish a denial of fair procedure (or due process). Tiholiz v. Northridge Hospital Foundation, (1984) 151 Cal. App. 3d 1197, 1203. “Rather, the question is whether the violation resulted in unfairness, in some way depriving the physician of adequate notice or an opportunity to be heard before impartial judges." Rhee v. El Camino Hospital District, (1988) 201 Cal. App. 3d 477, 497. Aleman does not contend that Alexanian’s violation had any prejudicial effect on his suspension. The three-day suspension imposed by Alexanian on March 13, 2020 before the MEC acted on March 16, 2020 was brief and Aleman points to no prejudice from it. As the Hospital points out, it also is hard to imagine how the CEO’s involvement in initiating the suspension could have affected the outcome. See Opp. at 11-12.

Aleman argues that his summary suspension was arbitrarily and capriciously imposed. He contends that Alexanian imposed the suspension only after an inadequate investigation of the Patient 1 and 2 incidents in which he (a) only spoke briefly with Ayvazian, who was not present when Aleman examined Patient 1, (b) did not review any medical records, (c) did not speak with any physician or staff involved with Patient 2, and (d) did not ask Aleman about either incident. Having done virtually no investigation, Alexanian had no justification to conclude that Aleman posed an imminent danger to patient safety and so acted arbitrarily and capriciously. Pet. Op. Br. at 10; Reply at 4.[10]

Aleman points to no authority that the investigation for a summary suspension must be thorough or complete. Rather, the reasonableness of a summary suspension is determined in light of the information available and relied upon at the time it was imposed. Sadeghi, supra, 221 Cal. App. 4th at 614. There is no requirement of a thorough investigation.

In any event, the investigation was more than adequate, with additional information developed before each MEC hearing.

For the initial March 13, 2020 suspension, Alexanian had information that Aleman told the ER physician that Patient 1 was “full of shit. Send him home.” AR 7971. The ER physician disagreed, and Patient 1 was admitted to the Hospital. AR 7971. Aleman’s partner later performed an interventional procedure on Patient 1 that showed 90% occlusion and significant stenosis. AR 7971. Aleman failed to document the encounter. AR 7971.

Alexanian also had information that Aleman intubated Patient 2 without privileges to do so. AR 7971. The intubation resulted in oral trauma. AR 7971. Based on these two incidents, Alexanian determined that failure to suspend Aleman may result in an imminent danger to the health and safety of hospital patients. AR 7971.

By March 14, 2020, Alexanian had Lau’s email providing his account of what occurred with Patient 2. Lau acknowledged that Aleman considered it an emergent situation that required him to intubate when no one else was there to do it. AR 7982. However, the Hospital has protocols in place to call a RRT or Code Blue for such urgent or emergent situations. AR 7982. Because the patient was still conscious, Aleman subjected him to significant pain when Aleman intubated him without anesthesia. AR 7982. Patient 2 also was severely malpositioned on the Cath Lab table with his head fully off the table and physically held up by Aleman, which risked injury to the patient. AR 7982. There was trauma to Patient 2’s oral cavity, as evidenced by the significant amount of blood in the oropharynx that Lau observed during laryngoscopy. AR 7982. In short, Aleman’s failed intubation attempt and failure to follow Hospital procedure resulted in a significant delay in patient care and direct patient harm to a critically ill patient. AR 7982.

At the March 16, 2020 meeting, the MEC possessed Aleman’s letter in which he stated that Patient 1 did not have a myocardial infarction based on the data at the time and Patient 1 refused admission, stating that he was an engineer and familiar with WPW and he previously refused abalation because he did not want a pacemaker. AR 8043. Patient 1 told Aleman that all the cardiologists he had seen wanted to admit him, but he did not want to be admitted. AR 8044. Aleman admitted that he used foul language concerning Patient 1 because he was frustrated about the conversation they had. AR 8044. About two hours after Aleman saw him, Patient 1 had an elevated second troponin test result. AR 8044. Rafie then saw Patient 1 and got him to agree to admission to the Hospital. AR 8044.

For Patient 2, Aleman had just finished in the ER with Patient 1 and he went to the Cath Lab. AR 8044. Aleman told the staff to call for intubation. AR 8044. Sukiasyan refused to help even after Aleman offered to stop the radiation and “break the table.” AR 8044. Patient 2 was deteriorating, hypoxic, blue, and in cardiac shock. AR 8044. Aleman then placed the oralpharyngeal tube, which can be difficult when the patient fights it. AR 8044-45. Aleman stated that he did not know that he did not have intubation privileges. AR 8045. Patient 2’s intubation was not elective; he was dying, and Aleman tried to save his life. AR 8045. When the intensivist asked why he did not call a RRT or Code Blue, Aleman insisted that it was not his fault and he was trying to save a dying patient. AR 8045.

In their discussion, MEC members were concerned that Aleman was deflecting responsibility instead of addressing the issues. AR 8045. The incident with Patient 2 illustrated that Aleman did not appreciate the necessity of following hospital protocol. AR 8045.

For the March 24, 2020 meeting, the MEC had Laird’s report, Aleman’s letter, and other documents. AR 8095. The ER physician in charge of Patient 1 stated that he visited the patient and his family in his Hospital room the next day, March 10, 2020, and Patient 1’s wife stated that if the family had listened to Aleman, Patient 1 would have gone home. AR 8095. The MEC members agreed with Laird that Patient 1 was having an acute myocardial infarction and would have died if he was discharged. AR 8095. There was no doubt that Aleman made a mistake and did not manage the patient based on the standard of care. AR 8095. For Patient 2, the MEC agreed with Laird that it was improper for Aleman to try intubation when he could have called a RRT or a Code Blue. AR 8095.

