Midstate Med. Ctr. v. Doe

Disruptive Patient

Midstate Med. Ctr. v. Doe, No.
CV-06-4005623S (Conn. Super. Ct. May 3, 2006)

The Connecticut Superior Court
granted a hospital’s request for an injunction and ordered a patient to cooperate
with the hospital’s attempts to discharge her or transfer her to an appropriate
care setting. The court noted that the patient’s condition had been stabilized
and she no longer required acute care services, and found that her "distaste" for
nursing homes and other subacute care facilities did not warrant her continued
stay in the hospital. The court also noted that "[h]ospitals have a duty
not to permit their facilities to be diverted to the uses for which hospitals
are not intended."

 

 

Miller v. Jacoby

Miller v. Jacoby,
No. 43725-9-I (Wash. Ct. App. Div. 1 August 28, 2000)

Trial court granted summary judgment for malpractice defendants based on plaintiff’s
failure to provide expert testimony. Plaintiff appealed, arguing that expert
testimony is not required when evidence is presented that a foreign object was
left in the body. The Court of Appeals of Washington affirmed the summary judgment
ruling that, without expert testimony, a layperson could not determine whether
the physicians failed to act in a reasonably prudent manner.

Mileikowsky v. West Hills Hosp. Med. Ctr.

Filed 8/27/07

Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

Plaintiff and Appellant,

v.

Defendants and Respondents.

B186238

(Los Angeles County
Super. Ct. No. BS 091943)

GIL N. MILEIKOWSKY,

WEST HILLS HOSPITAL MEDICAL
CENTER et al.,

APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra
Janavs, Judge. Reversed with directions.

Spiegel Liao & Kagay, Charles M. Kagay; Law Offices of Paul M. Hittelman and
Paul Hittelman for Plaintiff and Appellant.

Fenigstein & Kaufman, Ron S. Kaufman and Nina B. Ries for Defendants and
Respondents.

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts 5 and 6 of the DISCUSSION.

On August 19, 2003, the governing board of respondent West Hills Hospital and
Medical Center (Hospital) upheld the dismissal, by the hearing officer, of appellant
Gil N. Mileikowsky’s challenge to respondent Hospital’s medical staff’s (Medical Staff)
decision to deny appellant staff privileges. The dismissal was based on the fact that
appellant declined to furnish documents relating to proceedings involving appellant at
Cedars-Sinai Medical Center (not a party hereto). On August 19, 2004, appellant filed a
petition for a writ of mandate that challenged the governing board’s decision. The trial
court denied the petition.

We reversed the trial court’s order in an opinion filed on June 8, 2007. Both
parties petitioned for a rehearing. We granted both petitions in order to fully consider the
points raised in the petitions for rehearing. Having done so, we again reverse with
directions.

FACTS
1. Appellant Requests Hospital Privileges, Which Are Denied; the Convocation by
Hospital, at Appellant’s Request, of an Administrative Peer Review Process

Appellant is a physician and surgeon licensed to practice medicine in California;
he is board certified in obstetrics and gynecology with a subspecialty in infertility. On
May 18, 2001, he applied for reappointment to the Hospital’s Medical Staff. At the time
of this application, he had gynecology privileges at the Hospital. The scope of this
privilege appears uncertain at this point. According to the Hospital and the Medical
Staff,1 appellant had only courtesy gynecology privileges; respondents state that a
courtesy privilege is given to physicians who use the Hospital only infrequently.
Appellant, on the other hand, claims that his “privileges covered a full range of
gynecological but not obstetrical services.” Appellant’s application in May 2001 was for
an extension of his gynecology privileges for the 2001-2003 term, and for additional
obstetrical privileges for the same term.

1
The Hospital and the Medical Staff are sometimes referred to collectively as
respondents.

2

The president of the Medical Staff informed appellant by way of a letter dated
April 24, 2002, that Medical Staff’s medical executive committee denied appellant’s
application for gynecology and obstetrical privileges. The letter gave several reasons.
First, the letter stated that appellant had failed to notify the Medical Staff that appellant’s
privileges at Century City Hospital had been terminated on November 7, 2000. Next,
while appellant’s application stated that he had voluntarily resigned from the Encino-
Tarzana Medical Center, documentation showed that he had been summarily suspended
on November 16, 2000. The letter also detailed an incident in respondent Hospital when
a patient specifically requested that appellant not be allowed to see her, yet appellant
insisted on seeing her, and claimed he had obstetrical privileges at the Hospital when that
was not the case. The letter stated that this incident did not meet the Medical Staff’s
professional and ethical standards. Appellant notified the Medical Staff that he appealed
this decision.

Pursuant to its bylaws, the Hospital appointed a “Judicial Review Committee”
(JRC) and a hearing officer, attorney John D. Harwell. Under the bylaws, the hearing
officer is to preside over the hearings held by the JRC and “shall not act as a prosecuting
officer or advocate, and shall not be entitled to vote.” The bylaws provide that the
hearing officer may not be legal counsel to the Hospital or the Medical Staff and “shall
gain no direct financial benefit from the outcome.”

On June 17, 2002, Harwell wrote to appellant and to the president of the Medical
Staff a letter in which he stated that he had been appointed as the hearing officer. The
letter stated that Harwell was “a hearing officer in another matter involving [appellant],”
that Harwell had reviewed the charges against appellant made by the Medical Staff and
that he found “no overlap of charges, incidents, facts or other circumstances with the
other matter in which I [Harwell] am involved.” The other matter in which Harwell was
a hearing officer were proceedings involving appellant and Century City Hospital.

Appellant chose to represent himself in the JRC proceedings. On July 1, 2002, a
hearing was convened by the JRC which was opened by Harwell’s statement that “[t]his
is the first voir dire” in the matter of appellant’s appeal from the decision denying him

3

hospital privileges. Appellant then proceeded to question Harwell; the transcript of
appellant’s examination of Harwell is approximately 50 pages long. The thrust of
appellant’s questioning was to demonstrate that Harwell could not serve as a fair,
unbiased hearing officer.
2. Appellant’s Failure To Produce the Cedars-Sinai Documents; the Hearing Officer’s
Order Terminating the Hearing; Hospital’s Approval of the Hearing Officer’s Decision

On July 16, 2002, Harwell wrote appellant and the president of the Medical Staff,
stating that the exchange of documents should be completed between then and Labor
Day. No mention was made of documents involving appellant and Cedars-Sinai Medical
Center.

