Judge Mary H. Strobel, Case 22STCP01103 2023-04-20 Tentative Ruling

Petitioner Daniel Bethencourt, M.D. (“Petitioner”) petitions for a writ of administrative mandate directing Respondents Providence Long Beach Memorial Medical Center (“Hospital”), Hospital’s Board of Directors (“Board”), and the Medical Executive Committee of the Medical Staff of Hospital (“MEC”; collectively, “Respondents”) to set aside a final decision of 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.

On March 19, 2012, Petitioner performed an aortic valve replacement (“AVR”) on patient AL. (AR 710.) AL was initially stable postoperatively, but developed severe bleeding and died the next morning. (Ibid.) AL was a well-known, former physician in the Hospital and his death was concerning to other physicians. (AR 54165.)

Petitioner told the coroner that AL’s cause of death was asthma. (AR 527-535.) A transcript of this conversation is found in the record. (Ibid.)

An MEC ad hoc committee investigated Petitioner’s care of AL in 2013. (AR 54239.) Its expert physician opined that Petitioner’s “failure to re-explore this patient in a timely fashion constitutes a failure in clinical judgment which directly led to what is an unfortunate but avoidable outcome.” (AR 500, 505.) Petitioner told the MEC that the coroner “instructed [him] to fill out the cause of death as ‘asthma.’” Petitioner indicated that, while he was puzzled by this instruction, he did as he was told. (AR 52654.)

The MEC ad hoc committee found that Petitioner gave “unacceptable care [to AL] with inadequate volume replacement and poor judgment in not returning the patient to the O.R. [operating room].” (AR 52802.) The committee found multiple other problems in the case, including “very poor documentation in the medical record.” (Ibid.) According to the committee’s report, Petitioner “agreed that in retrospect after reviewing the record with us that he should have returned the patient to the O.R.” (Ibid.)

With respect to the death certificate, the committee felt it had no reason to doubt Petitioner’s statement that the coroner told him to put asthma as the cause of death. (Ibid.) The committee apparently did not have the transcript of Petitioner’s call with the coroner, which is found in the administrative record. (AR 527-535.) The committee recommended that the case be closed with no further action. (AR 52802.) As discussed below, Respondents later found and substantial evidence supports that Petitioner was dishonest in his statements to the coroner of the cause of AL’s death.

On February 18, 2013, the MEC informed Petitioner that the MEC, in a divided vote, elected to uphold the recommendation of the committee to close the case. MEC warned Petitioner: “However, it is expected that future cases will not fall below the standard of care and that the documentation and timeliness of your medical records will adhere to our medical staff bylaws and rules and regulations.” (AR 526.)

Concerns about Petitioner’s patient care at Hospital continued after the MEC closed the investigation into the treatment of AL. (See Oppo. 7-9, citing record.) As examples, interdisciplinary peer review by the Greeley company (“Greeley”) found “questionable” or “not appropriate” physician care in several of Petitioner’s cases. (AR 541.) In February and March 2016, patients VM and MP died after surgeries performed by Petitioner. (AR 632-41, 731.) Hospital later found that Petitioner’s care of these patients was below the standard of care, as discussed in the Analysis section below. Hospital also searched medical records and found that Petitioner had caused seven liver lacerations on multiple patients over a 10-year period, which is “excessive and substandard.” (AR 11, 54057, 56313.)

MEC Investigates; Issues a Summary Suspension; and Then Recommends Termination of Petitioner’s Medical Staff Membership and Clinical Privileges

On April 11, 2017, the MEC summarily suspended Petitioner’s clinical privileges because of “serious concerns about clinical judgment and decision making in a number of cases that must be investigated immediately because they may represent imminent harm to patients.” (AR 626-627.) On April 25, 2017, the MEC informed Petitioner that it would lift the summary suspension and impose limited summary restrictions to prevent imminent danger to the health of patients. Among others, Petitioner was restricted from performing robotic surgical cases until further notice. (AR 628-31, 642-45.) In response to the limited restrictions, Petitioner ended his practice at the Hospital. (AR 54181.)

The MEC obtained a review of Petitioner’s medical records by Mercer Medical Audit (“Mercer”). On December 11, 2017, and March 8, 2018, Mercer issued reports finding that Petitioner’s patient care fell below the standard of care in multiple instances, including with respect to the high number of liver lacerations during surgeries. (AR 699-724, 748-756.) The Mercer reports were written by Dr. Sachin Shah, a specialist in cardiothoracic surgery, with a subspeciality in robotic and minimally invasive cardiothoracic surgery and the Chief of Cardiothoracic Surgery at a major VA medical center. (AR 724; see also Oppo. 10, fn. 3; AR 55165, p. 3406; AR 55279, p. 3561.) MEC also obtained an expert report regarding Petitioner’s patient care from Dr. Michael Argenziano, who found several “recurring themes that raised concerns,” including “repeated examples of rare complications such as liver laceration.” (AR 759-766.)

On January 10, 2018, the MEC met to consider the Mercer report and Petitioner’s failure to engage with and abide by the restrictions. (AR 738-40.) The MEC passed a motion to recommend termination of Petitioner’s medical staff membership and clinical privileges. (AR 738-40.)

On or about May 11, 2018, the MEC served on Petitioner a Third Amended Notice of Charges, which made the allegations supporting MEC’s recommendation. (AR 6, 102-127.)

Petitioner requested a hearing to challenge the MEC’s actions. After 31 evidentiary hearing sessions, the Judicial Hearing Committee (“JHC”) issued an October 29, 2020, decision (“JHC Decision”), unanimously concluding that the MEC’s actions were reasonable and warranted. (AR 1-15.)

Petitioner appealed the JHC Decision to an Appeal Board of the Hospital Board. Giving “great weight” to the JHC Decision, the Appeal Board concluded that, with the exception of two minor findings, the JHC Decision “was clearly supported by the preponderance of the evidence” and “there was substantial compliance with the [Bylaws] and applicable California law.” (AR 56319.)

In a February 11, 2022, decision (“Hospital Board Decision”), the Hospital Board adopted the Appeal Board’s decision and affirmed the JHC Decision, concluding “that the JHC’s … decision was supported by the evidence, following a fair procedure.” (AR 56291.)

On March 25, 2022, Petitioner filed his petition for writ of administrative mandate. Respondents have answered the petition.

On March 16, 2023, the court granted Petitioner’s ex parte application to file a 20-page opening brief. The court also granted Respondents leave to file a 20-page opposition.

On February 21, 2023, Petitioner filed his opening brief in support of the petition. The court has received Respondents’ opposition, Petitioner’s reply, the administrative record, and the joint appendix.

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. 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].)

When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) “[The court is] not required to search the record to ascertain whether it contains support for [Petitioner’s] contentions.’” (Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14.) These rules are particularly important in this case because Respondents made numerous, highly technical findings against Petitioner and because the administrative record is more than 57,000 pages in length.

“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.)

“[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.)

The Bylaws and California law require that the Board give great weight to the decision of the JHC and decide whether “there was substantial compliance with [the] Bylaws and applicable law, whether the [JHC] decision was supported by the evidence based on the hearing record, and if the action was taken arbitrarily, unreasonably, or capriciously.” (AR 187 § 10.6.6; see also Bus. & Prof. Code § 809.05(a).) Here, both the Appeal Board and Hospital Board applied this standard in reviewing the JHC Decision. (AR 56291; AR 56319.) Petitioner develops no argument to the contrary.