At the April 9, 2020 meeting, the MEC members took into consideration that Aleman was already on a FPPE when he had the poor outcomes for Patients 1 and 2. AR 8190. Members noted that Aleman is a bully and that previous attempts at reviewing his care failed because other physicians were scared of retaliation. AR 8190. Aleman has a history of poor quality and behavior for many years that the MEC tried to help correct to no avail. AR 8190.

The MEC discussed Aleman’s argument about Patient D that the patient was STEMI, and he had no other options. AR 8191. He identified and fixed the perforation immediately and called a surgeon, Roberts, who did not believe that Patient D was a good candidate for surgery. AR 8191. Patient D died of arrhythmia and Aleman downplayed the effect of the perforation. AR 8191.

After Aleman left, Roberts -- who was present at the meeting -- stated that Aleman had not been truthful. AR 8191. Aleman did not call Roberts for Patient D’s case. AR 8191. Rather, Roberts called Aleman after the attending physician called Roberts, expressed concern for the patient, and asked for a surgical consult. AR 8191. The only reason Roberts was involved was because of the concerns of others, not Aleman. AR 8191. Roberts also stated that he told Aleman to come back to the ER to evaluate Patient D because he was having significant pain, but Aleman was reluctant to do so. AR 8191.

MEC members felt there was a pattern in which Aleman was dishonest and not taking accountability when discussing cases. AR 8191. Based on the cases of Patient 1, Patient 2, Patient C, and Patient D, the MEC voted both to continue the suspension and to recommend revocation of Aleman’s privileges and membership. AR 8191.

The court concludes that the investigation at each stage was sufficiently thorough.

Aleman argues that the Board’s decision upholding the suspension was so lacking in evidentiary support as to make it unreasonable.[11] He contends that Alexanian had no reasonable basis to conclude that he (Aleman) attempted to discharge Patient 1 rather than trying to persuade him to stay at the Hospital, and wrongly relied solely on Ayvazian’s secondhand account of what Aleman allegedly said to him in a brief discussion outside of the patient room. More importantly, Aleman could not have discharged Patient 1 because the policy is that “[p]atients shall be discharged only on a written order of the attending physician involved in their care.” AR 3367 (Policy §4.a.). The attending physicians were the ER doctor and Rafie; Aleman was only involved as a consulting doctor at Rafie’s request. AR 7618. Pet. Op. Br. at 10-11.

Aleman argues that Alexanian had no basis to conclude that he (Aleman) posed any risk to patient safety based on his attempt to save Patient 2’s life, as the patient was literally suffocating to death on the table. This is particularly true where Alexanian knew nothing about the circumstances, including Sukiasyan’s inexplicable failure to intubate despite repeatedly saying that he would do so. Pet. Op. Br. at 11.

As stated ante, for the initial March 13, 2020 suspension, Alexanian had information that, while providing ER coverage for his practice partner, Aleman told the ER physician that Patient 1 was “full of shit. Send him home.” AR 7971. The ER physician disagreed, and Patient 1 was admitted to the Hospital. AR 7971. Aleman’s partner later performed an interventional procedure that showed 90% occlusion and significant stenosis. AR 7971. Aleman also failed to document the encounter. AR 7971.

Aleman also intubated Patient 2 even though he did not hold privileges to do so. AR 7971. This resulted in oral trauma. AR 7971. Based on these two incidents, Alexanian determined that failure to suspend Aleman may result in an imminent danger to the health and safety of hospital patients. AR 7971.

By March 14, 2020, Alexanian had Lau’s email providing his account of what occurred with Patient 2. Lau acknowledged that Aleman considered it an emergent situation that required him to intubate when no one else was there to do it. AR 7982. However, the Hospital has protocols in place to call a RRT or Code Blue for such urgent or emergent situations. AR 7982. Because the patient was still conscious, Aleman subjected him to significant pain when Aleman intubated him without anesthesia. AR 7982. Patient 2 also was severely malpositioned on the Cath Lab table with his head fully off the table and physically held up by Aleman. AR 7982. This risked injury to the patient. There was trauma to Patient 2’s oral cavity, as evidenced by the significant amount of blood in the oropharynx that Lau observed during laryngoscopy. AR 7982. In short, Aleman’s failed intubation attempt and failure to follow Hospital procedure resulted in a significant delay in patient care, and direct patient harm to a critically ill patient. AR 7982.

At the March 16, 2020 meeting, the MEC had Aleman’s explanation that Patient 1 did not have a myocardial infarction based on the data at the time, Patient 1 refused admission, stating that he was an engineer and familiar with WPW, and he previously had refused an ablation because he did not want a pacemaker. AR 8043. Aleman admitted that he used foul language concerning Patient 1 because he was frustrated about the conversation they had. AR 8044.

This is substantial evidence that Aleman wrongly wanted to send Patient 1 home, was deflecting responsibility instead of addressing, the issues and did not appreciate the necessity of following hospital protocols. AR 8045. Therefore, the suspension was not unreasonable.

The Bylaws provide: “…(4) The MEC will review the reasons for the suspension within a reasonable time under the circumstances, not to exceed 13 days. (5) Prior to, or as part of, this review, the individual will be given an opportunity to meet with the MEC.” AR 3277 (Policy §10.A). A summary suspension only becomes reportable to the Medical Board, and therefore a serious matter for a physician, if it lasts more than 14 days. B&P Code §805(e). The requirement to wait 14 days before reporting a summary suspension, therefore, necessarily means that the decision to continue the suspension past that point must also be reasonable and warranted at the time. Pet. Op. Br. at 12.