On July 17, 2002, Medical Staff’s counsel, attorney James R. Lahana, wrote
appellant stating, among things, that: “Further, please be advised that the Medical Staff
still has not received copies of the Notice of Charges, findings of the Hearing Committee
and transcripts and exhibits concerning the summary action which was taken against you
at Cedars-Sinai Medical Center despite prior requests for such information. Previously,
you refused to provide copies claiming that the attorney from Cedars-Sinai Medical
Center did not authorize you to release those documents even though you are no longer a
member of that staff. As a result of your refusal to provide the requested information,
your application for reappointment remains incomplete. Please be aware your continued
failure to provide these materials by July 28, 2002 will result in the Medical Staff
amending its Notice of Charges to include allegations concerning your failure to
cooperate, as well as including a reference to the Cedars-Sinai Medical Center suspension
based upon the limited information contained in the Business and Profession Code
Section 805 report and National Practitioner Data Bank report submitted by Cedars-Sinai
Medical Center.” The Cedars-Sinai documents requested by the Medical Staff are
referred to hereafter collectively as the “Cedars-Sinai documents.”

In a letter dated July 29, 2002, addressed to the president of the Medical Staff,
appellant wrote that he would be “able to respond” by August 5, 2002. Appellant,
however, did not respond. On August 21, 2002, the Medical Staff amended the Notice of

4

Charges to include appellant’s failure to furnish the Cedars-Sinai documents. This
amendment also added as an additional charge that appellant’s privileges were first
suspended and then revoked by Cedars-Sinai.2

On September 3, 2002, appellant wrote hearing officer Harwell, stating that he
would “not be able to respond to the latest correspondence from West-Hills till 9-10.”
On October 3, 2002, the Medical Staff wrote Harwell that appellant had not furnished the
Cedars-Sinai documents. On November 27, 2002, the Medical Staff again wrote
Harwell, stating that the Medical Staff had attempted to set a hearing on “numerous
occasions” but that appellant had not been “responsive to the Medical Staff’s efforts at
moving this case to [a] conclusion.” This letter stated that appellant had not furnished the
Cedars-Sinai documents.

On January 12, 2003, appellant wrote the Medical Staff, with a copy to Harwell, a
lengthy letter in which he demanded that his privileges be reinstated and that the
proceedings involving his privileges be dismissed. Among other things, this letter stated
that, as far as the Cedars-Sinai documents were concerned, appellant had provided the
Medical Staff with “2 [s]igned [r]eleases authorizing both [h]ospitals to exchange any
information they [w]ish a long time ago.”

The Medical Staff responded to this by a letter dated January 14, 2003, addressed
to Harwell, which stated that appellant “ignores the fact that he or his counsel have in
their possession the very documents being sought and that the burden is on [appellant] to
produce that information, not upon Cedars.” This letter requested that appellant’s
“appeal be dismissed based upon his willful disregard of the July 29, 2002 order and his
failure to produce the required documentation.”

2
The amendment also added charges relating to appellant’s alleged failure to
cooperate with the application process and allegations that appellant had engaged in
disruptive conduct.

5

By a letter dated February 5, 2003, Harwell handed down a ruling on the Medical
Staff’s request for terminating sanctions, as well as on number of matters that are not
material to this appeal.

The section of the February 5, 2003 letter that addressed the Medical Staff’s
request for terminating sanctions noted that appellant had refused to provide the Cedars-
Sinai documents to the Medical Staff “apparently on the basis that the counsel for
Cedars-Sinai has instructed [appellant] not to reveal these documents and further
[appellant] directs the [Medical Staff] to obtain the documents from Cedars-Sinai
directly.” The letter states that appellant’s response was not “adequate.” The reason for
this, according to the letter, is that the Medical Staff’s bylaws and Business and
Professions Code section 809.2, subdivision (d)3 “oblige [appellant] to make available for
inspection and copying all documents relevant to the Notice of Charges.” The letter goes
on to note that the Cedars-Sinai documents are “clearly relevant” to the Notice of
Charges.

The February 5, 2003 letter then proceeded to discuss the law relating to
terminating sanctions issued for an abuse of the discovery process under the Civil
Discovery Act (Code Civ. Proc., § 2016.010 et seq.). The letter does not cite any
authorities that empower a hearing officer in a peer review proceeding4 to terminate the

3
Business and Professions Code section 809.2, subdivision (d) provides in relevant
part: “The peer review body shall have the right to inspect and copy at the peer review
body’s expense any documentary information relevant to the charges which the licentiate
has in his or her possession or control as soon as practicable after receipt of the peer
review body’s request. The failure by either party to provide access to this information at
least 30 days before the hearing shall constitute good cause for a continuance. . . . The
arbitrator or presiding officer shall consider and rule upon any request for access to
information, and may impose any safeguards the protection of the peer review process
and justice requires.” We will refer to this provision as “section 809.2(d).”

All further references to statutes are to the Business and Professions Code unless
otherwise noted.
4
As we discuss in part 1 of our DISCUSSION, post, peer review proceedings are
governed by section 809.05 et seq.

6

hearing because one of the parties to the proceeding has failed to produce documents
demanded by the other party. The letter concludes by stating that appellant’s “refusal has
been wilful [sic], in that it is deliberate and intentional, even if taken in error.” The letter
ordered appellant to produce the Cedars-Sinai documents and stated that if the documents
were not produced, “terminating sanctions will be imposed.”

Appellant did not produce the documents, but requested until March 14, 2003, to
respond. That date came and went; on March 18, 2003, Harwell wrote the parties another
letter in which he stated that appellant was required to produce the Cedars-Sinai
documents by March 24, 2003, “or terminating sanctions will be ordered.” The
documents were not produced by appellant.

The next step in the process was a document captioned “BEFORE THE
JUDICIAL REVIEW COMMITTEE [¶] WEST HILLS HOSPITAL” and entitled
“Order Terminating Hearing for Failure of [Appellant] to Comply with Discovery
Orders.” (Boldface omitted.) This document, dated March 27, 2003, was signed solely
by Harwell in his capacity as hearing officer; we will refer to this document as the
“terminating order.”

The text of the terminating order reviewed the history of the matter, which we
have set forth above, and then addressed the powers of the hearing officer. The
terminating order notes that section 809.2(d) and section 10.3-2 of article X of the
Hospital’s bylaws require the parties to make available for inspection and copying
documents that relate to the pending charges; section 10.3-2 is, in substance, the same as
section 809.2(d). (See fn. 3, ante.) The terminating order also notes that section 10.1-7
of article X of the bylaws provides that failure to appear at, and to proceed with, the
hearing shall be deemed to constitute voluntary acceptance of the recommendation or
action that is the subject of the hearing. The terminating order then examines the power
of courts to issue terminating sanctions for discovery abuses and the decision in Webman
v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592 (Webman), which the
terminating order states is “eerily similar” to this case. The terminating order concludes
that appellant’s refusal to produce the Cedars-Sinai documents justified terminating

7

sanctions and that, for this reason, “the request of the Medical Staff to dismiss
[appellant’s] requested hearing is granted and pursuant to the Bylaws, Section 10.1-7, ‘to
constitute voluntary acceptance of the recommendations or actions involved, which shall
become effective immediately.’ ”

Appellant appealed this decision to the Hospital’s governing board, which
appointed a committee to hear the matter.5 Among other contentions, appellant
contended in this appeal that the hearing officer did not have the power to terminate the
hearing. The governing board disagreed, specifically finding that appellant was afforded
a fair hearing procedure and that the decision of the hearing officer “in dismissing the
appeal of [appellant], was reasonable and warranted, supported by the weight of the
evidence, and the Committee of the Governing Board recommended that it be accepted in
its entirety. [¶] . . . Accordingly, the adoption of the decision of the Hearing Officer
appointed to the Medical Review Committee is the final action of the Governing Board.”
This final decision is dated August 19, 2003.6
3. The Trial Court’s Reasons for Finding That the Hearing Officer Was Empowered
To Terminate the Hearing

The trial court rejected appellant’s contention that the hearing officer was not
empowered to issue an order terminating the hearing, as a sanction for appellant’s failure
to produce the Cedars-Sinai documents. The trial court gave four reasons for this.