Petitioner suggests that corrective action could only be taken against him if the MEC proved that he engaged in “negligent care.” (OB 5.) Petitioner cites section 9.1.2 of the Bylaws, which provides in pertinent part as follows:

Whenever the activities or professional conduct of any practitioner with clinical privileges are, or are reasonably like to be: 1) detrimental to patient safety or to the delivery of quality patient care; 2) suggest a breach of ethics through … b) the commission of any act involving dishonesty or corruption which the MEC believes is substantially related to the qualifications, functions or duties of a practitioner; 3) contrary to these Bylaws and R&Rs; or 4) below the applicable professional standards, corrective action against such practitioner may be initiated [by the MEC]. (AR 173.)

Thus, contrary to Petitioner’s assertion, corrective action need not be based on evidence that the practitioner engaged in negligent care. Corrective action can also be based on professional activities are (1) “reasonably like to be … detrimental to patient safety or to the delivery of quality patient care” or (2) acts of dishonesty or corruption related to the qualifications, functions, or duties of the practitioner. Neither of these sub-provisions of section 9.1.2 require a determination that the practitioner’s patient care was below the standard of care.

However, if the MEC takes corrective action based on allegations that the practitioner’s medical care fell below the standard of care, then the MEC would need to prove such allegations with evidence regarding the standard of care. Thus, the court does not agree with Respondents’ argument that peer review proceedings are never concerned with the standard of care. (Oppo. 12.) Med. Staff of Sharp Mem’l Hosp. v Super. Ct. (2004) 121 Cal.App.4th 173, cited by Respondents, involved a summary suspension of a doctor who “had been suffering from severe emotional distress and had engaged in a series of bizarre acts and statements and open hostility towards others.” (Id. at 183.) That case does not stand for the proposition that evidence of substandard medical care can never be relevant to peer review proceedings.

Thus, the relevance of standard of care evidence necessarily depends on the administrative findings at issue. The court considers below Petitioner’s arguments that certain administrative findings are not supported by substantial evidence.

Petitioner challenges the credibility of the MEC’s expert witnesses, including Dr. Argenziano and Dr. Shah. (OB 4-5.)

The JHC made the following general findings regarding witness credibility, among others: “The JHC found the MEC’s percipient witnesses to be credible and duly mindful of the potential consequences of the hearing on a long-serving member of the medical staff. They did not exhibit bias in favor of the MEC or prejudice against Dr. Bethencourt. Drs. Tanios, Shbeeb and Wells testified to the thorough and deliberate process the MEC followed in reaching its decisions to suspend and then restrict Dr. Bethencourt’s clinical privileges and to recommend that his medical staff membership and clinical privileges be terminated. Ms. LeBoeuf presented her data-driven analysis of peer review information for the MEC. Drs. McConnell and Winters testified about their observations and thoughtful expert opinions in connection with the AL and VM cases.” (AR 3.)

“Similarly, the JHC found credible the MEC’s expert witnesses and reports to be

thoughtful, thorough and credible. As an unbiased reviewer selected by MDReview, Dr.

Argenziano’s credentials and the comprehensiveness of his review were impressive. Although he no longer performs robotic cardiothoracic surgery, he was one of the pioneer surgeons in the field and demonstrated continuing expertise and sound judgment in the use of roboticassisted procedures. His report (MECEx 56), as well as the Greeley (MECEx 49) and Mercer (MECEx 50 and 55) reports, were written by unbiased and highly qualified surgeons. The reports reflected a comprehensive review of medical records of the cases in issue.” (Ibid.)

“Dr. Bethencourt’s expert witnesses who practice elsewhere – Drs. Trento, Sutter, Balky, Husam, Murphy, Ad and Grossi – were impressively qualified cardiothoracic surgeons. However, the credibility and relative weight of their testimony was diminished by their longstanding professional relationships with him, their preexisting favorable opinion on his surgical skills, the limitations on the amount of documentary information he selected and provided to them, their reliance on his description of the cases to supplement the medical record, their acceptance of rare adverse complications without more in-depth analysis (e.g., the liver injuries) and their seemingly unwavering commitment to the efficacy of minimally invasive procedures.” (AR 4.)

Petitioner does not show any prejudicial abuse of discretion in the JHC’s findings regarding witness credibility. On substantial evidence review, “[t]he 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.” (Huang v. Bd. of Dir. (1990) 220 Cal.App.3d 1286, 1294.) As noted by Hospital Board, the JHC members “were present for all evidentiary sessions and therefore able to assess the credibility of all the witnesses who testified” and “ask questions.” (AR 56303.) Further, the record amply shows that Drs. Shah and Argenziano, among other MEC experts, were well qualified to give opinions about Petitioner’s patient care. The court does not find that the JHC’s weighing of the witnesses’ credibility, as a general matter and as reflected in the findings set forth above, was unreasonable.

Petitioner asserts that “the MEC did not call Dr. Shah as a witness, depriving Dr. Bethencourt of the opportunity to cross examine him.” (OB 5.) Petitioner develops no argument that Dr. Shah’s written expert reports could not be solid, credible evidence in support of a finding, even though Dr. Shah did not testify in person. Further, as discussed below, Dr. Shah’s reports were oftentimes, although not always, corroborated by testimony of Dr. Argenziano or other physicians.

Further section 10.4.7 of the bylaws provides that the hearing shall not be conducted according to rules of law regarding examination of witnesses or presentation of evidence. “Any relevant evidence including declarations or hearsay shall be admitted by the Hearing Officer if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law.”

The court considers below whether substantial evidence supports the specific fact findings challenged by Petitioner.

Finding A: Petitioner Failed to Appropriately Assess, Consider, Or Respond to Patient Conditions Preoperatively

Finding A(3): “[Patient] MP: … Dr. Bethencourt failed to appropriately assess the condition of the patient’s heavily calcified, ‘porcelain’ aortic root, as described in multiple preoperative imaging reports.” (AR 6.) Substantial evidence supports this finding. Dr. Argenziano testified that porcelain aortas are dangerous contraindications for surgery. (AR 54442, p. 1869.) MP’s calcified, porcelain aortic root was shown on the preoperative catheterization report which the cardiologist, Dr. Witter, had sent to Petitioner a week before MP was admitted into the Hospital. (AR 53066; 18797; 55162, p. 3396; 55431, p. 3879.) JHC could reasonably conclude that Petitioner, as the operating surgeon, should have reviewed this preoperative report even though MP presented for emergency surgery, rather than for the scheduled office consultation.

Finding A(4): “RH: … Dr. Bethencourt failed to diagnose pulmonary hypertension preoperatively and therefore did not appropriately consider the risks associated with a mitral valve replacement by a minimally invasive approach.” (AR 6.) Substantial evidence supports this finding. Mercer opined that Petitioner’s failure to diagnose and manage perioperative pulmonary hypertension was below the standard of care, and Dr. Argenziano corroborated that opinion. (AR 708; AR 54455, pp. 1921-22.) Petitioner highlights a disagreement among experts. (OB 6, citing AR 54994-995, AR 55280.) “When the evidence on an issue conflicts, the decisionmaker is ‘permitted to give more weight to some of the evidence ….’” (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 349.) On substantial evidence review, this court cannot reweigh the expert evidence. (Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1294.)