Aleman notes that, on March 24, 2020, the MEC voted to continue the suspension and it became reportable. AR 8095-96. The MEC had Laird’s report on the Patient 1 and 2 incidents, documents provided by Aleman, and statements and documents by others. AR 8095. Aleman argues that the MEC unreasonably concluded that he posed an imminent risk to patient safety because (a) he allegedly tried to discharge Patient 1 and it was “believed that the patient would have died if he was discharged” and (b) he improperly attempted to intubate Patient 2 instead of calling a Code Blue or an RRT. AR 8095. Pet. Op. Br. at 12.

Aleman argues that he explained in his undated letter to the MEC that he never recommended discharging Patient 1. AR 8103-04. He could not have discharged the patient even if he had wanted to, as he was not the attending physician. Simply put, there was no “imminent risk” of any kind to patient safety. Pet. Op. Br. at 12.

Aleman further explained that his attempted intubation of Patient 2 was a desperate attempt to save the patient’s life when Sukiasyan failed to appear despite repeatedly saying that he would do so. AR 8104-06. At the MEC meeting on March 16, 2020, Aleman “said it was not an elective intubation but that the patient was dying, and he was trying to save his life.” AR 8045. Aleman presented the records of Lau, the intensivist who ultimately intubated. Lau wrote in his report that he was “called to the Cath lab for emergent intubation.” AR 8047. He also wrote that consent was not signed “due to emergency circumstances”. AR 8047. Aleman also provided the nursing timeline detailing the events with the Patient 2 which clearly showed that the patient was in distress and needed immediate intubation. AR 8053-54. The MEC conceded that this was an emergent situation by stating repeatedly that Aleman should have called a Code Blue or an RRT. Yet, Hospital policy did not allow a Code Blue or a RRT to be called in the Cath Lab. Pet. Op. Br. at 13.

Aleman argues that the Hospital’s Credentials Policy expressly authorizes physicians in emergent situations to perform clinical procedures regardless of whether they possessed a specific grant of clinical privileges. AR 3322. Despite this policy and Patient 2’s dire condition, the MEC voted to uphold the suspension based on Aleman’s attempt to intubate Patient 2. Pet. Op. Br. at 12-13.

The court agrees with Aleman that the MEC’s decision to continue his suspension past 14 days must be reasonable and warranted at the time. However, the continued suspension was reasonable and warranted based on the following evidence.

Laird noted that Patient 1’s baseline EKG from the ER was markedly abnormal and consistent with acute myocardial infarction, which should have prompted emergent/urgent catheterization and coronary intervention. AR 8059. If Patient 1 had been discharged when Aleman recommended, there would have been a high risk of sudden cardiac death or delay in revascularization with significant myocardial damage and loss of function. AR 8059-60. Aleman exercised poor judgment when he recommended discharge. AR 8060.

Laird noted that Patient 2 was a high-risk patient in cardiogenic shock upon entry into the Cath Lab. AR 8062. He became hemodynamically unstable during the procedure and developed respiratory distress necessitating intubation. AR 8062. The decision to intubate the patient was medically necessary and appropriate. AR 8062. Aleman unsuccessfully attempted intubation without intubation privileges and without calling a Code Blue or a RRT. AR 8062. When called, Lau successfully intubated the patient 15 minutes after Aleman’s attempt. AR 8062.

Aleman wrote to Chief of Staff Alexanian and contended that Patient 1’s EKG and ischemic changes when he arrived were indicative of a tachycardia episode that would normalize without mechanical intervention to his coronary arteries or thrombolysis. AR 8082. Aleman tried to explain to Patient 1 that the ablation procedure to treat his condition had a low risk of requiring a pacemaker. AR 8082. Patient 1 remained argumentative and uncooperative. AR 8082. Patient 1 was an engineer that Googled WPW and did not want to be hospitalized once he was chest-pain free. AR 8082.

The ER physician remained concerned, but Aleman said he would ask Rafie to deal with Patient 1 later because he (Aleman) had not made any progress with him. AR 8082. Aleman told the ER physician that Patient 1 was “full of shit” because he kept saying he was an engineer and knew everything about this. AR 8082. It is untrue that a different cardiologist was called to evaluate Patient 1 and that, without the insistence of the ER physician, he would have had a different outcome. AR 8082.

Aleman was finishing a different case when his partner asked for help with Patient 2’s difficult case. AR 8083. Patient 2 was in cardiogenic shock. AR 8083. When Sukiasyan was first asked to intubate the patient, he said he would be right back to do so. AR 8083. He returned ten minutes later and again said he would intubate Patient 2. AR 8083. Aleman paused the procedure to break the plane of the table, move an x-ray tube out of place, and let Sukiasyan intubate. AR 8083. Aleman tried to intubate once and failed, so he ventilated Patient 2 until an intensivist arrived and intubated him. AR 8083-84.

Aleman was not the operator for this case; he just came in to help and took desperate measures when the patient continued to decline. AR 8084. This meant that calling a Code Blue or a RRT was not his call. AR 8084. Lau also just presumed that the blood and oral trauma he saw when he arrived came from Aleman’s failed attempt. AR 8084.

On March 31, 2020, Laird responded to Aleman’s undated written comments. AR 8149. Laird conceded that much of his criticism was based on the fact that Aleman instructed the ER physician that Patient 1 could be discharged, and that the ER physician disagreed and asked another cardiologist to see the patient. AR 8149. This was at odds with Aleman’s narrative of a patient who insisted on going home. AR 8149.

On April 7, 2020, Laird submitted a report for five coronary interventions performed by Aleman. AR 8176. In two of these cases, Laird found important quality issues regarding physician judgment and procedural technique that contributed to the poor outcomes. AR 8176.

