Judge: Mary H. Strobel, Case: 19STCP05438, Date: 2022-07-28 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 19STCP05438    Hearing Date: July 28, 2022    Dept: 82

            Petitioner Jitsen Chang, M.D. (“Petitioner”) petitions for a writ of administrative mandate directing Respondents Providence Saint John’s Health Center (“Hospital”) and Medical Staff of Providence Saint John’s Health Center (“Medical  Staff”; collectively “Respondents”) to set aside a final decision of Hospital’s Board of Directors (“Board”) denying Petitioner’s administrative appeal of an adverse decision of the Hospital’s Judicial Review Committee and affirming the decision to terminate Petitioner’s medical staff membership and clinical privileges at Hospital. 

Background

Petitioner’s “Last Chance” Status at Hospital

            Petitioner is an obstetrician-gynecologist (“OB/GYN”).  (AR 3970.)[1]  By letter dated September 14, 2015, he was conditionally reappointed to the Medical Staff.  (Ibid.)  The conditional reappointment was due to recent incidents involving Petitioner’s behavior and its impact on patient care.  (Ibid.)  Petitioner’s reappointment was conditioned upon him “entering into a behavior contract with a mentoring program and 100% focused retrospective review.”  (Ibid.) 

            The Behavioral Agreement dated October 31, 2015, executed by Petitioner, states inter alia:

During Dr. Chang's service as a provisional Medical Staff member at the Hospital, he has been Involved in incidents of unacceptable and unprofessional behavior. Dr. Chang does not deny that the documented incidents occurred, and acknowledges that his behavior in those incidents does not meet the required standards of behavior for a Hospital Medical Staff member ("Medical Staff Standards").

….[¶]

Dr. Chang acknowledges that he is being given "one last chance" and has willingly and knowingly accepted the conditions herein.

The MEC, the Hospital, and Dr. Chang understand and acknowledge that any failure by Dr. Chang to comply with Medical Staff Standards, or any other breach of this Agreement, will subject him to corrective action, including but not limited to, termination of his Medical Staff membership and privileges at the Hospital.

(AR 730-731, 3970-71.)

Among other terms and conditions, Petitioner agreed that: “[He] shall be truthful and forthright and shall not, under any circumstances, be evasive, make any misrepresentations ... to any individual in the Hospital, including but not limited to nurses, administrative staff or other employees, Medical Staff members, patients or visitors. These prohibitions shall include Dr. Chang 's responses to any individual who contacts him to discuss concerns or issues regarding his patients or compliance with this Agreement.”  (AR 3971, 731.)

February 9, 2016 Notice of Summary Suspension

            On February 9, 2016, the Medical Executive Committee (“MEC”) of Hospital summarily suspended and recommended terminating Petitioner’s Medical Staff membership and privileges.  The summary suspension was based on the MEC’s review of two patient cases, which are referred to in the Board’s decision as the LEEP Case and the Twin Case.  (AR 3971, 753-754; see 3974-3981 and Oppo. 7-8 [summaries of LEEP Case and Twin Case].)    

MEC Continues Summary Suspension and Recommends Termination After Learning of Third Case

            On February 22, 2016, the MEC voted to uphold the summary suspension and recommended termination of Petitioner’s Medical Staff membership and privileges.  In addition to the LEEP Case and Twin Case, and concerns about Petitioner’s honesty, the MEC also considered a third case, which is referred to in Board’s decision as the PE Case.  (AR 788-790, 3981-3989.) 

The PE Case arose from Petitioner’s treatment, in February 2016, of a pregnant woman who presented to the Emergency Department with suspected pulmonary embolism, a potentially life-threatening condition. (AR 767; see Oppo. 8-9 and AR 3981-3989 [summaries of PE Case].) 

Following the PE Case, Petitioner met with the MEC twice to discuss his patient care.  MEC found that Petitioner’s explanations were inconsistent, defensive, and showed “lack of insight.”  (AR 788-789.)  MEC also determined that Petitioner’s care in the LEEP Case, Twin Case, and PE Case did not meet the standard of care at Hospital.  (AR 790.)