Finding A(5): “JD: The preponderance of evidence proved that mitral valve repair (MVr) rather than replacement as performed in the second operation would have been the appropriate surgery.” (AR 7.) It is unclear whether substantial evidence supports this finding. Mercer opined that Petitioner’s failure to adequately repair the mitral valve in JD was below the standard of care. (AR 704.) Mercer also opined that, “Mitral repair … confers greater durability than mitral replacement with tissue bioprosthetic.” (Ibid.) Dr. Argenziano had “no concern” with Petitioner’s care of JD. (AR 52806.) It is not clear to the court whether the opinion contained in the Mercer report means that Petitioner should not have performed the replacement procedure after the original repair failed as is implied by the JHC finding. The parties should address this at the hearing.

Finding A(6): “ED: … Dr. Bethencourt failed preoperatively to assess and consider the suitability of the patient’s LIMA [left internal mammary artery] as the conduit for bypass, which was substandard. Dr. Bethencourt assumed, but did not confirm, that the LIMA was present. Not being an urgent case, he should have ordered the medical record of the prior coronary artery bypass graft (‘CABG’) surgery, which would have disclosed the use of the LIMA in that procedure.” (AR 7.)

Substantial evidence supports this finding. ED underwent coronary artery bypass graft (“CABG”) surgery in 1997. (AR 38587, 55425.) Petitioner knew about the prior surgery but did not review the operative note from the prior CABG. Substantial evidence supports that the 1997 operative report was available to Petitioner prior to the surgery he performed in 2009. (AR 55425-426, pp. 3856-60.) The 2009 surgery was not performed on an emergency basis. Dr. McConnell, who performed the 1997 surgery, testified that it is standard practice as a cardiothoracic surgeon to review the prior operative report prior to an elective and non-emergent operation. (AR 54648-649.)

A reasonable trier of fact could reject Petitioner’s contention that the 1997 report was not available due to the transition from paper to electronic records or due to a “record keeping error by the hospital.” (OB 6-7, citing AR 55054-55.)[1] Substantial evidence supports that the 1997 report was available and that Petitioner could have requested it. (AR 54648-49, pp. 2341:19-2342:10.) A process was set up so that physicians would have access to paper records even after the switch to electronic records. (AR 55456, p. 3978:8-24.) Petitioner did not even request a copy of the 1997 report. (AR 55425-26.)

Primarily in reply, Petitioner argues that the 1997 report was not produced at the hearing or in response to discovery and that this proves it was not available. (Reply 6.) Petitioner does not show, with record citation, that he specifically requested the 1997 report in discovery. In any event, substantial evidence supports that the report was available for Petitioner to review prior to the 2009 surgery. (AR 54648-649.) The report itself is not necessary to sustain the finding. Petitioner does not show a prejudicial abuse of discretion. (CCP § 1094.5(b).)

Finding A(7): “GB: … Dr. Bethencourt’s assessment of the patient’s carotid arteries, if it occurred before the scheduled aortic valve replacement (‘AVR’) and CABG by sternotomy surgeries, was substandard. As a result, he discovered during surgery that the patient had diffusely diseased coronary arteries unsuitable for bypass. His decision to proceed with a port access AVR under the circumstances increased the risk of cerebrovascular accident, which occurred, and deprived the patient of potential treatments to minimize risk.” (AR 7.)

The Mercer report is substantial evidence that supports finding A(7). Specifically, Mercer concluded that Petitioner’s “preoperative evaluation of the carotid arteries was not adequate”; that Petitioner as the operating surgeon “bears a share of that responsibility”; and the inadequate preparation “increased the risk of cardiovascular accident… and deprived the patient of possible treatments to minimize this risk.” (AR 716-717.) Petitioner cites conflicting expert evidence. (OB 7.) The court cannot reweigh the evidence.

Petitioner appears to challenge a finding of JHC , in finding G(2), that “the unexpected change in the operation deprived the patient of informed consent.” (OB 7:25-28, citing AR 13.) However, the Hospital Board did not adopt that finding because it was not pleaded in the Third Amended Notice of Charges. (AR 56315.)

Finding A(8): “SC: The preponderance of evidence proved that preoperative

transesophageal echocardiogram showed a well-functioning mitral valve not requiring replacement despite the noise described by the patient. Therefore, Dr. Bethencourt should not have replaced it.” (AR 7.) Mercer opined that SC “had no indication for mitral valve replacement” and Petitioner’s “performing valve surgery was beyond the bounds of aggressive and reasonable judgment because there was no dysfunction of the mechanical valve.” (AR 749.) Petitioner cites no contrary expert opinion. (OB 8.) Substantial evidence supports this finding.

Finding B(1)(b): “VM: … Dr. Bethencourt failed to recognize and timely act upon the clinical evidence that the patient was hemorrhaging and required immediate surgical intervention due to an intraoperative laceration of her liver.” (AR 7.) Substantial evidence, including the testimonies of Drs. McConnell and Argenziano, supports this finding. (AR 54389-90, pp. 1799-1802 [Dr. McConnell]; 54452, pp. 1907-08 [Dr. Argenziano].) Petitioner’s own experts, Drs. Murphy and Ad, corroborated that Petitioner “missed” the evidence that VM was hemorrhaging due to an intraoperative liver laceration and made the “wrong call about the patient.” (AR 54988, p. 3003; AR 55050, p. 3120.) Petitioner highlights potential conflicts in the evidence, particularly with regard to nurse West. Since the court cannot reweigh the evidence, his arguments are not persuasive on substantial evidence review. (OB 8.)

Finding B(2): “AL: … Dr. Bethencourt failed to recognize and timely act upon the postoperative clinical evidence that the patient was hemorrhaging and required immediate surgical intervention due to an intraoperative laceration of his liver.” (AR 7.) Substantial evidence, including expert reports of Dr. Paone and Dr. Shah and testimony of Dr. Argenziano, supports this finding. (AR 505, 710 [Paone and Shah]; AR 54446, p. 1886 [Argenziano.) As with Finding B(1)(b), Petitioner cites conflicting expert testimony. (OB 9; Reply 7.) The court cannot reweigh this evidence.

Finding B(3): “LA: …. Dr. Bethencourt’s performance of a robotically-assisted MVr without cross-clamping the aorta was an unnecessarily aggressive approach that exposed the patient to greater risk for no offsetting benefit and therefore constituted poor and substandard clinical judgment and decision-making.” (AR 7-8.)

Substantial expert testimony supports this finding. LA was a 53-year-old woman with no known coronary artery disease. (AR 701.) Dr. Argenziano opined that Petitioner’s failure to cross-clamp patient LA was “the most disturbing case” he had ever reviewed. (AR 54461, p. 1945.) He stated that it was a “simple operation with a mortality risk of 0.1 percent or less, [but LA] had a big massive stroke because no crossclamp was placed for no discernible reason.” (Ibid.) In the Mercer report, Dr. Shah agreed that Petitioner’s “failure to cross clamp the aorta in this patient was below standard of care.” (AR 702.) Petitioner cites physicians that disagreed with Dr. Argenziano and Dr. Shah and opined that Petitioner’s operative approach and treatment was appropriate. (OB 10; see e.g. AR 55286, 55057-58.) The court does not “weigh the evidence” or “resolve conflicts in the evidence.” (Huang, supra, 220 Cal.App.3d at 1294.)

Finding B(4)(a)-(c): “DW: …. a. … Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard in that he should not have attempted minimally invasive CABG surgery in an 84 year old patient who had severe multivessel disease and was suffering from an acute myocardial infarction [MI]. The safer and appropriate surgical approach was a sternotomy with multi-vessel revascularization. b. …. Dr. Bethencourt failed to counsel the patient adequately on the advisability of a sternotomy approach in her clinical circumstances and the risks of a minimally invasive approach regardless whether the patient preferred a minimally invasive approach [and] c. … Dr. Bethencourt should have counseled the patient that a sternotomy may prove necessary during surgery and should have obtained her informed consent accordingly.” (AR 8.)

