Judge Mitchell L. Beckloff, Case Number: 22STCP03095, Date: 2023-08-11 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03095, Date: 2023-08-11 Tentative Ruling

Petitioner, Athena Alexander, M.D., petitions for a writ of administrative mandamus directing Respondent, Department of Health Services of the County of Los Angeles, to set aside its decision denying Petitioner’s application for recredentialing and renewal of privileges. Respondent opposes the petition.

Petitioner completed medical school at the David Geffen School of Medicine at the University of California, Los Angeles in June 2013. (AR 88.) She completed residency training in internal medicine at White Memorial Medical Center in Los Angeles in June 2016. (AR 88.) Petitioner then served as a physician in an Immigration and Customs Enforcement detention center in Texas from December 2016 to March 2017. (AR 89.) Petitioner thereafter relocated to Los Angeles in April 2017 and obtained employment with Martin Luther King, Jr. Outpatient Center (MLK). Petitioner worked at MLK as a full-time physician beginning in June 2017. (AR 89.)

Respondent operates an Ambulatory Care Network (ACN), a system of outpatient clinics in Los Angeles County. MLK is an ACN clinic operated by Respondent. (AR 28.) A County-employed physician must have his or her medical and professional credentials evaluated and be granted privileges in order to practice at an ACN clinic. The ACN’s Credentialing and Privileging Committee (CPC) utilizes a peer-review process and makes credentialing decisions. A credentialing determination is based on an evaluation of the individual’s current license, education, training, experience, competence, and professional judgment. If the CPC finds a physician qualified, it grants privileges to perform specific tasks and procedures within the physician's area of expertise. Privileges are granted for two years and must thereafter be renewed at two-year intervals. (AR 28, 268-273.)

Petitioner applied for and obtained privileges to practice internal medicine at MLK in June 2017. (AR 61.) Initially, from August 2017 to July 2018, Petitioner performed well and met expectations in all areas according to her annual performance review. (AR 9.)

In July to September 2018, other physicians at MLK covered Petitioner’s shifts while Petitioner was away. (AR 7, 331.) Several of those physicians informed Petitioner’s supervisor, KhanPhong Trinh, M.D., that Petitioner had not signed provider notes during previous patient interactions. (AR 7, 331.) Thereafter, Trinh reviewed Petitioner’s patient files for about 10 patients for the period of April 1 to August 10, 2018. Trinh found none of the medical records he reviewed included a provider note. (AR 7-8, 331.) On September 19, 2018, Trinh met with Petitioner to discuss clinical documentation deficiencies. During the meeting, Petitioner admitted she had incomplete notes dating back to April 2018. (AR 8.)

On October 3, 2018, Trinh and MLK's Chief Medical Officer, Ellen Rothman, M.D., met with Petitioner. At that time, Petitioner acknowledged her duty as a physician to maintain current and complete medical records. Trinh and Rothman proposed strategies for Petitioner to improve her performance, including (1) charting electronically while talking to the patient instead of handwriting notes and later transcribing the notes into the electronic system;

(2) preparing certain medical record information in advance; and (3) agenda setting and prioritizing problems in her patient interactions. Trinh and Rothman provided Petitioner with MLK's policies regarding clinical documentation and advised Petitioner her performance would be monitored. (AR 9-10, 29, 331-332, 380-381.) Thereafter, multiple reviews of the medical records for Petitioner’s patients revealed continued deficiencies in Petitioner’s clinical documentation, including missing provider notes for a substantial percentage of patients.[1] (AR 11-17, 30-32, 333-346, 394-420.)

Trinh and Rothman met with Petitioner again in March 2019 and July 2019 to review deficiencies in Petitioner’s patients’ medical documentation. Trinh and Rothman admonished Petitioner of her professional obligation to prepare complete medical documentation for her patient interactions. Trinh and Rothman also advised Petitioner her performance could not be fully evaluated due to her documentation deficiencies. (AR 12-17, 31-33, 333-336, 463-464.)