Judicial Review Committee Upholds the MEC’s Recommendations

            Petitioner requested a hearing to challenge the MEC’s actions. The hearing was held before a Judicial Review Committee (“JRC”) comprised of five other physicians on the Medical Staff. (AR 2414–2418.) After multiple evidentiary hearing sessions, the JRC unanimously found that the MEC’s decisions to summarily suspend and terminate Petitioner’s privileges were reasonable and warranted. (AR 2411.) The JRC concluded that Petitioner’s clinical care fell below the standard in each of the three cases; that he had been dishonest; and that he had already been on “last chance” status when these cases occurred. (AR 2400–2412.)

Appellate Review Committee and Board Uphold the JRC Decision After Exercising Their Independent Judgment

Petitioner appealed the JRC’s decision to an Appellate Review Committee, a subcommittee of the Hospital Board. Exercising its independent judgment under the Bylaws, the Appellate Review Committee unanimously found that Petitioner failed to establish the grounds for appeal. (AR 3786; Bus. & Prof. Code, § 809.05; AR 3530–3531.) The Appellate Review Committee recommended upholding the MEC’s actions. (See AR 3786–3788.)

The Hospital Board, also exercising its independent judgment, unanimously approved the Appellate Review Committee’s recommendations. (AR 4005–4006; Bus. & Prof. Code, § 809.05; AR 3531.) The Hospital Board found that the MEC proved that Petitioner’s care was below standard and that he was untruthful in the PE Case. (AR 3981–3989.) As to the LEEP and Twin Cases, the Hospital Board found that the MEC had not met its burden of proof that Petitioner’s care was substandard, but that Petitioner had been unacceptably dishonest regarding both cases. (AR 3989–3996.)  Hospital Board did not find that Petitioner met the standard of care in either the LEEP or Twin Case; it only found that the MEC failed to meet its burden of proving substandard care on those two cases. (AR 3976; AR 3981.) The Hospital Board found that (a) Petitioner’s “last chance” status; (b) substandard clinical care in the PE Case; and (c) dishonesty in all three cases rendered the summary suspension and recommended termination of Petitioner’s privileges reasonable and warranted. (AR 4000–4002.)

Writ Proceedings

             On December 17, 2019, Petitioner filed his verified petition for writ of administrative mandate.  Respondents answered.

            On May 5, 2021, Petitioner filed his opening brief in support of the petition.  On July 13, 2021, Respondents filed an opposition brief.

            On January 4, 2022, the court granted the motion of Petitioner’s attorney, John Harwell, to be relieved as counsel of record for Petitioner.  The court entered an order relieving Harwell as counsel on January 7, 2022, which was served on Petitioner on January 7, 2022.

            On January 20, 2022, the court held a status conference, which was attended by Petitioner, in pro per, and counsel for Respondents.  The court granted Petitioner’s oral request for a continuance of the hearing on the writ petition.  The hearing was continued to July 28, 2022.  The court ordered Petitioner to file his reply brief 15 days before the hearing and to lodge the administrative record and joint appendix by July 20, 2022. 

            Petitioner has not filed a reply brief in support of the writ petition. 

On July 20, 2022, Respondents lodged the administrative record and joint appendix.

Standard of Review

Although the opening brief also cites to CCP section 1085, writ review of the Board’s decision, after a hearing required by law, is governed by CCP section 1094.5.  (See Opening Brief (“OB”) 1; Oppo. 10.)  Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion.  An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence.  (CCP § 1094.5(b).)

In cases arising from decisions of “private hospital boards . . . abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5(d).) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), 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.)  “[B]ecause the hospital’s 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.”  (Michalski v. Scripps Mercy Hosp. (2013) 221 Cal.App.4th 1033, 1042.)  “The court must consider the evidence in the light most favorable to the [Hospital Board], giving [it] the benefit of every reasonable inference and resolving conflicts in support of the judgment.” (Huang v. Bd. of Dir. (1990) 220 Cal.App.3d 1286, 1294.) “The court is without power to judge the effect or value of the evidence, 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.” (Ibid.)