First, the trial court found that the hearing officer’s decision was authorized by
section 809.2(d), and section 10.3-2c of the bylaws, which provide that the hearing
officer “shall consider and rule upon any request for access to information, and may
impose any safeguards the protection of the peer review process and justice requires.”
The trial court concluded that this provision empowered the hearing officer to terminate
the hearing as a sanction for appellant’s failure to produce the Cedars-Sinai documents.

5
Appellant was represented by counsel at this point and continued to be represented
by counsel throughout the ensuing proceedings.
6
The actual document erroneously gives the year as 2002.

8

Second, the trial court found that appellant’s failure to produce the documents in
question prevented the JRC from properly performing its function of evaluating
appellant’s fitness to practice medicine.

Third, the court referred to the fact that appellant himself had demanded
terminating sanctions because the Medical Staff refused to turn over documents
demanded by appellant.

Fourth, the interests of justice warranted the termination of the hearing, because
the termination of the hearing ensured that appellant would not benefit from his refusal to
furnish the Cedars-Sinai documents.

DISCUSSION
1. The Hearing Officer Was Not Empowered To Terminate the Hearing Prematurely

We begin with the fact that the Legislature decreed that California should “design
its own peer review system” (§ 809, subd. (a)(2)), and that the Legislature has done just
that in section 809.05 through and including section 809.9. Section 809.2 is of particular
significance to this appeal.

Before turning to section 809.2, it is important to understand the context in which
section 809.2 operates.

Section 809.1, subdivision (a) provides that a “licentiate who is the subject of a
final proposed action of a peer review body for which a report is required to be filed
under Section 805 shall be entitled to written notice as set forth in subdivisions (b) and
(c). For the purposes of this section, the ‘final proposed action’ shall be the final decision
or recommendation of the peer review body after informal investigatory activity or
prehearing meetings, if any.” In this case, a section 805 report was required because
appellant’s application for staff privileges or membership was “denied or rejected [or
terminated or revoked] for a medical disciplinary cause or reason.” (§ 805, subd. (b)(1)
& (2).) Once the licentiate has been notified of the “final proposed action,” the licentiate
may request a hearing on the final proposed action. (§ 809.1, subd. (b)(3).) Appellant
made such a request in this case.

9

The hearing that ensues is governed by section 809.2, which is reasonably detailed
in setting forth the requirements of a hearing. Subdivision (a) sets forth who is the “trier
of fact” in a hearing held under section 809.2.7 A decision regarding the final proposed
action of the peer review body is made by the trier of fact, as that agency is defined in
subdivision (a) of section 805. (See fn. 7, ante.)

Section 809.2 specifically provides for a hearing officer. Subdivision (b) of
section 809.2 (§ 809.2(b)) states: “If a hearing officer is selected to preside at a hearing
held before a panel, the hearing officer shall gain no direct financial benefit from the
outcome, shall not act as a prosecuting officer or advocate, and shall not be entitled to
vote.” The provision that the hearing officer is not entitled to vote refers necessarily to a
vote on the merits, i.e., whether the final proposed action should be affirmed or vacated.
Given that the composition of the trier of fact is weighted toward ensuring that medical
specialists review the final proposed action, it makes sense to exclude the hearing officer,
whose functions and expertise should center on the conduct of the hearing, from that
decision. There is the further consideration that it would make no sense to deprive the
hearing officer of the right to “vote” on procedural decisions, since this is the area of the
hearing officer’s expertise and role in the hearing. The most sensible construction is that
the reference to a “vote” is a reference to the deliberations of the trier of fact, which is a
body composed of several members who cast votes to produce the decision of that body.

Section 809.3, subdivision (a) (§ 809.3(a)) sets forth the procedural rights of the
parties in a hearing that is convened under section 809.2.8 In the context of this case, we

7
Section 809.2, subdivision (a) (§ 809.2(a)) states: “The hearing shall be held, as
determined by the peer review body, before a trier of fact, which shall be an arbitrator or
arbitrators selected by a process mutually acceptable to the licentiate and the peer review
body, or before a panel of unbiased individuals who shall gain no direct financial benefit
from the outcome, who have not acted as an accuser, investigator, factfinder, or initial
decisionmaker in the same matter, and which shall include, where feasible, an individual
practicing the same specialty as the licentiate.”
8
Section 809.3(a) provides: “During a hearing concerning a final proposed action
for which reporting is required to be filed under Section 805, both parties shall have all of

10

define a “premature termination” to be one when either one of the parties has not been
afforded the opportunity to exercise the rights set forth in section 809.3(a). There is no
question that this case qualifies as one when the hearing was prematurely terminated, in
that no hearing ever took place when appellant could avail himself of the rights set forth
in section 809.3(a), particularly the rights set forth in subdivision (a)(3), (4) and (5). (See
fn. 8, ante.)

The decision to prematurely terminate a hearing convened under the authority of
section 809.2 is a decision that lets stand the final proposed action of the peer review
body that, in the first place, was the cause of the request for a hearing. Since the sole
object of a hearing held pursuant to section 809.2 is to reverse, or affirm, the final
proposed action, the decision to terminate the hearing with the effect of letting the final
proposed action stand is therefore clearly a decision on the merits. This result is
confirmed by the terminating order of the hearing officer in this case which expressly
confirmed that appellant was deemed to have accepted the Medical Staff’s action (the
final proposed action), “ ‘which shall become effective immediately.’ ”

A decision on the merits, however, is consigned to the trier of fact as that body is
defined in section 809.2(a); section 809.2(b) expressly denies the hearing officer the right
to vote on the merits. Therefore, in this case, the hearing officer’s decision to
prematurely terminate the hearing ran afoul of the fundamental provision of section 809.2
that the hearing officer is not empowered to make a decision regarding the final proposed
action of the peer review body.