Petitioner contends that “JHC found Dr. Bethencourt should have performed a primary sternotomy on patient DW.” (OB 10.) Petitioner does not accurately summarize JHC’s findings B(4)(a)-(c). JHC found that sternotomy was the “safer and appropriate” procedure for patient DW. JHC did not find that Petitioner should have performed the sternotomy without obtaining the patient’s consent. Rather, JHC found that if the patient did not consent to sternotomy prior to surgery, then Petitioner should not have performed the surgery at all.

Substantial evidence supports these findings. In the Mercer report, Dr. Shah opined: “Sternotomy with multi-vessel coronary revascularization is the standard of care in the case of acute MI and deviation from this standard is not justified. A minimally invasive cardiac surgery should not be performed on a patient who refuses sternotomy. A certain percentage of cardiac operations will need to be converted to sternotomy, and the patient must be aware of and explicitly consent to sternotomy as part of the informed consent for minimally invasive cardiac surgery.” (AR 714-715.) Dr. Argenziano’s testimony and the Greeley report corroborate this expert opinion and also support findings B(4)(a)-(c). (AR 54444-45 [Dr. Argenziano]; AR 546-47 [Greeley].) Petitioner cites conflicting expert testimony from Drs. Grossi and Ad, but the court cannot reweigh this evidence. (OB 10, citing AR 55284-285, 55052.)

Petitioner contends that “he counseled the patient’s decision-maker” about “a possible secondary sternotomy.” (OB 10-11, citing AR 12976, 12997, 14097, 14118-119, 18770, 52700, 55163.) However, under substantial evidence review, Petitioner’s citations do not undermine the findings. Notably, the initial consult note states that the patient herself refused the sternotomy and “asked to DNR and hospice rather than that.” (AR 12976.) Also, Petitioner admitted that the written consent did not mention the “possible sternotomy,” even though he claimed to have discussed the possibility with the patient. (AR 52700.) A reasonable decisionmaker could conclude from the evidence that Petitioner did not adequately counsel the patient herself about the preferability of a sternotomy or the risk that a sternotomy would be required (as it was) if the minimally invasive approach was attempted first and failed. Also, substantial evidence supports that Petitioner should not have attempted the minimally invasive approach if DW did not consent to sternotomy.

Findings B(5)(a), (c): “MP: a. … Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard in that he did not promptly refer the patient, who was sufficiently stable for transfer, to a facility where she could receive transcatheter AVR (TAVR). TAVR was the safer and appropriate procedure in the patient’s clinical circumstances…. [and] c. … Dr. Bethencourt did not adequately consult with the patient’s family about the full scope of treatment options for the patient and the potential consequences of them.” (AR 8.)[2]

Substantial expert testimony and reports, including that of Mercer and Dr. Argenziano, support the findings that “TAVR was the safer and appropriate procedure in the patient’s clinical circumstances.” (AR 713-714, 54442-43.) Dr. Argenziano testified that MP, given her age and aortic condition, was in the “highest risk” category for cardiac surgery and “there’s really no way this patient should have had any kind of operation.” Dr. Argenziano opined that patient MP was the ideal candidate for TAVR. (AR 54442, p. 1870.) Dr. Shah agreed that “emergent AVR is not indicated in this situation”; that TAVR was the appropriate action; and Petitioner’s preoperative planning was inadequate. (AR 713-714.) Substantial evidence also supports the finding that Petitioner did not fully advise MP of the treatment options and high mortality risk. (AR 18791; 713; 54442-43; 55288, p. 3597.)

The issue is whether TAVR was an available option because MP “was sufficiently stable for transfer, to a facility where she could receive” TAVR. (AR 8.) Petitioner cites evidence that “Dr. Rex Winters was the only physician privileged to do TAVR or BAV at LBMMC and he was not available.” (OB 11, citing AR 54725-728.) Petitioner also cites evidence that MP was not sufficiently stable for transfer to another facility. (See AR 54726-727, pp. 2500-06; AR 55292-293, pp. 3616-18; see AR 54847, p. 2711 [“This is the type of patient that can decompensate at any time”].) In opposition, Respondents cite evidence that MP was high risk and TAVR was the preferred approach. (Oppo. 17.) However, Respondents do not address the argument that TAVR was not available at the Hospital at the time and that MP was not sufficiently stable for transfer. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Respondents cite no expert testimony that MP was stable for transfer.

Substantial evidence supports findings B(5)(a) and (c) in part. Specifically, substantial evidence supports that “TAVR was the safer and appropriate procedure in the patient’s clinical circumstances” and Petitioner “did not adequately consult with the patient’s family about the full scope of treatment options for the patient and the potential consequences of them.”

Subject to oral argument, it appears that substantial evidence does not support the finding that Petitioner’s “clinical judgment and decision-making were poor and substandard in that he did not promptly refer the patient, who was sufficiently stable for transfer, to a facility where she could receive” TAVR. (AR 8.)

Findings B(6)(a), (b): “RH: … Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard: a. A right side robotically-assisted minimally invasive approach is contraindicated in a pulmonary hypertensive patient because of increased risk of unilateral pulmonary edema. b. The patient, who was suffering from cardiogenic shock and pulmonary failure, should have been treated in the operating room, not transferred to the intensive care unit.” (AR 8-9.)

As discussed above, substantial evidence supports finding for patient RH that Petitioner “failed to diagnose pulmonary hypertension preoperatively and therefore did not appropriately consider the risks associated with a mitral valve replacement by a minimally invasive approach.” (AR 6.) In context of that finding, substantial evidence also supports findings B(6)(a), (b).

Drs. Argenziano and Shah both opined that the robotically assisted, minimally invasive approach used by Petitioner was contraindicated in a pulmonary hypertensive patient due to the longer cardiopulmonary bypass (“CPB”) times and increased risk of unilateral pulmonary edema. (AR 709; 54454-55, pp. 1917-1922.) Dr. Murphy acknowledged that for a patient with severe pulmonary hypertension (like RH), the longer “pump time” for the robotically assisted approach is a risk factor for unilateral pulmonary edema. (AR 55005, p. 3072; see also AR 55006, p. 3075:17-19 and AR 765 [noting risks from “long pump runs” and longer “operative and pump time”].)

Substantial evidence from the Mercer report also supports that a patient suffering cardiogenic shock and pulmonary failure, like RH, should be stabilized. If that is not possible, extracorporeal membrane oxygenation (“ECMO”) should be used. (AR 709.) In his testimony, Petitioner agreed that ECMO support should have been instituted, but testified “there was no ECMO at Long Beach Memorial at that time.” (AR 55152, p. 3356.) Upon arrival at the ICU, RH was in cardiogenic shock, had cardiac arrest, and died. (AR 708.) Dr. Shah opined that it is below the standard of care to transport an unstable cardiac patient from the OR to the ICU. (AR 709.) Since the patient was not stabilized, substantial evidence supports the finding that RH “should have been treated in the operating room, not transferred to the intensive care unit.” (AR 8-9.)