For Patient C (6063435), Aleman committed numerous lapses in judgment. AR 8181. He misidentified the infarct related artery and performed a complicated intervention after attempts to treat the diagonal artery failed. AR 8181-82. The oversized balloon and stent led to a coronary perforation, which in turn led to an avoidable death caused by poor decision-making. AR 8182.

On November 13, 2019, Aleman took Patient D (MR 6180258) to the Cath Lab. AR 3582, 8180. Aleman treated Patient D’s RCA and LAD stenosis with balloon angioplasty and a drug eluting stent. AR 8180. It appeared that Aleman did not at first realize that coronary perforation had occurred during the procedure. AR 8180. Laird concluded that while coronary perforation is an accepted complication, whether the rotational atherectomy was necessary is unclear. AR 8180. Aleman treated a less severely diseased portion of the LAD that might not have needed intervention. AR 8180. Aleman then failed to recognize perforation in this section and used a bare metal stent when he did, which exacerbated the problem. AR 8180.

This is substantial evidence, and the continued suspension was both reasonable and warranted.

The Hearing Panel concluded that revocation was not reasonable and warranted but imposed conditions that Aleman was required to meet for incremental restoration of privileges. AR 8558-59.

Aleman argues that this decision – actually the Appeal Panel’s decision as adopted by the Board -- must be set aside as not supported by substantial evidence. Pet. Op. Br. at 13.[12]

Aleman revisits the facts concerning Patient 1, who was a 49-year-old male with a history of WPW. On March 9, 2020, he presented to the ED with chest pain after use of an exercise bike. AR 257. The Hearing Panel’s primary basis for recommended revocation was that Aleman recommended discharging the patient, which would have resulted in “a high risk for an adverse outcome.” AR 8241. Aleman claims that this charge is refuted by the record. Pet. Op. Br. at 13-14.

Aleman notes that Ayvazian was not present when Aleman examined Patient 1. AR 272. Aleman testified that Patient 1 was sitting when he first arrived, “hands behind his head. He’s got his legs crossed and looks very comfortable.” AR 1249. Patient 1 reported that he felt fine. AR 1249. Aleman notified him that he came in with an abnormal EKG, to which the patient responded “I know all about WPW... I am an engineer.” AR 1249. He informed Aleman that the pain began while working out on an exercise bike and that it had happened to him before. AR 1250. Aleman told the patient that he could be having a number of issues beyond his WPW, such as ventricular tachycardia or atrial fibrillation. AR 1250. Patient 1 demanded to leave as his symptoms were now gone, and he accused Dr. Aleman of treating him like a child. AR 1250. Aleman tried to convince P1 to stay and get a thorough work-up, but P1 was unimpressed and continued to want to leave. AR 1253.[13] Pet. Op. Br. at 14.

Afterward, Aleman briefly spoke with Ayvazian. AR 1132. Contrary to Ayvazian’s account, Aleman never pushed Ayvazian to discharge Patient 1. The two discussed Patient 1’s high opinion of his education as an engineer, with Aleman mentioning that Patient 1 “is full of shit” because he thought he knows more about his disease than he really did. AR 1255-56. Aleman made it clear that he was going to let Rafie, the on-call cardiologist, deal with the patient. AR 1255-56. At no point did Aleman write a discharge order and could not do so because he was only a consulting physician. AR 1256-57. Rafie had to practically beg Patient 1’s wife to convince him to get a third troponin test. AR 1127. Pet. Op. Br. at 14.

Despite claiming to be disturbed by Aleman’s alleged recommendation for discharge, Ayvazian made no note in the medical records of such a recommendation. AR 279. Pet. Op. Br. at 15. The only evidence that Aleman recommended discharging Patient 1 came from Ayvazian, who was not a credible witness. Ayvazian claimed that Aleman told him that the patient is full of shit and can be sent home. Ayvazian further testified that he had to personally spend an hour to convince Patient 1 to get a second troponin after Aleman left the patient. AR 1392.

Aleman goes through lengthy gyrations to show that Ayvazian was not credible. He argues that the second troponin was ordered at 2:43 p.m. and Ayvazian testified that Aleman would have left the ER “about an hour before that.” AR 1392-93, 7436. Ayvazian’s timeline places Aleman at Patient 1’s bedside at roughly 1:43 p.m. However, Aleman attempted intubation of Patient 2 at 1:52 p.m., which occurred before he saw Patient 1. AR 6888. Lau, the intensivist, did not arrive at the Cath Lab for Patient 2 until 1:57 p.m. and Aleman remained to continue to assist with that procedure and speak with Lau. The nursing notes from the ER indicate that, as of 2:15 p.m., Patient 1 was still “awaiting for cardiology to see pt” and that Aleman arrived at 2:27 p.m. AR 7756. This was before Aleman spoke with Ayvazian, which would have given Ayvazian a very narrow window in which to have “pleaded” with Patient 1 to have a second troponin ordered at 2:43 p.m. Pet. Op. Br. at 15.

This timeline argument is irrelevant. Ayvazian testified that he wanted Patient 1 to be admitted into the Hospital, but Aleman’s interaction with the patient made it more difficult to convince him. AR 262. Ayvazian was not in the room and did not hear what Aleman said to the patient, but whatever Aleman said assured the patient that he could go home. AR 262. Ayvazian went back to evaluate Patient 1, who was by then pain free after receiving medications. AR 262. Patient 1 asked why he should stay if the cardiologist said he could go home. AR 262. He spent close to an hour persuading Patient 1 not to go home. AR 263. He spent an hour after Aleman left convincing Patient 1 to take a second troponin test at 2:49 p.m. AR 1392-93. Aleman did not return to the ER to see the EKG or the second troponin results. AR 1393.