We are not persuaded by respondents’ contention that the “hearing officer made
only procedural decisions about the Medical Staff’s rights to inspect and copy the

the following rights: [¶] (1) To be provided with all of the information made available to
the trier of fact. [¶] (2) To have a record made of the proceedings, copies of which may
be obtained by the licentiate upon payment of any reasonable charges associated with the
preparation thereof. [¶] (3) To call, examine, and cross-examine witnesses. [¶] (4) To
present and rebut evidence determined by the arbitrator or presiding officer to be
relevant. [¶] (5) To submit a written statement at the close of the hearing.”

11

Cedars[-Sinai] documents and about how to safeguard a fair hearing process”
(capitalization and boldface omitted) and that all the hearing officer did was to level the
playing field. For one, what we have referred to as the hearing officer’s terminating
order specifically stated that the final proposed action taken by the Medical Staff — the
action which was supposed to be, but never was, reviewed in a hearing convened under
section 809.2 — was to be effective immediately. No amount of labeling such a decision
as “procedural” can obscure the fact that when, as here, a hearing is terminated
prematurely (as we have used that expression), the operative effect is to let stand the final
proposed action, which, in and of itself, is the critical decision on the merits. While the
hearing officer should at all times strive to “level the playing field,” leveling the field
does not extend to handing the Medical Staff (or the licentiate) without a hearing by the
peer review body the final resolution that it seeks, which, in this case, was the denial of
privileges.

The Hospital’s governing board adopted as its own the hearing officer’s decision
to prematurely terminate the hearing. There is no provision in section 809.2, however, or
any of its companion sections, that empowers anyone, including the trier of fact and the
body that hears an appeal from the decision of the trier of fact, to prematurely terminate a
hearing convened under section 809.2 before a party has been accorded an opportunity
to exercise the rights set forth in section 809.3(a). (See fn. 8, ante.)

The hearing officer drew on jurisprudence dealing with terminating sanctions
under the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) in concluding that, as
a hearing officer, he was empowered to issue terminating sanctions. There are three
reasons why this conclusion is erroneous.

First, the right to inspect and copy documentary information that is granted to the
parties by section 809.2(d) (see fn. 3, ante) is not to be confused with discovery under the
Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.). The Civil Discovery Act
applies to a pending “action,”9 which is defined as a “civil action” and a “special

9
Code of Civil Procedure section 2017.010.

12

proceeding of a civil nature.”10 (See generally 1 Hogan & Weber, Cal. Civil Discovery
(LexisNexis 2005) § 1.6, pp. 1-10 to 1-14.) While the statute does not define a special
proceeding of a civil nature (id. at p. 1-10), it has been held that this language refers to a
proceeding in a court of law. (McRae v. Superior Court (1963) 221 Cal.App.2d 166,
170.) Other than in civil actions, the Civil Discovery Act applies to judicial arbitration,
to contractual arbitration to a limited extent, to administrative proceedings involving state
agencies,11 in eminent domain proceedings, in State Bar disciplinary proceedings and to
sexually violent predator civil commitment proceedings. (1 Hogan & Weber, Cal. Civil
Discovery, supra, § 1.6, pp. 1-10 to 1-14; 2 Witkin, Cal. Evidence (4th ed. 2000)
Discovery, § 6, p. 860.)12 The right to inspect and copy documentary information under
the provisions of section 809.2(d) is not subject to the Civil Discovery Act.

Second, terminating sanctions under the Civil Discovery Act are a creature of
statute. The general authority for terminating sanctions under the Civil Discovery Act is
subdivision (d) of Code of Civil Procedure section 2023.030; terminating sanctions in
specific settings are also specifically governed by statutory law.13 Apart from the

10
Code of Civil Procedure section 2016.020, subdivision (a).
11
Discovery in administrative proceedings involving state agencies is governed by
Government Code section 11507.5 et seq.
12
“The procedure may also be invoked in administrative proceedings [citation], in
judicial arbitration proceedings [citations], and, to a limited extent, in conventional
arbitration proceedings [citations]. (See C.E.B., 1 Civil Discovery Practice 3d, §2.6 et
seq.; on use in eminent domain proceedings, see infra, §200 et seq.; on use in State Bar
disciplinary proceedings, see Brotsky v. State Bar (1962) 57 Cal.2d 287, 301, 19 C.R.
153, 368 P.2d 697, 1 Cal. Evidence (4th), Introduction, §75; on criminal discovery, see 5
Cal. Crim. Law (3d), Criminal Trial, §27 et seq.)” (2 Witkin, Cal. Evidence, supra,
Discovery, § 6, p. 860.)
13
“In addition to general authorization in C.C.P. 2023(b)(4), numerous provisions
throughout the 1986 Act permit the imposition of terminating sanctions. (See, e.g.,
C.C.P. 2025(j)(3), 2025(o) [deponent’s failure to obey order compelling attendance,
testimony, or production of documents]; 2030(k), 2030(l) [failure to obey order
compelling response or further response to interrogatories]; 2031(l), 2031(m), 2031(n)
[failure to obey order compelling response or further response to demands for inspection

13

authority granted under these statutes to terminate a civil action or a special proceeding of
a civil nature, there is no power to terminate either a civil action or a special proceeding
of a civil nature as a discovery sanction. There is no statute that grants a hearing officer
named under section 809.2(b), or the trier of fact as defined in section 809.2(a), the
power to prematurely terminate a hearing as a sanction for failure to make documents
available to the other party. Apart from statute, there is no “common law” that authorizes
terminating sanctions for the failure of a party to comply with section 809.2(d).

Third, section 809.2 specifically addresses the consequence of a failure to provide
information requested under section 809.2(d).14 The only procedural consequence of
failure to provide information requested under section 809.2(d) is that it “shall constitute
good cause for a continuance.” While, as we point out below, the failure to provide
requested documentation may have also substantive consequences, the only procedural
sanction allowed by the statute is a continuance of the hearing. There is no authority to
add to this provision a further power to terminate a hearing prematurely for failure to
produce requested documentation.

or order compelling inspection]; 2032(f) [failure to submit to, or to produce another for,
physical or mental examination]; 2032(h), 2032(j) [failure to obey order compelling
delivery of medical reports].)” (2 Witkin, Cal. Evidence, supra, Discovery, § 257,
p. 1079.)
14
That the production of documentary information under section 809.2(d) is
intended to be governed by section 809.2 and not by rules pertaining to civil discovery is
also made apparent by subdivision (e) of section 809.2, which lays down the rules and
procedures, unique to section 809.2, that are to be followed in determining whether
requested documentation is relevant. Subdivision (e) provides: “When ruling upon
requests for access to information and determining the relevancy thereof, the arbitrator or
presiding officer shall, among other factors, consider the following: [¶] (1) Whether the
information sought may be introduced to support or defend the charges. [¶] (2) The
exculpatory or inculpatory nature of the information sought, if any. [¶] (3) The burden
imposed on the party in possession of the information sought, if access is granted. [¶]
(4) Any previous requests for access to information submitted or resisted by the parties to
the same proceeding.”