In April 2019, Petitioner submitted an application for renewal of credentialing and privileges to permit her to continue to practice at MLK. The CPC considered Petitioner’s application and recommended that her privileges be renewed only for six months, during which a Focused Professional Practice Evaluation (FPPE)[2] would be conducted. (AR 15-17.)

In September 2019, as part of the FPPE, five random medical records from 2018 were independently evaluated by two physicians. The reviewers found the clinical documentation unsatisfactory and noted the notes provided insufficient information to permit an assessment of Petitioner’s clinical performance. (AR 21, 454-455.) In addition, reviewers considered 15 records at random from 2019 and found ten without a completed provider note. (AR 21-22, 455-456.)

Petitioner went on a medical leave of absence for almost two years, from September 9, 2019 to July 9, 2021. (See e.g., AR 121-258 [Petitioner’s emails and medical records in support of medical leave].) While Petitioner’s period of leave prevented her from completing all six months of the FPPE, Trinh concluded the five months of available information sufficiently enabled him to issue a FPPE report. (AR 453-457, see also AR 17-24.) The report summarized the reviews of Petitioner’s performance and concluded Petitioner “has not shown any improvement . . . despite multiple discussions with her and attempts to assist her in improving her performance.”

Denial of Petitioner’s Application for Recredentialing; and Administrative Proceedings

In April 2021, while on medical leave, Petitioner submitted an application for renewal of ACN credentialing and clinical privileges at MLK. (AR 491-530.) Based on the results of the FPPE and other information, the CPC determined Petitioner did not meet ACN’s standards based upon her continued failure to complete clinical documentation in a timely manner. The CPC noted Petitioner had multiple opportunities to correct the clinical reporting deficiencies and failed to improve. The CPC voted to deny Petitioner’s application for renewal of her credentialing and privileges, effectively ending Petitioner’s employment with MLK. (AR 45, 531-535.)

In April 2021, the CPC notified Petitioner of its recommendation to deny her application and informed her of her right to a hearing to challenge the recommendation. (AR 536-545.) Petitioner requested a hearing. (AR 560-562.) A hearing committee of three physicians and one alternate was appointed. (AR 570.) The CPC and Petitioner both called witnesses, and submitted documentary evidence. In December 2021, the hearing committee issued its written Decision finding the CPC had proved by a preponderance of the evidence that CPC’s recommendation to deny Petitioner’s application was reasonable and warranted. (AR 570-578.) In its decision, the hearing committee found in part:

(1) Petitioner’s “consistent failure for more than one year to complete her clinical documentation in a timely manner was beyond reason and represented incompetence on her part.”

(2) Petitioner’s “record keeping violated the ACN Medical Records and Documentation policy that requires all documentation in medical records to be timely, accurate and complete.”

(3) Petitioner’s “continued failure to complete her clinical documentation in a timely manner posed a direct threat to patients.”

(4) Petitioner’s “charting problems continued despite multiple efforts by her supervisors to help her. . . . [The] supervisors’ efforts to accommodate [Petitioner’s] situation were reasonable.”

(5) Petitioner did not present any “clear plan . . . as to how she would be able to catch up her huge backlog and prevent such backlog from happening in the future. . . . [Petitioner] would have failed to clear her charting backlog no matter what further remediation efforts had been employed by her supervisors.”

(6) Petitioner’s “numerous missing notes prevented her supervisors from truly assessing her competence during periodic peer review audits . . . .”

(7) For these reasons, Petitioner “failed to demonstrate her current competency to resume her employment with ACN.” (AR 573-574.)

Petitioner appealed the hearing committee’s decision to the appeal board of ACN. Following an appeal hearing, the appeal board recommended to Respondent’s director that the hearing committee's decision be affirmed. (AR 620-633.) On May 26, 2022, the director issued a decision affirming the decision of the hearing committee. (AR 634-635.)

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision 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 respondent 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. (Code Civ. Proc., § 1094.5, subd. (b).)