The Hearing Panel found that Ayvazian testified that Aleman said to send Patient 1 home. AR 8551. Aleman’s March 13, 2020 note supports Ayvazian’s recollection that Aleman said to discharge Patient 1 for follow-up in a few days as it lists a plan of care to “Discharge Home and follow in 3-5 days.” AR 8552. Ayvazian was not comfortable discharging the patient and asked the hospitalist to admit him. AR 8551. The Appeal Panel accepted Ayvazian’s testimony as credible, which is substantial evidence. AR 8443; see Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1074.[14]

Aleman contends that he acted properly in an emergency for Patient 2. He did not improperly attempt to intubate Patient 2 and should not have called a Code Blue or a RRT. Aleman notes the overwhelming evidence of the emergency nature of the patient’s situation. The patient’s blood pressure was dropping to a dangerous level and oxygenation levels were dangerously low. AR 7116-17, 911-12. Aleman testified that he correctly positioned Patient 2 on the table. The table had a head rest, and his head had been propped up with a wedge or pillow because he was having trouble breathing. AR 1271-72. Aleman looked in Patient 2’s mouth to examine the airway and saw that his dentures had been dislodged. AR 1281. Patient 2 was deteriorating significantly and suffered from diabetic ketoacidosis. AR 1274-76. Patient 2 was unconscious and did not fight Aleman in any way on the intubation attempt. AR 1282-83. After learning that Sukiasyan would not enter due to radiation, Aleman suggested to “break the table” to allow Sukiasyan to intubate without exposure. AR 1279. The case was paused, but Sukiasyan did not come. Ibid. The procedure could not continue to be paused without potentially causing the patient to die. AR 1034. Pet. Op. Br. at 17, n. 9, 18.

Aleman argues that the blame for his failed intubation attempt falls on Sukiasyan, who repeatedly said that he would intubate but did not. Sukiasyan testified that Nurse Yi asked him twice to intubate Patient 2 while he was in another procedure room. AR 352. He examined Patient 2 briefly and confirmed that “vital signs were kind of stable so patient appeared to be not coding patient.” AR 353. Sukiasyan further testified that Patient 2 was breathing spontaneously, and a heart rate and blood pressure were present. AR 353, 8112. He announced to the whole room that he could not stay and had a detailed conversation with Nurse Yi that it was ok if he could not intubate Patient 2. AR 354. Pet. Op. Br. at 17.

Sukiasyan’s non-credible testimony was accepted whole cloth by the MEC. AR 8112. Every detail of Sukiasyan’s account is discredited by the medical records and witnesses. Nurse Yi testified that Sukiasyan was not in the procedure room when she approached him but instead was standing in the control room. AR 812. The nursing log clearly shows that Sukiasyan was asked three times -- not two -- to intubate the patient, and that he never once examined the patient. AR 7121. Nurse Yi stated that no one knew Sukiasyan was not coming and the “whole team” believed he was going to intubate the patient. AR 819. Pet. Op. Br. at 17-18.

Aleman’s attack on Sukiasyan’s credibility is beside the point. Laird opined that it was unclear why Aleman did not call a Code Blue or RRT. AR 8062. Lau’s description suggests that the physicians should have performed ventilation with bag/mask pending intubation by a credentialed physician. AR 8062. Aleman’s intubation was not appropriate and did not meet the standard of care. AR 8062. Laird subsequently sympathized with Aleman’s frustration that he was not the primary operator for the case and the general confusion whether Sukiasyan would return. Nonetheless, he maintained that Aleman’s attempted intubation of Patient 2 was inappropriate. AR 8149.

Neither the Hearing Panel nor the Appeal Panel excused Sukiasyan from fault. The Hearing Panel found that the emergent nature of the situation coupled with conflicting testimony made it difficult to reach conclusions. However, the Credentials Policy permits a Medical Staff member to administer treatment within the scope of his license in an emergency and Aleman reasonably believed that the situation was an emergency when he tried to intubate Patient 2. AR 8554.

Thus, the issue was what action Aleman should have taken given Sukiasyan’s failure to appear. Aleman unsuccessfully attempted to intubate Patient 2 although he did not have intubation privileges. AR 8554. Staff requested an intensivist, and Lau arrived shortly after Aleman’s failed attempt and promptly intubated Patient 2. Lau noted trauma to the patient’s airway which may have been caused by Aleman’s failed attempt. AR 8554.[15] Thus, the Hearing Panel implicitly concluded that Aleman should have called a Code Blue or for a RRT, or else should have requested an intensivist, but he should not have attempted an intubation for which he did not have privileges.[16]

Aleman argues that Hospital policies did not require or allow anyone in the room to activate a Code Blue or call for an RRT. Lee testified there was no justifiable need to call a Code Blue as the only thing needed was an anesthesiologist, who was available. AR 1036-37. Pet. Op. Br. at 18.

This is not entirely accurate. A Code Blue may not be activated by overhead page in areas where physician(s) and full supportive staff are already present. AR 3411 (Code Blue Policy §B.1.d). Obviously, an anesthesiologist was not present to perform the intubation. Therefore, a Code Blue could have been activated. Moreover, Aleman does not explain why an RRT was not called. An RRT will be called when a patient shows signs of clinical deterioration. AR 3417. That was exactly the case here. Aleman’s position that he was not the operator on the case and it was not his call whether an RRT or Code Blue should be made (AR 8084) also applies to his decision to intubate. Finally, he could have called for an intensivist, which staff ultimately and Lau came promptly.

Substantial evidence supports the Appeal Panel’s conclusion that Aleman should not have performed an emergency intubation for which he had no privileges and that he should have taken one or more other actions.