The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions.  (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.)   “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (See Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)   A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742; see Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)   “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.”  (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) 

Analysis  

“[I]n examining a hospital board's decision, the superior court must determine two issues. [Citations.] ‘First, it must determine whether the governing body applied the correct standard in conducting its review of the matter. Second, after determining as a preliminary matter that the correct standard was used, then the superior court must determine whether there was substantial evidence to support the governing body's decision.’ ”  (Michalski v. Scripps Mercy Hosp. (2013) 221 Cal.App.4th 1033, 1042.) 

Board Applied Correct Standard in Conducting Its Review

Instead of challenging the Board’s decision and findings, Petitioner primarily argues that there were shortcomings in the JRC proceedings and decision.  (OB 3-10.)  The court analyzes Petitioner’s arguments about the JRC proceedings and decision below.

Petitioner has not argued that Board applied an incorrect legal standard in reviewing the JRC decision.  While Petitioner has waived argument on this point (see Pfeifer, supra, 211 Cal.App.4th at 1282), the court also concludes, based on its independent review, that the Board applied the correct legal standard.  Specifically, after exercising its independent judgment on the record and applying the burden of proof and legal standard set forth in the Medical Staff Bylaws, Board found that (a) Petitioner’s “last chance” status; (b) substandard clinical care in the PE Case; and (c) dishonesty in all three cases rendered the summary suspension and recommended termination of Petitioner’s privileges reasonable and warranted. (AR 3967-4002.)

Board’s Decision Is Supported by Substantial Evidence

            For the most part, Petitioner has not challenged the findings made by the Board or argued that those findings are not supported by substantial evidence.  “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (See Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Huang v. Bd. of Dir. (1990) 220 Cal.App.3d 1286, 1294 [same as applied to hospital board decisions].)   For all findings not challenged or discussed in the opening brief, Petitioner necessarily fails to meet his burden under CCP section 1094.5 to show a prejudicial abuse of discretion.  Furthermore, based on its review of the record and consideration of the parties’ arguments, the court concludes that all of Board’s findings are supported by substantial evidence. 

Petitioner contends that Board “dismissed the idea that the MEC had proven any instances of practice below the standard of care or medical actions which might have been harmful to patients.” (Mot. 10:15–19.) Petitioner misstates the record.  While the Board found the MEC did not prove by a preponderance that Petitioner’s care fell below the standard of care for the LEEP and Twin cases, it specifically found that the MEC proved by the preponderance of the evidence that Petitioner’s care in the PE Case “was unacceptable and, indeed, dangerous” and that as a result, Petitioner “consistute[d] an imminent threat to patient welfare.” (AR 3996.) 

Petitioner does not otherwise challenge this Board findings about the PE Case.    Board found that Petitioner endangered the patient when he “considered and prepared for an elective cesarean section prior to ruling out a pulmonary embolism or diagnosing the etiology of the patient’s symptoms despite the absence of any indication for a cesarean section.” (AR 3983; see also AR 3988:4-8.) The record contains substantial evidence to support the Board’s finding. “Everyone who came in contact with this case was of the opinion that Dr. Chang was going to” do a C-section before ruling out pulmonary embolism, (AR 3983) and cited to evidence supporting this conclusion.  (see e.g., AR 261, Hearing Transcript (“HT”) 159:4–25; AR 0335– 0336, HT 311:20–312:16, HT 313:19–314:13; AR 411, HT 447:2–448:22; AR 967.) Witnesses testified that Petitioner’s decision to proceed with the C-section created unnecessary risks for the mother and baby.  In particular, the Board quoted at length from the testimony of Dr. Moran, and the letter from anesthesiologist Shah.   (AR 0411–0412, HT 447:10–449:1; see also AR 3986-87 [written statement of Dr. Swapneel Shah].)  This testimony and medical records are substantial evidence supporting Board’s findings as to the PE Case. 