The parties agree judicial review here is under the court’s independent judgment. (Opposition 7:19-22.) (See Cipriotti v. Board of Directors (1983) 147 Cal.App.3d 144, 154; Sandarg v. Dental Bd. of California (2010) 184 Cal.App.4th 1434, 1440.)

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) The court may draw its own reasonable inferences from the evidence and make its determinations as to the credibility of witnesses. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) Under independent judgment, “abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (Code of Civ. Proc., § 1094.5, subd. (b).)

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code, § 664.)

In her extremely brief discussion of whether the evidence supports the findings, Petitioner does not identify any particular findings with which she takes issue. Instead, Petitioner merely asserts “the bodies reviewing [her] application for renewal of privileges and subsequent appeals did not sufficiently consider Petitioner’s significant evidence in her favor.” (Opening Brief 11:25-26.) Petitioner asserts “crucial evidence presented by Petitioner was not sufficiently considered in the various decisions pertaining to Petitioner’s privileges and credentialing.” (Opening Brief 12:7-8.)

More specifically, Petitioner contends the hearing committee and director failed to consider and “ignored” the following mitigating factors: (1) “Petitioner’s extensive testimony regarding how Respondent overburdened her with professional responsibilities and did not allow her sufficient time to draft patient notes”; (2) “Petitioner’s testimony regarding how Respondent forced her to apply for renewal of her credentials while she was on medical leave for depression, and did not provide an opportunity to complete the Focused Professional Practice Evaluation after her medical leave had ended”; and (3) “Petitioner’s testimony that her supervisors at ACN never provided her any meaningful solutions or accommodations to support her success managing her overwhelming workload.” (Opening Brief 11:27-12:7)

Petitioner’s arguments are not persuasive. Petitioner does not demonstrate the hearing committee “ignored” Petitioner’s evidence. The hearing committee stated “[t]he fact that [its] summary does not include facts, inferences or arguments deemed significant by either party does not mean that the Hearing Committee failed to consider everything before it.” (AR 572.) The hearing committee’s decision shows it considered Petitioner’s testimony as well as other evidence she submitted. In fact, the hearing committee summarized Petitioner’s testimony, including her explanation for the deficiencies in her clinical documentation. (AR 572.) The Committee also found Petitioner did not present any “clear plan . . . as to how she would be able to catch up her huge backlog and prevent such backlog from happening in the future. . . .” (AR 574.) The hearing committee’s statements evidence it considered of all the evidence before it, including mitigating factors asserted by Petitioner.

Petitioner’s claim the hearing committee “did not sufficiently consider” Petitioner’s alleged mitigating circumstances suggests she believes the hearing committee did not give sufficient weight to such evidence. Exercising its independent judgment on the whole record, the court disagrees.

As a preliminary matter, the weight of the evidence supports the findings Petitioner’s “consistent failure for more than one year to complete her clinical documentation in a timely manner was beyond reason and represented incompetence”; posed a direct threat to patients; and prevented Petitioner’s supervisors from assessing Petitioner’s competence during peer review audits. (AR 573-574.) Trinh and Rothman both testified about the importance of timely and complete clinical documentation; the deficiencies in Petitioner’s documentation over more than a year; and the strategies they proposed to assist Petitioner with improving her performance. (AR 7-38.)

Trinh and Rothman also testified that inadequate clinical documentation creates risk of harm to patients and prevents an accurate assessment of professional competence. (AR 7-38.) Trinh and Rothman provided Petitioner with MLK's policies concerning clinical documentation and informed Petitioner her performance would be monitored. (AR 9-10, 29, 331-332, 380-381.)

Despite Trinh and Rothman’s ongoing efforts to work with Petitioner’s clinical record management skills, multiple reviews of the medical records for Petitioner’s patients revealed continued deficiencies in Petitioner’s clinical documentation. Review disclosed Petitioner’s patient files were missing provider notes for a substantial percentage of patients. (See e.g., AR 11-17, 30-32, 333-346, 394-420, 453-457, 463-464.) Further, on cross-examination, Petitioner admitted that while many of her patient medical records had no documentation entered for months, she kept hundreds of handwritten notes of patient interactions in a drawer. (AR 73.) Petitioner has not disputed she had a substantial backlog in her clinical documentation in 2018-2019, including missing provider notes for many patient interactions.