14

The trial court found that the hearing officer’s decision was authorized by section
809.2(d), and section 10.3-2c of the bylaws, which provide that the hearing officer “shall
consider and rule upon any request for access to information, and may impose any
safeguards the protection of the peer review process and justice requires.” The trial
court’s conclusion does not take into account the context of the hearing officer’s
empowerment to “safeguard” the process. In relevant part, section 809.2(d) provides:
“The right to inspect and copy by either party does not extend to confidential information
referring solely to individually identifiable licentiates, other than the licentiate under
review. The arbitrator or presiding officer shall consider and rule upon any request for
access to information, and may impose any safeguards the protection of the peer review
process and justice requires.” The word “safeguards” refers to the problem raised by the
sentence that precedes this word, which is “confidential information referring solely to
individually identifiable licentiates, other than the licentiate under review.” It is this right
of persons who are not parties to the hearing — confidential information referring to other
licentiates — that the arbitrator or presiding officer is empowered to “safeguard.” We do
not agree that the provision that empowers the arbitrator or presiding officer to “impose
any safeguards [that] the protection of the peer review process and justice requires” is
authority to terminate the hearing prematurely, especially since: (1) such power is
conferred only and expressly by statute and (2) there is no such statute when it comes to a
hearing held pursuant to section 809.2.
The hearing officer concluded that Webman, supra, 39 Cal.App.4th 592 authorizes

the premature termination of the hearing process under section 809.2 or, in the hearing
officer’s terms, the termination of the hearing for appellant’s failure to comply with
discovery orders. We do not agree.
In Webman, the physician was denied reappointment to the medical staff of Little

Company of Mary Hospital (LCMH) on the ground that he refused to furnish
documentation requested by LCMH that addressed proceedings adverse to the physician,
Dr. Webman, that had taken place at Memorial Hospital of Gardena (Memorial Hospital).
After protracted proceedings that we need not summarize, during which Dr. Webman had

15

ample opportunity to, but did not, furnish the requested documentation from Memorial
Hospital, first a subcommittee, and then the committee of LCMH’s medical staff
concluded that Dr. Webman should not be reappointed because he had failed to cooperate
with the reappointment process. The medical executive committee accepted this
recommendation, denied reappointment, and notified Dr. Webman of his right to have the
JRC consider the matter. (Webman, supra, 39 Cal.App.4th 592, 598.)

Dr. Webman requested a hearing before the JRC. The charge against him was that
he had failed to produce information “ ‘for a proper evaluation’ ” and prevented the
Department of Medicine from “ ‘fully reviewing [his] professional competence.’ ”
(Webman, supra, 39 Cal.App.4th at p. 598.) The court in Webman summarized the
ensuing events: “The judicial review committee hearing took place on March 10, 1993.
After considering the documentary and testimonial evidence that was presented, the
judicial review committee concluded the medical executive committee’s recommendation
‘was reasonable and warranted.’ Dissatisfied with the outcome, appellant thereafter
sought review from the appellate review committee of the governing board of LCMH.
When that body affirmed the judicial review committee’s decision on July 20, 1993,
appellant petitioned the superior court for relief.” (Id. at p. 599.)
The first distinction between this case and Webman is that in Webman a hearing

before the JRC did take place, while in this case there was no hearing, other than the voir
dire. The second distinction is that in Webman the decision on the merits was made
before the trier of fact, as that term is defined in section 809.2(a), while in this case the
operative decision on the merits was made by the hearing officer. The third distinction is
that in this case the final proposed action (denying staff privileges) was allowed to stand
because of a “sanction” issued by the hearing officer, while in Webman the decision to
deny privileges was made by the trier of fact possessing medical expertise for reasons
that are grounded in assuring quality medical care. It is clear that Webman does not
authorize a hearing officer to prematurely terminate a hearing that is to be held pursuant
to section 809.2.

16

Webman is authority for the proposition that withholding information needed to

complete a hospital’s peer review of a physician may be grounds for denying, or
revoking, medical staff privileges.15 Whether this is, or should be, true in appellant’s
instance is, at this point, not for us to say. Such a decision is consigned to the appropriate
medical committee at the Hospital and, in case of an adverse decision and appellant’s
request for a hearing, to the trier of fact convened under section 809.2.

In connection with our last point, we note respondents’ contention that Drs.
Matthew and Vener, members of Medical Staff’s medical executive committee, made the
original request for the Cedars-Sinai documents. According to the Hospital and Medical
Staff, this means that it was the Medical Staff, and not the hearing officer, who
determined that the Cedars-Sinai documents were critical to “the presentation of the
Medical Staff’s position at the JRC hearing.” (Capitalization and boldface omitted.)

This contention confuses the function of the Medical Staff in formulating the final
proposed action with the hearing process that is initiated once the final proposed action
has been taken, and the licentiate has requested a hearing to review the final proposed
action. As we have noted, the original charges against appellant were amended on
August 21, 2002, to include his failure to provide the Medical Staff with the Cedars-Sinai
documents. While it is obvious that medical judgment was brought to bear on the denial
of privileges and the charges, including the amendment of the charges on August 21,
2002, that constitute the final proposed action, the whole point is that medical judgment

15
“LCMH’s actions were entirely reasonable given the facts of this case. To
conclude otherwise would permit appellant to prevent LCMH from acting ‘in the interest
of maintaining and enhancing quality patient care’ (Bus. & Prof. Code, § 809.05, subd.
(d)), by first withholding information LCMH needed to complete its investigation and
then withdrawing the authorization LCMH required to gain access to the germane records
or acquire knowledge of their contents from the only other logical source, [Memorial
Hospital]. Such a result would also fly in the face of this state’s policy of protecting the
health and welfare of its residents by excluding, through a peer process, ‘those healing
arts practitioners who provide substandard care or who engage in professional
misconduct . . . .’ (Bus. & Prof. Code, § 809, subd. (a)(6).)” (Webman, supra, 39
Cal.App.4th 592, 602-603.)

17

was not brought to bear during the hearing process that was convened to review the final
proposed action. Indeed, in Webman that is exactly what happened: it was the peer
review body — and not the hearing officer — which convened to review the final proposed
action under section 809.2 that determined that Dr. Webman’s failure to cooperate
justified the final proposed action taken in his case.
The Hospital and the Medical Staff contend that the decision in Mileikowsky v.

Tenet Healthsystem (2005) 128 Cal.App.4th 531 (Tenet Healthsystem) confirms that the
hearing officer acted within his authority to impose terminating sanctions. Tenet
Healthsystem involves the same appellant who is before us in this case.
Tenet Healthsystem involved the termination of appellant’s staff privileges at

Encino-Tarzana Regional Medical Center. After a very contentious and difficult
beginning,16 the hearing that was convened under the authority of section 809.2
commenced in January 2001. Voir dire and procedural matters took up seven sessions
that extended over the next eight months; “actual substantive matters were not addressed
until August 16, 2001, when opening statements were made. Over the course of the next
16 sessions which took place between August and December 2001, the Hospital called
witnesses to testify in support of the charges.” (Tenet Healthsystem, supra, 128
Cal.App.4th at p. 546.)