Finding B(8): “DR: … Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard in that he failed to timely diagnose and treat the tension pneumothorax after the patient’s arrest following the first surgery. Considering the patient’s clinical condition following the first surgery, he should have considered the possibility of a tension pneumothorax, obtained a chest x-ray to confirm the diagnosis and initiated treatment immediately. He did not diagnose the tension pneumothorax until the second surgery. Although Dr. Argenziano had ‘no concern’ about this case, the JRC determined that the analysis in the Mercer report (MECEx. 50:43655-43656), coupled with the evidence in the medical record (MECExs. 73 and 74), were preponderating evidence proving this charge.” (AR 9.)

The Mercer report supports this finding. Petitioner first noted the “possible left tension pneumothorax” after the first surgery and when performing a sternotomy. (AR 706.) Dr. Shah opined that Petitioner’s “failure to diagnose and treat the pneumothorax in this patient was below standard of care.” (AR 707.) Further, “no chest film was taken between surgeries that would have definitively identified a pneumothorax.” (Ibid.) Greeley rated Petitioner’s care “Questionable” (AR 694), and MPEC rated his care a “Significant Improvement Opportunity.” (AR 52785.)

Petitioner argues that evidence “confirm[s] that Dr. Bethencourt ordered a postoperative chest x-ray contrary to the JHC’s findings.” (OB 12-13, citing AR 27301, 26935, 27055, 26433-435, 26624.) Petitioner cites various medical records without explanation of the medical information contained in them. Some of the records cited seem to indicate a chest xray was performed on 3/31. Respondent does not respond to Petitioner’s factual assertion in the Opposition. Counsel should further address this issue at the hearing.

In reply, Petitioner argues for the first time that “the Chief of Staff at the time of the hearing, pulmonologist Maged Tanios, provided the care to the patient” and “testified at the hearing that there was no tension pneumothorax.” (Reply 8, citing AR 53829.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise this argument in reply. Even if considered, the court finds it unpersuasive because substantial evidence shows that Petitioner himself diagnosed tension pneumothorax, after performing a sternotomy. (AR 706, 694.)

The parties should address whether the Mercer report constitutes substantial evidence if directly contradicted by medical records.

Finding B(9): “CC: ... Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard because, rather than the robotically-assisted pericardial window procedure he performed, the appropriate surgical procedure after the incomplete pericardiocentesis was a subxiphoid pericardial window. Although Dr. Argenziano had ‘no concern’ about this case, the JRC determined that the analysis in the Mercer report (MECEx. 50:43654-43655), coupled with the evidence in the medical record (MECExs. 75 and 76), were preponderating evidence proving this charge.” (AR 9.)

Substantial evidence supports this finding. The expert opinion of Dr. Shah, coupled with the medical records the JRC found to corroborate that opinion, is substantial evidence in support of the finding. (AR 705-706.) Conflicting evidence, including from Dr. Argenziano, is not sufficient to prove that JHC prejudicially abused its discretion. (CCP § 1094.5(b).) The court cannot reweigh the evidence.

Findings B(11)(a)-(c): “CP: a. …. Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard because he failed to adequately protect the myocardium while patient’s heart was stopped during the minimally invasive AVR procedure, which is substandard. b. …. because he failed to manage cardioplegia appropriately. [and] c. … because his decision to extubate the patient, despite the anesthesiologist’s preference for her to remain intubated, exacerbated the acidosis complication.” (AR 9-10.)

Substantial evidence supports these findings. Petitioner performed an aortic valve replacement (“AVR”) on CP, a 64-year-old woman, which Dr. Argenziano described as a “relatively straightforward, low risk operation.” (AR 54456, p. 1924.) The patient suffered cardiac arrest; was reintubated because of severe metabolic acidosis; her clinical status deteriorated; and the family elected to withdraw support. (AR 720-721; AR 54456.) Dr. Argenziano testified that the adverse result was “really very uncommon” after an AVR. (AR 54457, p. 1930.) Dr. Argenziano opined that the patient had cardiac distress indicative of “poor myocardial protection.” (AR 54457, p. 1927; see also AR 54456, p. 1923 and 54466, pp. 1964-65.) In the Mercer report, Dr. Shah reached a similar conclusion. He opined that Petitioner’s “myocardial protection strategy was clearly inadequate” and that he failed to administer cardioplegia appropriately, which was “a violation of a basic tenet of cardiac surgery.” (AR 720.) He opined that the patient’s cardiac arrest “was caused by the failure to protect the myocardium.” (AR 721.) He also opined that “exacerbating her precarious situation was the decision to extubate the patient prematurely.” (Ibid.) This evidence supports findings B(11)(a)-(c).

Petitioner’s arguments are not persuasive. Petitioner argues that “Dr. Argenziano's position on this case was premised on the factual error in which he wrongly claimed that the patient had severe aortic insufficiency.” (OB 13.) As Dr. Argenziano acknowledged, the intraoperative echo report showed mild aortic insufficiency. (AR 55051, p. 3125; AR 54457, p. 1927.) Dr. Argenziano amended his opinion based on that information and found evidence of “poor myocardial protection” assuming mild aortic insufficiency. (AR 54466, p. 1964; see also AR 54456-57.)

Petitioner argues that Drs. Grossi and Ad opined that the care of CP was adequate and disagreed with Dr. Argenziano’s opinion of “poor myocardial protection.” (OB 13, citing record.) The court cannot reweigh the evidence or resolve a conflict in the expert opinions.

Petitioner argues that “the Post Anesthesia Evaluation note by Dr. Kaminsky does not reference any disagreement with Dr. Bethencourt regarding the decision to extubate the patient.” (OB 13, citing AR 36893-894.) Petitioner’s record citation is insufficient to show that finding (B)(11)(c) is not supported by substantial evidence. As noted, Dr, Shah opined that “exacerbating her precarious situation was the decision to extubate the patient prematurely,” which supports the finding. (AR 721.)

Finding B(12): “ED: … Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard because he abandoned the operation without considering an alternative conduit after encountering inadequate LIMA.” (AR 10.) Substantial evidence supports this finding. Dr. Shah opined that “it was inappropriate not to consider an alternative conduit when encountering an inadequate LIMA: a saphenous vein graft can be used for bypass in this situation.” (AR 703.) This expert opinion is substantial evidence in support of the finding. Petitioner’s contention regarding unavailability of previous medical records was already discussed in A(6) above.

Finding B(13): “EF: … Dr. Bethencourt’s clinical judgment and decision-making were poor and substandard because he did not revascularize the RCA [right coronary artery] once he had adequate exposure via sternotomy after converting to an open procedure.” (AR 10.)

The expert opinions of Drs. Argenziano and Shah are substantial evidence in support of the finding. (AR 54459, pp. 1935-36; AR 718.) Based on his review of medical records, Dr. Argenziano specifically disagreed with the opinion of other experts that the muscle the RCA serves was dead. (AR 55598-99, pp. 4245-48.) Dr. Argenziano also testified that Petitioner’s notes “kept saying doctor so-and-so was going to do a stent” on the RCA, which further contradicted Petitioner’s claim “that he didn’t do it because it was infarcted years before.” (Ibid.) Petitioner cites conflicting expert opinions from Drs. Grossi, Ad, Sutter, and Winters. (OB 14-15, citing AR 55279, 55055, 54913, 54733-736.) The court cannot reweigh the evidence. While different conclusions may have been possible based on the opinions of Petitioner’s experts, the JHC could reasonably conclude that Petitioner demonstrated poor clinical judgment and decision-making when he did not revascularize the patient’s RCA once the procedure was converted to sternotomy. Substantial evidence supports finding B(13).