In context of this compelling evidence, Petitioner’s alleged mitigating circumstances do not undermine the administrative findings. Among other evidence, Petitioner cites testimony of Shantelle Bonman, D.O., a former physician at MLK, stating that MLK physicians were allotted about 20 minutes of clinical time per patient, and it was difficult to keep up with the patient workload at MLK. (AR 52-54.) Petitioner testified many of her patients at MLK were low income; were homeless or in transitional housing; had never seen a doctor before and had low medical “literacy”; and had prior opioid prescriptions that, according to Petitioner, were not medically indicated. (AR 62-63; see also Reply 1-2, citing AR 78.) Petitioner reported she was not allotted sufficient time to provide proper care and treatment to the complex patients assigned to her care. (AR 62-67; see also 53 [Bonman testimony].) Petitioner also testified late documentation was a common problem at MLK. (AR 68.) Petitioner advised she informed her supervisors of her backlog in clinical documentation, and she made requests for accommodations. Petitioner believed her supervisors “shut [her] down,” humiliated and isolated her, and did not help her address the problem. (AR 67.) Petitioner also points out she met expectations in all performance areas when she first started her employment with MLK. (See AR 93-97.)

However, Petitioner’s cited testimony must be considered in context of the unrebutted evidence that Petitioner’s clinical documentation omissions persisted for more than a year in 2018-2019. (See e.g., AR 7-37, 453-457.) Petitioner has not rebutted the findings that such deficiencies in clinical documentation “represented incompetence on her part” and “posed a direct threat to patients.” (AR 573.) Indeed, Petitioner admitted that inadequate documentation of patient interactions created a “patient safety issue.” (AR 75.) Bonman (Petitioner’s witness) agreed it could be unreasonable for a substantial number of medical cases to be missing provider notes and deficiencies in clinical documentation create a risk to patients. (AR 55-56.) Bonman also testified, unlike Petitioner, she was able to complete her work at MLK. (AR 57.)

Contrary to Petitioner’s assertion, the weight of the evidence supports the hearing committee’s implied finding there was no excuse for Petitioner’s “consistent failure” to complete her clinical documentation in a timely manner. (AR 573.) Trinh and Rothman testified, and the FPPE also demonstrates, Petitioner’s workload was consistent with or less than that of her peers at MLK; Petitioner had two dedicated sessions of administrative time each week; and, unlike many other physicians at MLK, Petitioner did not sit on any committees or participate in resident teaching. (AR 456, 33, 7-27.) Also significant, Petitioner’s supervisors first learned of the deficiencies in Petitioner’s clinical documentation in or about August 2018 from other physicians who were seeing Petitioner’s patients and not from Petitioner herself. (AR 7, 331; see also AR 67.) While Petitioner advised her supervisors she was concerned the problem would get “out of control,” her clinical documentation backlog was already substantial at that time. (AR 67.)

Further, the weight of the evidence supports the findings that Petitioner’s “supervisors’ efforts to accommodate [Petitioner’s] situation were reasonable”; Petitioner did not present any “clear plan . . . as to how she would be able to catch up her huge backlog and prevent such backlog from happening in the future”; and Petitioner “would have failed to clear her charting backlog no matter what further remediation efforts had been employed by her supervisors.” (AR 573-574; see e.g., AR 7-37, 61-77, 333-346, 394-420, 453-457, 463-464.)