The course of these hearing sessions was tumultuous, and is set forth in detail in
Tenet Healthsystem, supra, 128 Cal.App.4th at pages 540-548. The essence of the matter
was captured in the hearing officer’s rulings in December 2001 and January 2002 in
which he attempted to impose some controls on appellant’s conduct; we set forth these

16
Appellant’s privileges that were the subject of Tenet Healthsystem were initially
denied in 1998; this decision was rescinded, but his application for reappointment was
denied in January 2000. (Tenet Healthsystem, supra, 128 Cal.App.4th 531, 537-538.)
The complications before the hearing ever commenced are chronicled by the court at 128
Cal.App.4th at pages 538-546, but these events are not germane to our discussion of the
Tenet Healthsystem decision.

18

rulings in the margin.17 The hearings officer’s efforts to bring appellant under control
failed, however, in that appellant stated in writing that he would not abide by the hearing
officer’s rulings of January 3, 2002. “On March 30, 2002, the hearing officer issued a
ruling formally terminating the hearing sessions, stating that ‘[t]he intentional acts of
misconduct by Dr. Mileikowsky have so prejudiced the hearing that it is impossible to
complete it consistent with the requirements of fair procedure and due process imposed
by California law’ and that ‘Dr. Mileikowsky’s repeated acts of misconduct at this
hearing have created a situation where he has waived his right to the completion of this
hearing and thereby has failed to exhaust his administrative remedies.’ ” (Id. at p. 550.)
The hearing officer gave no less than seven distinct reasons for terminating the hearing,
one of which was appellant’s failure to produce the documents that in this case we have
identified as the Cedars-Sinai documents. The other reasons dealt with appellant’s
unacceptable and abusive conduct during the hearing sessions. (Id. at pp. 550-552.)
It is, of course, evident that the termination of the hearing in Tenet Healthsystem

was a far different matter from the termination of the hearing in the case before us. First,

17
“On December 24, 2001, the hearing officer asked the parties to submit briefs
regarding his authority to declare a default based on Dr. Mileikowsky’s actions in the
following areas: failure to produce documents; failure to prepare an exhibit list and set of
exhibits; failure to submit a written statement concerning the peer review allegations; and
repeated disruption of hearing sessions by violating orders concerning questioning of
witnesses and repeated references to the lawsuits he had filed. [¶] On January 3, 2002,
the hearing officer issued a written ruling stating that Dr. Mileikowsky had ‘acted to
disrupt the orderly conduct of [the] hearing on a number of occasions’ by refusing ‘to
comply with [the hearing officer’s] Rulings regarding the examination of witnesses and
the introduction of evidence’; engaging in ‘noisy yelling at hearing sessions’ on
September 5, November 29, and December 17, 2001; and making statements containing
‘invective and personal attacks directed towards witnesses’ and others. The hearing
officer ruled that further questioning of witnesses on Dr. Mileikowsky’s behalf be done
by his assistants or representatives, that the hearings be videotaped, and that a security
officer be present in the hearing room. He stated that ‘[t]he hearing sessions shall not
reconvene until Dr. Mileikowsky responds in writing that he will comply with my rulings
regarding the conduct of this hearing, including specifically the rules set forth in this
Ruling.’ ” (Tenet Healthsystem, supra, 128 Cal.App.4th at p. 549.)

19

in Tenet Healthsystem multiple sessions of the hearing actually took place over the span
of nearly one year. In Tenet Healthsystem, appellant had full and complete opportunities
to avail himself of the rights set forth subdivision (a)(3), (4) and (5) of section 809.3 (see
fn. 8, p. 10, ante), and did avail himself of these rights. In the case before us, however,
the only session that took place in this case was the voir dire of the hearing officer and
the panel that composed the trier of fact; there was no opportunity to exercise the rights
set forth in section 809.2(a). Second, the hearing was terminated in Tenet Healthsystem
in large part because appellant made it literally impossible for the hearing to proceed in
anything like an orderly and civil fashion. In this case, the hearing was prematurely
terminated as a “discovery sanction.” While appellant’s record, as he made it in Tenet
Healthsystem, would give anyone pause who was contemplating embarking on a hearing
with appellant, the fact is that, until he forfeited them, appellant had the rights in the
instant proceedings that are enumerated in section 809.3(a).
We are in full agreement with the court in Tenet Healthsystem that a party may

well forfeit by its conduct the rights set forth in section 809.3(a). “In order to ensure that
the hearings mandated by the Business and Professions Code proceed in an orderly
fashion, hearing officers must have the power to control the parties and prevent
deliberately disruptive and delaying tactics.” (Tenet Healthsystem, supra, 128
Cal.App.4th at p. 561.) While cases such as Tenet Healthsystem are undoubtedly rare,
and while the decision to terminate a hearing should be made as cautiously as in Tenet
Healthsystem and only for conduct that is egregious such as the conduct in that case, it
cannot be doubted that the integrity of the system of peer review requires that the trier of
fact can terminate, upon a proper showing, the hearing convened pursuant to section
809.2 before a decision on the merits.
We respectfully part company with the court in Tenet Healthsystem on the

question whether the hearing officer, acting on his or her own authority, can terminate a
hearing that has been requested, and convened, under sections 809.1 and 809.2. In
substance, the court in Tenet Healthsystem found that the authority of the hearing officer
to terminate a hearing can be implied from various provisions of section 809.2, the

20

bylaws of the hospital involved in that case, and from the principle that, as a general
matter, a hearing officer has wide latitude in conducting a hearing. (Tenet Healthsystem,
supra, 128 Cal.App.4th at pp. 557-561.) The court noted that there is no express
provision in the statutes that permits a hearing officer to terminate a hearing based on a
party’s conduct in disobeying the hearing officer’s orders or for engaging in disruptive
behavior. (Id. at p. 559.)
The court in Tenet Healthsystem did not take account of the provision of section

809.2(b) that states that the hearing officer “shall not be entitled to vote.” As we have
explained (see text, pp. 10-11, ante), this is a legislative judgment that the hearing officer
should not participate in a decision on the merits, i.e., whether the final proposed action
of the peer review body should be affirmed or set aside. Yet, terminating the hearing
prior to its conclusion by a decision of the trier of fact has the operative effect of allowing
the final proposed action to stand. It is notable that allowing the hearing officer to
prematurely terminate a hearing stands section 809.2(b) on its head since this empowers
the hearing officer not only to effectively vote on the merits, it also makes the hearing
officer the sole master of that decision. We do not think that this result squares with the
express provision of section 809.2(b) that the hearing officer “shall not be entitled to
vote.”