Board’s detailed findings that Petitioner was untruthful are also supported by substantial evidence.  As examples, in the LEEP Case, Petitioner told the MEC there were no complications, despite the numerous complications he documented in the operative report. (AR 3989.) In the Twin Case, Petitioner gave inconsistent explanations in his operative notes, written peer review responses, peer review meetings, and JRC testimony about several issues, including his use of forceps to deliver the first twin, the second twin’s position when he told the patient to push, and how the second twin was delivered. (AR 3990–3993.) In the PE Case, Petitioner also gave inconsistent statements to the MEC, OB/GYN Committee, and the JRC about his management of the plan of care. (AR 3993–3995.)  Petitioner has not challenged any of these findings with citation to the record.  The medical records and testimony upon which Board relied are substantial evidence.

Petitioner argues there was contrary evidence regarding his truthfulness.  Whether there is contrary evidence does not end the analysis.  The court must determine “whether there is any substantial evidence, contradicted or uncontradicted, which supports the finding."  Huang v. Board of Directors, 220 Cal. App. 3d 1286, (Huang, supra, 220 Cal.App.3d at p. 1294 [court does not “weigh the evidence” or “resolve conflicts in the evidence”].)  Here, Board’s findings of dishonesty are amply supported by substantial evidence, as discussed.

In any event, the contrary evidence cited by Petitioner does not undermine Board’s findings.  The “contrary evidence” Petitioner identifies is testimony on the issue of whether Petitioner falsely reported patient consent to a cesarean section. (OB 10:20–11:11.))   In light of the whole record, this testimony is insufficient to support a conclusion that any Board finding is not supported by substantial evidence. Further, the Board did not identify patient consent as one of the issues as to which Petitioner was dishonest. (See AR 3989–3995.)

The Board’s factual findings and conclusions are supported by substantial evidence.  Petitioner fails to show any prejudicial abuse of discretion in the Board’s findings. 

Petitioner Received a Fair Hearing

Petitioner contends that the procedures leading to the JRC decision were flawed and that “Board’s decision was tainted by bias, prejudice, ignorance and pre-determination so as to be unreliable.”  (OB 3-10.)

“Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’”  (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.)  Procedural errors, “even if proved, are subject to a harmless error analysis.”  (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.)  “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.”  (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

Petitioner’s fairness arguments are directed at proceedings before the JRC, not before the Board.  However, as Petitioner acknowledges, “judicial review of this case is of the Board’s decision, not the JRC [decision].” (OB 3.) A writ petitioner may only seek judicial review of a “final administrative order or decision.” (CCP § 1094.5(a).)  In the case of peer review, the “final decisions” are those issued by the “hospital boards or boards of directors”—not the JRC. (CCP § 1094.5(d).)  While Petitioner’s arguments about the fairness of the JRC proceedings are arguably misplaced, the court has considered all of Petitioner’s arguments and concludes that Petitioner received a fair hearing before the MEC, JRC, and Board.

Notice and Opportunity to Respond; and Evidentiary Rulings of the Hearing Officer

            Petitioner received notice of the deficiencies alleged by MEC and opportunity to respond before MEC, JRC, and Board in multi-day evidentiary hearings.  (See e.g. AR 717-721, 407, 495, 571, 647; see generally Oppo. 14-15.)  Petitioner makes no argument to the contrary. 

            Petitioner challenges certain evidentiary rulings of the JRC hearing officer, including that he allowed MEC to introduce evidence not contained in the notice of charges; excluded “relevant” questions of Petitioner’s attorney to an expert; admitted documents allegedly protected by Petitioner’s attorney-client privilege; and admitted a “surprise exhibit.”  (OB 7-9.)  Petitioner does not show, with record citations, that Board’s decision relies on any of these evidentiary rulings or the challenged evidence.  Nor does Petitioner develop an argument that evidentiary rulings with respect to counsel’s questions could have possibly changed the result before the Board.  Thus, Petitioner does not show prejudice.  (See Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497.) 