Finding C(1)(b): “VM: … Dr. Bethencourt’s poor and substandard technique caused the injury to the patient’s liver during the initial surgery.” (AR 10.) Drs. Argenziano and Shah both opined that VM’s liver laceration was caused by a “technical error” in the surgery performed by Petitioner. (AR 712, 760, 54452, p. 1908.) Dr. Shah opined that the “massive postoperative hemorrhage the patient endured following surgery (due to the liver laceration) resulted in progressive and eventually fatal multisystem organ failure.” (AR 712.) Dr. Argenziano agreed that the liver laceration “made a significant impact on the outcome of the patient.” (AR 54452.)

Petitioner cites expert testimony that liver lacerations are a known complication of robotic surgery. (OB 15, citing AR 55277, 54989-997, 54850-851, 55049-053, 54929.) The court cannot reweigh the evidence. Substantial evidence supports that VM’s liver laceration reflected poor and substandard surgical technique. Finding C(1)(B) is supported by substantial evidence.

Finding C(2): Contrary to Petitioner’s assertion, the JHC and Hospital Board did not find that “LA’s liver injury was caused by substandard technique.” (OB 15.) Rather, JHC and Board found that his failure to cross-clamp LA’s aorta showed substandard clinical judgment and decision-making. (AR 7-8, 10, 56309, 56312.) Petitioner does not show a prejudicial abuse of discretion in the relevant finding, as discussed above for finding B(3).

Finding C(3): “DW: … Dr. Bethencourt’s surgical technique in the minimally invasive procedure was poor and substandard, causing injury to the patient’s left internal mammary artery (‘LIMA’) graft and unsuccessful revascularization of the left anterior descending artery.” (AR 10.)

Substantial evidence supports this finding. Dr. Shah opined that “the minimally invasive MIDCAB procedure was technically flawed and adequate LAD flow could not be established despite two attempts at revascularization.” (AR 715.) He opined that poor technical execution contributed to the “prolonged procedure (10 hours) which lead to the patient’s death.” (Ibid.) Dr. Argenziano opined that there were several technical errors in the procedure, including a “mammary injury.” (AR 54445, p. 1880; see also AR 55513, p. 4046.) Petitioner’s own operative report notes “a dissection … at the origin of the mammary.” (AR 13005.) Conflicting opinions cited by Petitioner, including from Drs. Sutter and Grossi, are not sufficient to prove that JHC prejudicially abused its discretion. (CCP § 1094.5(b); see OB 15, citing AR 54911, 55291.) The court cannot reweigh the evidence.

Findings C(5)(a)-(b): “CC: … a. … Dr. Bethencourt’s poor and substandard technique cause[d] a cardiac injury during the percutaneous pericardial drainage procedure. b. … Dr. Bethencourt’s poor and substandard technique caused the injury to the patient’s lung during the robotically-assisted pericardial window surgery.” (AR 10-11.)

Dr. Shah opined that Petitioner caused a cardiac injury during the percutaneous pericardial drainage procedure and caused the injury to the patient’s lung during the robotically assisted pericardial window surgery. (AR 705-706.) Medical records also corroborate that the patient suffered a cardiac injury and “large air leak” during the procedures. (AR 28543, 28845.) Petitioner cites an operative note, but he does not explain how it supports his position. (OB 16.) Indeed, the operative note refers to an “apical puncture.” (AR 28543.) Petitioner cites his own testimony, in which he disagreed with Dr. Shah’s opinion that he caused a lung injury during the robotically assisted procedure. (OB 16, citing AR 55147.) The court cannot reweigh the evidence. Further, Petitioner cites no opinion from a defense expert. Substantial evidence supports findings C(5)(a)-(b).

Finding C(6): “ED: … Dr. Bethencourt’s poor and substandard technique caused the injury to the patient’s lung during the abandoned surgery, causing a bronchopleural fistula and a prolonged hospital confinement.” (AR 11.) Dr. Shah’s expert report and Dr. Argenziano’s testimony support this finding. (AR 703-704, 54444.) While Dr. Grossi disagreed with the diagnosis of bronchopleural fistula, he acknowledged that “there’s a pulmonologist who wrote that in the chart.” (AR 55286, p. 3592.) The court cannot reweigh the expert evidence. Substantial evidence supports finding C(6).

Findings C(7)-(12) and Finding D: Poor and Substandard Surgical Technique Causing Liver Injuries; and Substandard Rate of Liver Injuries During Procedures

Findings C(7)-(12): In these findings, JHC found that Petitioner’s poor and substandard technique caused liver injuries to patients ED, SC, RP, RS, MK, DG, and MH. (AR 11.) These findings relate to Finding D, which states in pertinent part: “Although the evidence established that liver injuries can occur in robotically-assisted and minimally invasive cardiothoracic procedures, the preponderance of evidence proved that seven liver injuries over a ten year period – in contrast to one or two over an entire career – is excessive and substandard. The number of injuries established Dr. Bethencourt’s poor and substandard surgical technique in these cases, regardless of the volume of procedures he performed.” (AR 11.)

Dr. Argenziano testified that liver lacerations are an extremely rare complication in cardiac surgery. Before reviewing Petitioner’s patient care, Dr. Argenziano had observed only one such injury among all surgeons he has worked with in 25 years. (AR 54459-60.) Dr. Argenziano opined that seven lacerations in ten years by the same provider “or even any large group of surgeon[s]” is “way too many” and falls below the standard of care. (AR 54459, p. 1938:25; AR 54794, p. 2603:16-20.) Dr. Shah corroborated this opinion: “It is unusual for a cardiothoracic surgeon to have 7 cases of liver laceration, 2 of which led to postoperative complications and death…. If Dr. Bethencourt continues to injure the liver during his surgeries, more patients will be harmed—or possibly die—unnecessarily.” (AR 756.) Dr. Shah cited a report of the Cleveland Clinic finding zero liver lacerations out of 1,000 robotic mitral valve surgeries. (AR 756.)

Petitioner cites expert testimony that liver lacerations are a known complication of cardiothoracic surgery, including robotic approaches. (OB 15 and 17, citing AR 55277, 54989-997, 54850-851, 55049-053, 54929.) There is a conflict between the opinions of Drs. Argenziano and Shah, on the one hand, and Petitioner’s experts on this issue. As discussed, the court cannot reweigh the evidence or resolve this conflict on substantial evidence review.

Substantial evidence also supports findings C(7)-(12) that Petitioner’s substandard surgical technique caused liver injuries to patients ED, SC, RP, RS, MK, DG, and MH. Dr. Shah specifically opined that “error in surgical technique” caused these liver injuries. (AR 755-756.) Dr. Argenziano gave a similar opinion, finding that certain liver lacerations were caused by “technical error” (AR 760) and that the large number of liver lacerations “suggests potential deficiencies in technical skill or attention to detail.” (AR 766.)

Petitioner cites evidence that Dr. Argenziano “could not identify the mechanism of livery injury.” (OB 17, citing 54806, 54802-803.) However, as noted, Dr. Argenziano opined that the number of liver lacerations suggested poor surgical technique. (AR 766; AR 54459, p. 1938:25; AR 54794, p. 2603:16-20.) He also found that technical error specifically caused some of the liver injuries. (See e.g. AR 760-761.) In conjunction with the Mercer report, his opinion supports findings C(7)-(12) and D.