The charges with respect to Patient C were that Aleman “demonstrated numerous lapses in judgment and technique” in his handling of her “that resulted in an avoidable death,” specifying various alleged missteps. AR 8242-43. Laird opined that Aleman attempted a complicated intervention on a non–infarct artery for Patient C (AR 8181-82), using oversized balloons and stents which led to a coronary perforation/rupture and avoidable death. AR 8181-82.

Aleman argues that none of the adverse findings on Patient C are supported by any credible evidence. On January 23, 2020, when he was on STEMI call, 65-year-old Patient C was brought in by paramedics after a serious heart attack. AR 1312. She had a history of hyperlipidemia, hypertension, and obesity. Laird criticized Aleman for incorrectly identifying the infarct-related artery as the left anterior descending coronary (LAD) when it was the first diagonal branch of the LAD. AR 8181, 710. However, the record establishes that Aleman correctly identified the occluded artery as the diagonal branch of the LAD. AR 1321, 4040. His report states: “STEMI LAD, 100% [occlusion] FIRST DIAGONAL…” AR 4057, 1321. His first six interventions were at the diagonal branch, indicating he fully recognized the infarcted artery. AR 1321. Pet. Op. Br. at 18-19.

Aleman explained that he referred to “LAD territory” in the record to reflect that he was using a guiding catheter for the LAD and a diagnostic catheter for the right coronary. AR 1315. Upon reviewing the procedure log, Laird conceded that Aleman correctly identified the diagonal branch as the infarct artery: “the actual fact that he treated the diagonal first would indicate that he thought the diagonal was the infarct artery.” AR 712. Nevertheless, Laird criticized Aleman’s use of the term the “LAD territory infarct” in his report. AR 714-15. Laird’s stubborn refusal to withdraw his criticism indicates his severe bias and complete lack of credibility. Pet. Op. Br. at 19.

Aleman made six unsuccessful attempts to get a balloon across the first diagonal branch of the LAD. AR 1316-18. He decided to perform a rotational atherectomy to break down the calcified plaque in order to place a stent of the correct size. AR 1322. After the atherectomy, he placed a stent. AR 1323. The first stent he used was a non-covered drug-eluding stent, as a covered stent can lead to sudden death if it fails. AR 1323-24. This stent did not work, so he used a covered stent. 1324-25. After he used the covered stent, the puncture sealed. AR 1325-26. He then notified the intensivist and gave an update on the patient’s condition. AR 1326. Pet. Op. Br. at 19-20.

Aleman argues that when he identified a perforation, he treated it appropriately with a covered stent and a pericardiocentesis. AR1061. Laird opined that Aleman used the wrong size stent and balloon, which caused the perforation. However, the evidence showed that Aleman used the correct size balloon. Lee explained: “Dr. Aleman used a 3.5 millimeter diameter stent. That is probably the appropriate size stent for the vast majority of patients with proximal LAD disease,” noting that perforation is a known complication that does not necessarily indicate any mishandling of the case. AR 1052. Pet. Op. Br. at 20.

The short answer is that the Hearing Panel found Lee’s testimony less persuasive than Laird’s for Aleman’s quality of care. AR 8556. Aleman paid Lee to support him, and Lee overreached by opining that all care that Aleman administered was optimal. AR 8556. Laird’s opinions may not be fully correct, but they were sufficient to lead the MEC to conclude that failure to summarily suspend Aleman might result in imminent danger to patients. AR 8556. These credibility findings mean that Laird’s opinion concerning Aleman’s use of the term the “LAD territory infarct” and use of the wrong size stent and balloon, causing the perforation, is substantial evidence. See Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1074.

Aleman argues that, at the request of Aroutounian, the admitting physician, he contacted Roberts for a surgical consult for Patient C by putting a consult note in the record. AR 1332-33. At around 7:06 p.m., the time the surgical consult was entered into the record, Aleman called the ICU regarding the surgical consult and discussed the case with Roberts. AR 1333-34. Pet. Op. Br. at 21.

Aleman notes that the MEC claimed that he did not request a surgical consult. Roberts provably lied to the MEC at an April 9, 2020 meeting when he denied that Aleman reached out for a surgical consult for Patient C. AR 8191. Roberts spoke up after Aleman had already been excused from the meeting. AR 1348. He told the MEC that Aleman’s statement was false and that the ICU intensivist asked Roberts to contact Aleman. AR 8191. Roberts further stated that Aleman was reluctant to come to the ICU and had to be asked to come. Pet. Op. Br. at 20.

Aleman argues that the MEC gave great weight to this issue. The MEC’s minutes indicate that it felt Aleman’s dishonesty reflected his overall lack of accountability. AR 8191. Drs. Melidonian, Gibbs, Alexanian, Balian, and Roberts acknowledged that this was a major issue for the MEC. AR 186-87, 539, 578-79, 775-76. It was unreasonable for the MEC to have given this issue great weight, as these claims of deception were made without giving Aleman a chance to respond. Pet. Op. Br. at 20-21.

Again, Aleman focuses on the wrong entity. The court agrees that the MEC should not have considered Roberts’ evidence at its April 9, 2020 meeting because Aleman was not given an opportunity to respond (AR 8191), but the same evidence was presented to the Hearing Panel. See AR 532, 534. Roberts testified at the hearing and Aleman had an opportunity to respond to his testimony.

Aleman also attempts to discredit Roberts, arguing that the timing of the consultation in the records proves that Roberts was lying. Roberts testified that he was sure he examined Patient C at about 5:30 p.m. AR 534-35. He claims he saw the patient after receiving a call from Shirvanian, but Shirvanian’s medical note contains no reference to Roberts. AR 534-35, 4046-49. Shirvanian did note that at 1:52 p.m., he “immediately discussed with Dr. Aleman…” AR 4046. Pet. Op. Br. at 21.