The specific provision that deprives the hearing officer of a vote on the merits
overrides, in our opinion, the view that such a power can or should be implied from other
provisions of section 809.2, or from the general powers of a hearing officer. For this
reason, we disagree with respondents that decisions from other jurisdictions in settings
other than in the California peer review system, as set forth in section 809 et seq., are
relevant or even persuasive. Generalities about the “wide latitude” granted to hearing
officers in such other settings must yield to the specific considerations we have examined
that are unique to proceedings authorized by section 809.1 et seq.
The court in Tenet Healthsystem expressed the concern that if contested

procedural matters generally were delegated to the trier of fact, hearings would become
cumbersome and unmanageable, especially for professionals with busy schedules. The

21

court concluded that the decision to terminate the hearing in Tenet Healthsystem was
such a procedural decision, and that it would be both unwise and unfair to saddle the trier
of fact with such a decision. (Tenet Healthsystem, supra, 128 Cal.App.4th at pp. 561-
562.)
We agree that, generally, procedural matters should be consigned to the hearing

officer; in fact, the hearing officer’s function is precisely that. The decision to terminate
a hearing before a final decision of the trier of fact on the merits, with the attendant effect
of allowing the final proposed action to stand, however, is not merely a procedural
decision. It is, effectively, a decision on the merits.

We do not think that it would unduly burden the trier of fact to require it to make
the decision to terminate a hearing before a final decision on the merits. For one, such
instances can be expected to be as rare as the facts of Tenet Healthsystem. The
procedural predicates of such a decision should be consigned to the hearing officer,18 just
as these predicates were carefully executed by the hearing officer in Tenet Healthsystem,
reserving only the final decision to terminate to the trier of fact. It is also true that a
decision to terminate, under circumstances such as found in Tenet Healthsystem, gains in
stature and weight if the final decision is made by the party’s peers, and not merely by the
hearing officer.
2. The Hearing Officer’s Decision To Terminate the Hearing Prematurely Was Not a
“Recommendation” to the Governing Board But a Decision

Respondents contend in their petition for rehearing that our previous opinion “fails
to recognize that the hearing officer’s decision was a recommendation to the Governing
Board, not the decision . . . because the final decision to grant or deny privileges can only
be made by a hospital governing board, not physician peer review bodies.” The point of

18
By this we mean ensuring that the record accurately reflects the conduct that
merits termination, ensuring that the party engaging in that conduct is fully on notice of
the impending termination and is given full and complete opportunity to rectify its
(mis)conduct before the hearing is actually terminated.

22

this contention is that we should ignore the action taken by the hearing officer and
address only the final action taken by the governing board.

This contention is not supported by the statutes and it ignores what actually
happened in this case. First, the statutory framework: once a hearing has taken place
under section 809.2, subdivision (a)(1) of section 809.4 provides that the peer review
body and the licentiate have the right to a “written decision of the trier of fact, including
findings of fact and a conclusion articulating the connection between the evidence
produced at the hearing and the decision reached.” (Italics added.) This describes in text,
form and substance a “decision” and clearly not a “recommendation.” In fact, nowhere is
there a mention of a “recommendation.” Section 809.4 speaks only of a “decision” and
an appeal from the decision: section 809.4, subdivision (a)(2) provides that the parties
are entitled to a written explanation of the procedure for appealing the decision, “if any
appellate mechanism exists.”

The fact that the hearing officer in this case made a decision and not a
“recommendation” is shown by the terminating order signed by the hearing officer. As
we have noted, the terminating order is captioned “BEFORE THE JUDICIAL REVIEW
COMMITTEE [¶] WEST HILLS HOSPITAL” and is entitled “Order Terminating
Hearing for Failure of [Appellant] to Comply with Discovery Orders.” (Boldface
omitted.) The terminating order provides that the final proposed action is to be effective
immediately. This is a decision, and not a recommendation.

The Hospital and the Medical Staff are also mistaken in claiming that the final
decision to grant or deny privileges can only be made by a hospital governing board, and
not peer review bodies. If no “appellate mechanism” (§ 809.4, subd. (a)(2)) has been
provided for, the peer review body’s decision is the final decision. If there is an
“appellate mechanism,” and there is no appeal, the peer review body’s decision is also the
final decision. There is no support in the statutes for the proposition that only the
governing board makes a decision regarding privileges.

Section 809.05 governs the role and function of governing boards of acute care
hospitals in the peer review process. Subdivision (a) of section 809.05 provides: “The

23

governing bodies of acute care hospitals have a legitimate function in the peer review
process. In all peer review matters, the governing body shall give great weight to the
actions of peer review bodies and, in no event, shall act in an arbitrary or capricious
manner.” Subdivisions (b) and (c) of section 809.05 go on to address situations when the
peer review body has failed to act, and when the governing board must therefore step in
to remedy the situation.19
In no sense does section 809.05 make the governing board the only decision maker

in the peer review process. On the contrary, section 809.05 requires governing boards to
give “great weight” to the actions of peer review bodies, which, as we have seen, are
required under section 809.4, subdivision (a)(1) to render written decisions following a
hearing convened under section 809.2. Indeed, it is only when the peer review body has
failed to take action that the governing board has a mandate under section 809.05 to
intervene.

Respondents rely on two cases for the proposition that peer review bodies simply
make recommendations and that it is only the “governing board” that makes the actual
decision. Neither case supports this proposition.
In Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1109-

1110, the court addressed the duty to deliver safe and competent medical services and
concluded that “[u]ltimate responsibility for the discharging of this duty falls upon the
Board [of directors of Cedars-Sinai], which is entitled to act in accordance with principles
of sound corporate governance” and that the pertinent regulations made “the Board the

19
“(b) In those instances in which the peer review body’s failure to investigate, or
initiate disciplinary action, is contrary to the weight of the evidence, the governing body
shall have the authority to direct the peer review body to initiate an investigation or a
disciplinary action, but only after consultation with the peer review body. No such action
shall be taken in an unreasonable manner. [¶] (c) In the event the peer review body fails
to take action in response to a direction from the governing body, the governing body
shall have the authority to take action against a licentiate. Such action shall only be taken
after written notice to the peer review body and shall fully comply with the procedures
and rules applicable to peer review proceedings established by Sections 809.1 to 809.6,
inclusive.” (§ 809.05, subds. (b) & (c).)