Finding E(1): “VM: … Dr. Bethencourt’s operative report omitted the cause of the patient’s liver injury and other material clinical events in the patient’s postoperative course…. His preoperative plan was limited to the maze procedure, suggesting

that the patient may not have consented to other procedures that were performed during the first surgery.” (AR 11-12.) Dr. Shah opined that Petitioner’s “notes fail to mention of the possible etiology of the liver injury.” (AR 712.) He also opined that Petitioner’s “operative report does not meet standards for adequate documentation.” (Ibid.) Petitioner fails to show that the term “operative report” in the finding could not include Petitioner’s notes related to the operation, including with respect to the liver injury. (See Reply 9-10.) JHC did not make a definitive finding regarding lack of informed consent in finding E(1). Petitioner does not dispute that his preoperative plan was limited to the maze procedure. Substantial evidence supports the finding.

Finding E(2): “MP: … Dr. Bethencourt’s operative report did not appropriately describe his strategy for myocardial protection, which is an essential element of heart surgery.” (AR 12.) Dr. Shah opined that “The operative note does not detail the myocardial protection strategy … e.g., what cardioplegia, if any, was given … and how was it delivered?” (AR 713.) Petitioner contends that his March 10 note “details his myocardial protection strategy.” (OB 18, citing AR 18794-97.) However, Petitioner cites no expert opinion in support and he does not explain what part of the note, which is fairly detailed, supports his position. Respondent does not respond to Petitioner’s factual assertion in Opposition. Counsel may address this further at the hearing.

Finding E(3): “RH: … Dr. Bethencourt’s documentation of the operation was poor and substandard: a. It omitted a description of his aortic cross clamping technique

utilized during the operation. b. It mischaracterized the patient’s postoperative hemodynamic status. c. It did not explain why mechanical support was not considered or deployed in the operating room rather than transferring the patient to the ICU.” (AR 12.) Dr. Shah’s report supports all three findings. (AR 709.) Petitioner does not cite any contrary expert opinion. He provides insufficient support for his argument that the medical records undermine the findings on substantial evidence review. (OB 18, citing AR 19093-94, 19249, 19098.) Substantial evidence supports finding E(3).

Finding E(4)(a)-(b): “EG: … Dr. Bethencourt’s documentation of the operation was poor and substandard: a. He omitted explanation of the low perfusion pressure and reasons that measures were not taken to correct hypotension. b. He did not clearly and appropriately address the positioning of the endoaortic balloon and the steps taken, if any, to ensure the balloon did not migrate during the operation.” (AR 12.) Dr. Shah’s report supports both findings, including that the operating surgeon has ultimate responsibility to document hypotension and steps taken to ensure the patient is perfused during the surgery. (AR 708.) The court cannot reweigh the evidence or resolve the conflict with Petitioner’s cited testimony. (See AR 55419.) Contrary to Petitioner’s assertion, Dr. Shah did not opine that the medical documentation was sufficient with respect to the use of endoballoon. The cited statement does not concern the sufficiency of the medical documentation. (OB 18:15-19; AR 708.)[3]

Finding E(6): “ED: … Dr. Bethencourt’s documentation was poor and substandard because he failed to document the bronchopleural fistula in his operation report.” (AR 12.) Substantial evidence supports this finding. (AR 38587, 703-704, 54444.) See additional analysis above for finding C(6).

Finding G: Deviation from the Patient’s Informed Consent in Non-Emergency Circumstances

Finding G(1): “PH: … [T]he AVR deviated from the documented informed consent given by the patient and was not an emergency procedure precluding the necessity of consent. Therefore, Dr. Bethencourt violated section 2.2.J of the

Bylaws and Sections 4.4(A) and (B) of the Medical Staff Rules and Regulations (MECEx. 4), which require that patients be fully informed as to the procedure to be performed, and sections 3.2.B, 3.3.E and 9.1.2. of the Bylaws, which require members to abide by the ethical principles of the medical profession.” (AR 13.)

Petitioner cites only to a written opinion of Dr. Argenziano the patient “had intractable ventricular distension after removal of the crossclamp, which required AVR” and that “is not a deviation from the standard of care to replace the valve if these and other maneuvers are not effective.” (AR 764.) That evidence does not directly address the finding that the AVR deviated from the documented informed consent and was not an emergency procedure. Respondents cite Dr. Shah’s opinion that the “AVR likely could have been avoided with improved preoperative planning,” which suggests Petitioner had an opportunity to inform PH of the risks and benefits of the AVR. (AR 719.) Petitioner has the initial burden to show a prejudicial abuse of discretion. (CCP § 1094.5(b).) His record citation does not meet that burden, especially in light of Dr. Shah’s opinion that the AVR could have been avoided. Subject to oral argument, the court concludes that finding G(1) is supported by substantial evidence.

Findings H & I: Failure to Cooperate Appropriately with the Patient Care Team; and Unavailability and Unresponsiveness

Findings H(1) and I(1): “VM: … Dr. Bethencourt failed to cooperate appropriately with the patient care team by not responding adequately to the

concerns of nursing staff and not providing timely orders to address the clinical evidence of postoperative hemorrhage…. By not paying adequate attention to the patient’s increasing abdominal girth and other clinical signs of potential bleeding noted by nursing staff, Dr. Bethencourt did not respond appropriately to the patient or staff regarding concerns about her condition.” (AR 13.)

Substantial evidence supports these findings. Nurse West testified that she asked Petitioner to order a CT scan of VM’s abdomen, but he refused. (AR 54307, pp. 1586-87.) Testimonies of Nurse West and Dr. McConnell, among other evidence, support the finding that Petitioner did not pay adequate attention to the patient’s increasing abdominal girth and other clinical signs of potential bleeding noted by nursing staff. (AR 54307; AR 54390, p. 1801; AR 55159, p. 3383; see also analysis above for Finding B(1)(b).)

Findings H(2) and I(2): “AL: … Dr. Bethencourt failed to cooperate appropriately with the patient care team by not responding adequately to repeated calls and pages when the patient required urgent care before his cardiac arrest…. Dr. Bethencourt erroneously decided not to return the patient to surgery, thereby failing to respond appropriately to the patient and staff concerns about his condition.” (AR 13.)

Petitioner does not meet his burden to show that these findings are not supported by substantial evidence. Petitioner cites evidence that Dr. Grossi believed Petitioner’s care of AL was within the standard of care and that Dr. Lam testified that he and Petitioner made a collective decision to not take AL back to surgery. (OB 19, citing AR 55292, 54638, 54864.) However, that evidence does not respond directly to the findings. Further. Respondents cite some evidence from which a reasonable trier of fact could infer that Petitioner did not cooperate appropriately with the patient care team by not responding to their calls and pages about the patient and that he erroneously decided not to return the patient to surgery. (See e.g. AR 54166, pp. 1300-1301; 54633.) Dr. Lam admitted that Petitioner participated in the decisionmaking. (AR 54864.) See additional analysis above for finding B(2). (See also AR 505, 710; AR 54446, p. 1886.) Substantial evidence supports findings H(2) and I(2).

Finding J(1): “AL: The preponderance of evidence, particularly the transcript of Dr. Bethencourt’s telephone call with the coroner, proved that Dr. Bethencourt withheld material information about the patient’s clinical circumstances that led to his death and misled the coroner in discussing the potential causes of death. The evidence that cardiac asthma was a cause of death was not only unconvincing, it ignored the other clinical events contributing to the patient’s death that should have been disclosed to the coroner. Dr. Bethencourt’s omissions and misrepresentations constituted dishonesty.” (AR 14; see also Finding K.5.)