The medical record shows that Aleman requested a surgical consult for Roberts at 7:06 p.m. AR 4712. Roberts’ medical note indicates that he performed a consultation at 8:54 p.m. AR 4051. Roberts’ note indicates the patient’s vitals, and they match exactly the patient’s vitals taken at 8 p.m. AR 4051, 4334. The patient’s earlier vitals were very different. AR 4325-28. Roberts’ note only thanks Artyounian for the referral, not Shivanian. AR 4052. From these records, Aleman concludes that Roberts’ testimony is simply false. Pet. Op. Br. at 21.

The Hearing Panel found only that the witness testimony and medical records raised significant concerns about Aleman’s judgment and technique in his management of Patient C. AR 8554-55. Thus, it is not clear whether it found Roberts credible. The court has no independent opinion whether Roberts or Aleman is correct about the initiation of a surgical consultation and there is not substantial evidence on this issue.

The charges for Patient D were that Aleman (a) performed an unnecessary atherectomy in the wrong vessel, (b) caused a perforation which he failed to timely recognize and exacerbated by placing a bare metal stent at the site rather than a covered stent, and (c) incorrectly reported the site of the perforation. AR 8243-44.[17]

Laird opined that Aleman performed an unnecessary atherectomy on Patient D (AR 8180), causing a coronary perforation that he did not initially recognize and then placed a bare metal stent at the site of the perforation, which likely exacerbated the problem (AR 8180).

Aleman argues that Laird’s opinion that Aleman performed an unnecessary atherectomy has no weight. Patient D had unstable angina and ischemia. AR 1335. The patient’s physician, Dr. Dalinger, had placed a stent years before and Patient D now had a total occlusion of the LAD. Ibid. Aleman did an intravascular ultrasound on Patient D, revealing the amount of calcium was prohibitive and the stent was under-deployed. AR 1338. He performed a rotational atherectomy based on the prohibitive amount of calcium to deploy the correctly sized stent. AR 1338. He then ballooned, dilated, and stented the diseased part of the vessel. AR 1339. Pet. Op. Br. at 21-22.

Lee, one of the world’s leading experts on atherectomy,[18] explained that the atherectomy was necessary under the circumstances. AR 1055-56. Lee opined that an atherectomy was warranted based on the intravascular imaging, which revealed heavy calcification of the arteries on both sides, requiring atherectomy to remove the calcification to be able to successfully place a stent, also lowering the risk of stent thrombosis and restenosis. AR 1056. Laird admitted he never reviewed the intravascular ultrasound, rendering his opinion worthless. AR 1442-43. Pet. Op. Br. at 22.

Although Laird opined that Aleman failed to recognize a perforation in a timely manner and exacerbated it by placing a bare metal stent instead of a covered stent, in fact Aleman found a pinpoint puncture of the vessel immediately. AR 1340. The first stent that he attempted did not work, but then a covered stent fixed the perforation. AR 1342. Laird also speculated on the timing of the perforation based on his claim that the imaging “probably” indicates “some contrast stain outside the artery.” AR 678. Based on the presence of blood outside the artery, Laird speculated that Aleman did additional stenting and ballooning after the perforation. AR 678. Pet. Op. Br. at 22-23.

Laird initially stated that, pursuant to the standard of care, the use of a covered stent rather than a bare metal stent was a judgment call. AR 684. He later contradicted that testimony and averred the standard required use of a covered stent, only to later admit, when pressed by a panel member, that it was more of a judgment call. AR 685. Laird was simply not a credible witness and was patently biased. Pet. Op. Br. at 23.

Lee, on the other hand, testified that a covered stent carries two serious risks: stent restenosis and stent thrombosis, associated with acute myocardial infarction or death. AR 1057. Lee praised the decision to employ the more conservative method first before the riskier intervention. AR 1056-58. As conditions changed, a covered stent was placed, which was well within the standard of care. Pet. Op. Br. at 23.

The Hearing Panel found that the witness testimony and medical records raised significant concerns about Aleman’s judgment and technique in his management of Patient D, including his judgment and technique in performing rotational atherectomy. AR 8554-55. The Hearing Panel concluded that Lee’s testimony as to Aleman’s quality of care was less persuasive than Laird’s. AR 8556. Laird’s opinions may not be fully correct, but they were sufficient to lead the MEC to conclude that failure to summarily suspend Aleman might result in imminent danger to patients. AR 8556. The Appeal Panel concurred. AR 8446.

Thus, it seems clear that the Hearing Panel (and Appeal Panel) credited Laird’s testimony that Aleman performed an unnecessary atherectomy on Patient D (AR 8180), causing a coronary perforation that he did not initially recognize and then placed a bare metal stent at the site of the perforation, which likely exacerbated the problem (AR 8180). This is substantial evidence.

The Hearing Panel found that the Cardiology Committee reviewed several of Aleman’s cases in 2017 and 2019 prior to the FPPE. AR 8555. The Cardiology Committee treated the 2017 cases as opportunities for education and improvement and cited concerns in four of the nine cases from 2018 and 2019 but did not impose any discipline. AR 8555. Between November 2019 and February 23, 2020, five of Aleman’s cases triggered the FPPE. AR 8555. The documentary evidence demonstrated a history of complaints about Aleman’s behavior and lack of professionalism. AR 8555. Aleman received counseling for these complaints. AR 8556. Disruptive physician behavior can adversely affect patient care if it makes other staff reluctant to work with the physician. AR 8557. The Appeal Panel agreed. AR 8445.