            Furthermore, as argued persuasively by Board and not rebutted by Petitioner in a reply, Petitioner fails to show that the hearing officer prejudicially abused his discretion in any of these evidentiary rulings.  (Oppo. 15-17.)  The Notice of Charges explicitly raises the topic of Petitioner’s 2015 conditional reappointment.  As correctly ruled by the hearing officer, testimony about the 2015 conditional reappointment was relevant background information.  (AR 267.)  The hearing officer analyzed the claim of attorney-client privilege and concluded it had been waived by Petitioner’s transmittal of the document to a third party who “was not reasonably necessary to accomplish” the purpose of Petitioner’s legal representation. (AR 2426.)  Petitioner does not address the reasoning behind this ruling or develop any argument showing it was erroneous.  The peer review letter from another hospital which was admitted into evidence was properly received as impeaching Petitioner’s testimony that he had never been subject to peer review for his use of forceps at the other hospital.  (Oppo. 17; see AR 1044-46; 571-572.)  Petitioner’s other arguments about evidentiary rulings are similarly unpersuasive, as argued by Respondents.   (Oppo. 15-17.) 

            Bias

Petitioner argues the JRC was biased.  However, his arguments are conclusory without evidentiary support.  “Absent a financial interest, adjudicators are presumed impartial.”  (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219.)  “Bias and prejudice are never implied and must be established by clear averments.”  (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.)  Petitioner must show “‘an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over their claims.’”  (Nasha LLC v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483.)  Petitioner does not satisfy that standard with respect to JRC or any specific decisionmaker involved in his case.

Petitioner accuses JRC member Dr. Kelly of being rude and cites to a portion of the hearing transcript where Dr. Kelly allegedly interrupts Petitioner’s answer to a question.  Notably, Dr. Kelly states “were [sic] going to hear about that later.”  Petitioner also quotes a portion of the transcript in which Dr. Kelly expresses concern that Petitioner’s actions “could hurt somebody,” calling Petitioner’s judgment “unconventional and in many cases frightening.” (OB 4-5, citing AR 440-442) The cited statements of Dr. Kelly do not establish bias under the relevant legal standard. 

Petitioner also cites as evidence of bias that Dr. Kelly pointed out to an expert that the medical literature reveals “multiple studies showing increased rate of preterm labor with LEEP procedures at 32 weeks.”  (OB 5, citing AR 661.)  Petitioner contends Dr. Kelly violated the “rules of objectivity” but does not provide any support for the concept a  JRC member could not question an expert regarding medical literature.  Dr. Kelly’s questions to an expert do not suggest bias.  To the extent Petitioner contends that Dr. Kelly improperly introduced new evidence, he fails to show that any new evidence was actually relied upon by JRC.  Petitioner also fails to show any prejudice, as the Board’s decision does not rely on Dr. Kelly’s questioning in its decision. (AR 3976.)

Finally, as another indication of bias, Petitioner mistakenly ascribes a personal opinion expressed by a MEC witness as an opinion expressed by a JRC member.  As the statement was not made by a JRC member, it does not support a finding of bias.

JRC Applied Correct Burden of Proof

Under the heading “Burden of Proof,” the JRC decision plainly states the burden of proof the JRC applied: “The body whose decision prompted the hearing [the MEC] shall bear the burden of persuading the Judicial Review Committee by a preponderance of the evidence that the action or recommendation is reasonable and warranted.” (AR-2394-2395.) This is the correct burden of proof under the Bylaws and Business and Professions Code Section 809.3. 

Petitioner quotes a statement by Dr. Kelly that “you have to convince us that you have good judgment.” (OB 6, citing AR0440.) In light of the entirety of the decision by the JRC (AR2388-2413) and its analysis of the evidence presented to it, the court concludes the JRC applied the correct burden of proof and made sufficient findings in support of its decision. 

Based on the foregoing, Petitioner received a fair hearing before the MEC, JRC, and Board.  Petitioner has not shown he was denied a fair hearing or that Board prejudicially abused its discretion in the final decision. 

Conclusion

The petition is DENIED.