For example, Trinh and Rothman proposed various strategies for Petitioner to improve her performance, including charting electronically while talking to the patient and preparing what she could in the medical record in advance of the patient’s appointment. (AR 9-10, 29, 331-332, 380-381.) In her testimony, Petitioner admitted she did not follow through on proposed strategies. (AR 67.) Petitioner did not complete the training Trinh offered on software that would enable her to use “smart phrases” in her medical charting; and Petitioner declined to make entries into the electronic record while meeting with patients, saying “I can’t do that. I can’t like multitask . . . .” (AR 67.)

Petitioner never requested, on her own initiative, to use overtime to reduce her backlog because she doubted it would be approved and because it was “too much work" to fill out the forms and send them in. (AR 64-65.) Even when overtime was offered by her supervisors, Petitioner only used 3.5 hours of overtime to work on her backlog of clinical documentation. (AR 20, 33-34.) Petitioner also declined a flexible schedule offered by her supervisors to accommodate her commute. (AR 457, 33-34.) Petitioner’s supervisors also advised Petitioner the Wellness Center was an available resource for stress management. (AR 573.) Petitioner felt “humiliated” by the suggestion “and completely shut down.” (AR 67.)

Petitioner contends “Respondent forced her to apply for renewal of her credentials while she was on medical leave for depression, and did not provide an opportunity to complete the Focused Professional Practice Evaluation after her medical leave had ended.” (Opening Brief 12:2-4.) Petitioner’s claim Respondent “forced” her to apply for recredentialing during her medical leave is unsupported. While Petitioner’s medical leave prevented Petitioner from completing all six months of the FPPE, Trinh concluded the five months Petitioner did work were sufficient to enable him to issue an FPPE report. (AR 453-457. See also AR 17-24.) Petitioner has not demonstrated Trinh’s determination Respondent had sufficient observations of Petitioner’s performance to complete the FPPE was unreasonable or conflicted with any of Respondent’s policies.

In reply, Petitioner argues her “inability to timely complete her medical records should have been appropriately assessed in light of her medical condition which resulted from work

stress . . . .” (Reply 5:6-7.) Petitioner did not develop the argument in her Opening Brief and Respondent has not had any opportunity to address it.

“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 new argument in reply. Nor has Petitioner developed the argument in reply with legal analysis or citation to authority. (See Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549, 588. [“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ ”]) The court rejects Petitioner’s new reply argument for both of these reasons.

Furthermore, the evidence shows Petitioner completed five months of the six-month FPPE period before she went on medical leave. Petitioner went on leave shortly before the September 2019 completion date for the FPPE. The five months Petitioner did work during the FPPE period demonstrated a clear, unexcused pattern of deficiencies in Petitioner’s clinical documentation. Petitioner does not show that an additional month for an evaluation period could have made a difference.

The hearing committee also found that “little evidence was received regarding [Petitioner’s] medical leave” and Petitioner was "cleared to return to work on July 9, 2021.” (AR 572.) Petitioner does not challenge those findings. Petitioner also cites no policies or other legal authority suggesting, in such circumstances, Respondent had a legal duty to give more consideration than it did to the reasons for her medical leave. Considering that patient safety was at issue and supported the decision to deny Petitioner’s application for recredentialing, the court finds Petitioner’s contentions regarding her medical leave to be unsupported and unpersuasive.

Exercising its independent judgment on the whole record, the court concludes that the weight of the evidence supports all of the administrative findings. (AR 570-574.) Petitioner has not shown Respondent prejudicially abused its discretion.[3]

[1] Petitioner’s Opening Brief acknowledges Petitioner’s deficiency with clinical patient notes. (See, e.g., Opening Brief 8:5, 8:20.)

[2] According to Rothman, a FPPE is “ a more focused kind of review of a provider’s performance that’s a shorter time period that is used to, . . ., correct deficiencies or correct issues that were identified during – during the re-credentialling process.” (AR 17.)

[3] Petitioner makes certain factual assertions in her Opening Brief that apparently arose after she initiated this proceeding. (See Opening Brief 10:11-28.) Given the events alleged occurred after the administrative proceedings, they are outside the administrative record, and they are unsupported with any citations to the administrative record. The court therefore does not address events occurring after August 19, 2022.