Aleman does not address his unprofessional behavior. There is substantial evidence of Aleman’s unprofessional behavior which can adversely affect patient care.

The Petition is denied. The Hospital’s counsel is ordered to prepare a proposed judgment, serve it on Aleman’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 21, 2023 at 1:30 p.m.

[1] The parties committed a series of errors in their briefing. Aleman had leave to file an oversized 20-page brief and abused this privilege by filing a 21-page opening brief. The court has exercised its discretion to consider only the first 20 pages, which means the issue of retaliation on page 21 of the opening brief is waived. The footnotes in Hospital’s opposition violate the 12-point type requirement of CRC 2.104, and the court has not considered them.

The trial notebook lodged by the parties does not include a bates-stamped version of the Hearing Panel decision as ordered by the court. It also does not include the Appeal Panel’s decision at all. The Joint Appendix further is missing numerous pages cited in the parties’ briefs. The parties’ counsel is admonished to follow the court’s orders in future cases and to ask questions if they do not understand what is required.

[2] Neither party explains this acronym.

[3] The parties cite numerous pages that were not included in the Joint Appendix. The court also has found other pages (AR 128, 255-56, 349, 526, 530, 556, 619, 674, 743, 802, 900, 1008, 1051, 1113, 1377, 3582, 7981) that are relevant and have been reviewed.

[4] An intensivist is a physician working in the Intensive Care Unit (“ICU”).

[5] Aleman was not on the STEMI panel at the time, but his partner, Rafie, was on call and asked Aleman to see the patient in the ER. AR 252.

[6] The parties do not define this acronym.

[7] Aleman testified that he learned through other witness testimony that Ayvazian had already admitted Patient 1 to the Hospital even before the second troponin test, so it was not like Ayvazian was waiting for Aleman to tell him to admit Patient 1. AR 1252.

[8] As attachment A to its post-hearing brief, the MEC included histories of (1) Aleman’s prior issues with judgment, responsiveness, and adherence to protocols based on peer review fallouts and (2) unprofessional behavior between 2014 and 2019. AR 8351-59.

[9] For convenience, the court will refer to the Appeal Panel decision in lieu of the Board’s decision adopting it. The court also will sometimes refer to the Hearing Panel decision with which the Appeal Panel concurred.

[10] Aleman points out that Alexanian testified that he had pre-written the suspension letter and handed it to Aleman when they met on March 13, 2020 to discuss the cases. AR 219-22. However, Alexanian explained that the urgency of the situation required him to prepare the letter ahead of time. He would not have given it to Aleman if he was persuaded that the information he had was incorrect. AR 220-21.

[11] Aleman does not challenge the Appeal Panel decision as not supported by its findings. He only argues that the decision is not supported by substantial evidence.

[12] Aleman does not contest the propriety of the conditions if the charges are supported by substantial evidence.

[13] The nursing notes reflect that Patient 1 was adamant that he wanted to leave against medical advice before Aleman saw him. AR 7756.

[14] Aleman argues that the MEC also faulted him for failing to identify a myocardial infarction, but substantial evidence does not support this charge because Aleman presented extensive evidence that Patient 1 was not having an emergent infarction. As explained by Lee, it is critical to look at past EKGs in order to accurately determine whether the patient had suffered an acute injury. AR 1020. Aleman reviewed all historical EKGs and rhythm strips of Patient 1 from 2018 and his 2018 EKGs were similar to the March 9, 2020 EKG. AR 1020, 1245. Based on the comparison, Aleman correctly ruled out an acute STEMI. AR 1020. Laird was never provided with Patient 1’s prior EKGs. AR 1020-21. Without an historical comparison, Laird erroneously concluded that Patient 1 was having an inferoposterior wall myocardial infarction. Pet. Op. Br. at 16.

At the time Aleman treated him, Patient 1’s chest pain and shortness of breath had gone away. AR 1023-24. Based on the patient’s history and symptoms, Laird should have ruled out a STEMI. AR 1027. In addition, the first troponin test at 11:11 a.m. was at .02, in the normal range. AR 7444. The second troponin at 2:43 p.m. was slightly elevated at 0.62. AR 7436. Lee testified the increase from 0.2 to .062 over that period was inconsistent with a STEMI. AR 1025. He opined that the patient did not need to be emergently brought to the Cath Lab and could have been brought within the next 24 hours. AR 1025-26, 1031. Pet. Op. Br. at 16.

This argument is a red herring. Although Laird opined that Aleman failed to diagnose a myocardial infarction (AR 8149), neither the Hearing Panel nor the Appeal Panel faulted Aleman on this ground. See AR 8552-53, 8442-43.

[15] Aleman notes that Lau observed bleeding in the oral pharynx but admitted that he did not look closely enough to locate where the trauma was. AR 422. Patient 2 was receiving a number of anti-platelet medications, anticoagulants, and antithrombotics, all of which can cause bleeding, individually or in combination. AR 1040-41, 1289. Aleman concludes that it was not possible to conclude that Aleman’s intubation caused oral trauma. Pet. Op. Br. at 18.

Lau testified that he did not look closely but he thought the injury was caused by Aleman’s intubation attempt. AR 422, 7982. In any event, the Hearing Panel only concluded that Aleman may have caused the injury. AR 8554.

[16] Laird also opined that Aleman should have given Patient 2 appropriate induction medications before attempting to intubate a conscious patient. AR 7982.

[17] The MEC also charged Aleman with performing the atherectomy in the wrong vessel but presented no supporting evidence because Laird did not testify on the issue. In fact, the correct vessel was identified. AR 1338. Pet. Op. Br. at 22, n. 10.

[18] Lee has performed 400-500 in his career. AR 1055.