The transcript of Petitioner’s telephone call with the coroner shows that he reported AL’s cause of death as “asthma.” (AR 530.) Dr. Argenziano opined that AL died from bleeding, hypotension, and possibly tamponade. (AR 54446, p. 1884; see also AR 55589, p. 4208.) He found no indication in the medical records that AL died because of “asthma.” (AR 54446, p. 1885.) He also disputed the contention that AL died of “cardiac asthma” and he noted that Petitioner did use the term “cardiac asthma” at the time of the patient’s death. (AR 55588, pp. 4205-06.) Petitioner admitted, in his testimony, that his notes for AL did not reference asthma and that AL was not actively suffering from or being treated for asthma. (AR 55366, pp. 3762-63.)

Petitioner cites expert testimony that AL died of cardiac asthma. (OB 19, citing AR 55370, 55156, 54738, 55588, 54724.) Based on this testimony, Petitioner disputes Respondents’ statement that “[n]othing indicates AL died of asthma.” (Oppo. 22 and Reply 10.) There is a conflict in the expert testimony as to whether AL died of cardiac asthma. (See AR 54446, p. 1884-85; see also AR 55588-89, p. 4205-08.) The court cannot reweigh that evidence.

Furthermore, the telephone transcript does not show Petitioner informing the coroner that AL died of cardiac asthma. Rather, Petitioner stated that AL “had asthma in the past” and that he had “pulmonary disease in pre-op.” (AR 530.) The coroner then asked if asthma killed AL, to which Petitioner responded “oh yeah … definitely.” (Ibid.) Those statements do not appear to refer to cardiac asthma. Petitioner develops no argument to the contrary.

Substantial evidence support findings J(1) and K(5) that Petitioner was dishonest in representing the cause of death to the coroner. These findings, alone, could support the decision to terminate Petitioner’s medical staff membership and clinical privileges. (See Unterthiner v. Desert Hosp. Dist. (1983) 33 Cal.3d 285.)

Petitioner Waives Challenge to any Findings Not Challenged or Discussed In His Opening Brief

Respondents made numerous, highly technical findings in support of the corrective action taken against Petitioner. (AR 1-15.) Petitioner has challenged many of those findings in his opening brief and reply. For any findings that Petitioner has not challenged in his writ briefing, the court concludes that substantial evidence supports the findings and Petitioner does not prove any prejudicial abuse of discretion. (CCP § 1094.5(b); Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

Petitioner has attached his writ petition to the opening brief. To the extent he intends to make additional arguments by doing so, Petitioner violates the applicable page limits and this court’s order granting him leave to file a 20-page brief. The court does not consider additional arguments that may be included in the petition.

The court has tentatively found that one sub-part of finding B(5)(a) is not supported by substantial evidence. The court has directed the parties to further address findings A(5), B(8) and E(2) at the hearing. In all other respects, the court concludes that the findings challenged by Petitioner are supported by substantial evidence.

Petitioner challenges the fairness of the administrative proceedings on several grounds. (OB 2-4, 19-20; Reply 3-5; 10.) His arguments do not persuade.

“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 argues the JHC hearing officer was biased because he denied discovery requests; motions in limine; a request to exclude Dr. McConnell from testifying; questioning of Nurse West; and a proposed jury instruction. (OB 2-4.) “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 this standard with respect to the hearing officer; the JHC panel; or any specific decisionmaker involved in his case. That the hearing officer ruled against Petitioner on some motions and issues does not establish bias by “clear averments.” Further, the unanimous decision of the JHC to terminate Petitioner’s membership and privileges is not evidence of bias. Although the hearing officer and JHC should not have included findings that were not charged (see Reply 4:11-14), the Hospital Board did not adopt those findings and Petitioner suffered no prejudice. The hearing officer’s and JHC’s inclusion of those findings does not prove bias by clear averments with respect to the hearing officer or JHC.

At the administrative hearing, the hearing officer invited Petitioner’s counsel to submit a motion to disqualify him for bias. (AR 53758, p. 470.) There is no evidence Petitioner filed such motion, which undermines Petitioner’s position that the hearing officer was biased.

The court rejects Petitioner’s arguments that the hearing officer or any other decisionmaker was biased against him.

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. The record is more than 57,000 pages and belies any assertion that Petitioner lacked notice or an opportunity to respond. Petitioner makes no argument to the contrary.

Petitioner challenges certain evidentiary rulings of the hearing officer, including that he denied discovery requests; motions in limine; a request to exclude Dr. McConnell from testifying; questioning of Nurse West; and a proposed jury instruction. (OB 2-4.) Petitioner’s primary argument appears to be that these rulings were adverse to him and, in that respect, show bias by the hearing officer. However, Petitioner does not develop an argument that these rulings 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 Respondents, Petitioner fails to show that the hearing officer prejudicially abused his discretion in any of these evidentiary rulings. (Oppo. 24-25.) As examples, Petitioner does not show that additional policies regarding informed consent; unrelated medical records; or documents related to Hospital’s cardiothoracic program could possibly change the result in this action. Nor does Petitioner show that the denial of such information in discovery was an abuse of discretion. The court has considered Petitioner’s arguments and record citations, including in reply. (Reply 3-5.) None convince the court that the challenged rulings were a prejudicial abuse of discretion. (CCP § 1094.5(b).)

Petitioner asserts that “the MEC did not call Dr. Shah as a witness, depriving Dr. Bethencourt of the opportunity to cross examine him.” (OB 5.) However, Petitioner cites no authority that MEC was required to call Dr. Shah to afford Petitioner a fair hearing. Petitioner could have called Dr. Shah as an adverse witness. He also could argue to the JHC to give less weight to Dr. Shah’s opinions because he did not testify at the hearing.

Based on the foregoing, Petitioner received a fair hearing. He does not show any prejudicial abuse of discretion in the hearing officer’s evidentiary rulings.

The court has tentatively found that one sub-part of finding B(5)(a) is not supported by substantial evidence. Specifically, subject to argument, it appears that substantial evidence does not support the finding that Petitioner’s “clinical judgment and decision-making were poor and substandard in that he did not promptly refer the patient, who was sufficiently stable for transfer, to a facility where she could receive” TAVR. (AR 8 [bold italics added].) The court has also asked for further argument with respect to findings A(5), B(8) and E(2). The court has found that all other findings challenged by Petitioner are supported by substantial evidence.

Even if the court finds that substantial evidence does not support findings A(5), B(5) (one subpart), B(8) and E(2), a question remains whether the matter should be remanded. Remand is not appropriate if the court concludes, given the other substantial evidence in the record, there is “no real doubt” that the Hospital Board would have reached the same conclusion even without these challenged findings. (see, e.g., Griego v. City of Barstow (2023) 87 Cal. App. 5th 133, 142.) Counsel may address this issue of remedy at the hearing.

Petitioner received a fair hearing. He does not show any prejudicial abuse of discretion in the hearing officer’s evidentiary rulings. Nor does he prove bias.

The court will consider further argument regarding three of the findings, and on the issue of remedy.

[1] Petitioner refers to a “1998 operative report.” (OB 7.) The prior surgery occurred in 1997. The discrepancy is not material.

[2] In his opening brief, Petitioner challenges finding B(5)(b), but that finding was that MEC did not prove the allegation at issue. Petitioner appears to challenge finding B(5)(c) instead.

[3] Petitioner cites AR 701, but he appears to have meant AR 708, which includes the cited statement.