24

final arbiter in peer review proceedings.” This said, the court went on to observe that
“case authority establishes that the governing body’s precise role within the peer review
process of a given hospital is determined by the bylaws and regulations of the medical
staff” and that “section 809.05 places a boundary on a governing body’s role in the peer
review process, but it does not specify this role. Section 809.05, on its face, ensures the
Board a ‘legitimate function’ in the peer review process without mandating the form this
function must take.” (Id. at p. 1108.) Thus, Weinberg v. Cedars-Sinai Medical Center
does not hold that, in every instance, the governing board is the only body to make an
actual decision in the peer review process.
It appears that the regulations of the medical staff in Weinberg v. Cedars-Sinai

Medical Center, supra, 119 Cal.App.4th 1098, 1103 appear to have conferred on the
board of directors the responsibility to make a “final decision in writing.” Whether this
comports with section 809.4, subdivision (a)(1), which requires the peer review body
convened under section 809.2 to hand down a “written decision . . . , including findings
of fact and a conclusion articulating the connection between the evidence produced at the
hearing and the decision reached,” (italics added) is not a question that we need to decide.
The important point is that in the case before us the pertinent regulations comport with
section 809.4, subdivision (a)(1) in that the peer review body must make a decision that
the licentiate can then appeal.
In Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th

1123, 1135, the second case on which respondents rely, the applicable medical staff
regulations provided for a decision by the peer review body and for an appeal from that
decision to the governing board. The court in Hongsathavij pointed out that the final
decision where an appeal was taken was the decision of the governing board. This of
course does not mean that only the governing board made a decision and that the peer
review body merely recommended a decision.

In sum, neither the governing statutes, nor the decisions interpreting those statutes
nor, indeed, the very action taken in this case support respondents’ assertion that only the

25

governing board makes the decision in a peer review proceeding and that the peer review
body merely makes a recommendation.
3. Vesting the Trier of Fact, Rather Than the Hearing Officer, with the Power To
Prematurely Terminate a Hearing Ensures the Fair Operation of the Peer Review
System

Respondents contend that the (premature) termination of the hearing was
warranted because this decision served the interests of the peer review process.
Specifically, respondents point out that the Cedars-Sinai documents pertain to appellant’s
“medical competence, which was from the outset an issue in the JRC hearing.”
Respondents go on to state that appellant “is mistaken in suggesting that the Medical
Staff and the JRC could do their job of protecting the public through a peer review
process that did not include reviewing the Cedars-Sinai Documents.”

Respondents’ own arguments demonstrate why the decision to prematurely
terminate the hearing should have been made by the trier of fact and not the hearing
officer. Respondents’ argument is that peer review could not be performed adequately
without the Cedars-Sinai documents. Whether this is actually the case is a matter of
medical judgment, requiring the expertise of trained medical professionals. As we have
pointed out (see text, p. 17, ante) the judgment to be exercised in the hearing convened
under section 809.2 to review the final proposed action is not to be confused with the
original decision that led to the final proposed action. It is the balanced judgment of the
trier of fact convened under section 809.2 that ensures fairness; the prosecutor should not
be confused with the jury. Yet, we do not have before us the judgment of an expert body
reviewing the final proposed action that, under the circumstances of this case, the
Cedars-Sinai documents were essential to the peer review process. While we have
plausible arguments propounded by respondents’ lawyers, no group of medical
professionals, i.e., the trier of fact, has reached such a consensus and made such a
decision in reviewing the final proposed action.

In this connection, we note that the Hospital’s governing board explicitly based its
decision on the decision of the hearing officer, finding that the hearing officer’s decision

26

to terminate the hearing was reasonable and warranted, and further adopting the decision
of the hearing officer as its own decision. But the body charged with the responsibility to
review the final proposed action, the trier of fact that “shall include . . . an individual
practicing the same specialty as the licentiate” (§ 809.2(a)), never had an occasion to
consider and decide whether the Cedars-Sinai documents were essential to the peer
review process in this case.

This is no mere technicality. “Peer review, fairly conducted, is essential to
preserving the highest standards of medical practice.” (§ 809, subd. (a)(3).) One cannot
speak of “peer review” when, in fact, there has been no such review, and not even a
decision by the body empowered to make the decision regarding the final proposed
action. The circumstance that the Hospital’s governing board approved the hearing
officer’s decision is no substitute for a full hearing and plenary discussion by the trier of
fact of the issue posed by the Cedars-Sinai documents. Thus, the trial court’s conclusion
that withholding the Cedars-Sinai documents prevented the JRC from performing its
function of evaluating appellant’s fitness to practice medicine is not based on facts found
by the body that is charged with the responsibility of determining this issue in the first
instance.
A comparison of the procedure followed in Webman, supra, 39 Cal.App.4th 592 to

the procedure followed in this case illustrates our point. In Webman, first the medical
executive committee and then the JRC, i.e., two bodies possessing medical expertise and
experience, came to the conclusion that the materials withheld by Dr. Webman were
important, if not crucial, to their evaluation of his competence. Based on this finding, the
courts, in the form of the appellate court in Webman, could confidently conclude that
withholding information that has been found to be essential to the peer review process
warrants, from a legal perspective, upholding the final proposed action of the peer review
body.
Unfortunately, the record in the case before us reflects only the decision of a

single person, a lawyer by training and profession, that appellant has not complied with
“discovery orders” and that, for this reason, “terminating sanctions” were warranted. It

27

does not help the situation that this hearing officer had no authority to issue “discovery
orders” under the Civil Discovery Act and/or to award “terminating sanctions.”
4. The Right To Inspect and Copy Documents

The right to inspect documents extends to “documentary information” that is
relevant to the charges and that the licentiate and the peer review body “has in its
possession or under its control.” (§ 809.2(d).) Taking into account the nature of the peer
review process, and the busy schedules of all of the participants involved in that process,
there is no reason to make this document production burdensome for either the licentiate
or the peer review body. In fact, there is every reason to make it as minimally
burdensome as possible, without compromising the peer review process itself.

It follows therefore that if either the licentiate or the peer review body already
have documents in their possession, there is usually no need to request their production
from the other party. It also follows that if either party is not in possession of the
documents but controls them in the sense of being able to authorize their release by a
third party, it is sufficient if the release is authorized, leaving it to the requesting party to
inspect and copy the documents in the possession of the third party.20 The statute
provides for the right to “inspect and copy,” and does not state that there is a duty to
produce the requested documents.

In sum, the right to inspect and copy documents should be exercised in order to
ensure a fully informed peer review process, and not to make the process difficult and
onerous for the other party.

This is not to say that either the licentiate or the Medical Staff are at liberty to
ignore the plain dictates of section 809.2(d). Both the licentiate and the Medical Staff
“shall have the right” to inspect and copy any documentary information relevant to the

20
It follows that this does not excuse a party from its duty, set forth in section
809.2(d), to furnish the other party with an opportunity to inspect and copy documents. If
the custodian of the documents is someone other than a party to the proceeding and if this
custodian refuses to provide an opportunity to inspect and copy the documents, the
responding party remains under a duty to comply with section 809.2(d).

28

charges that the other party has in its possession or control “as soon as possible” after
receipt of the request for the documentation. (§ 809.2(d).) It follows that appellant is not
free to disregard the Medical Staff’s request for the Cedars-Sinai documents. While the
only procedural consequence of a failure “to provide access to this information at least 30
days before the hearing” is that this is good cause for a continuance (§ 809.2(d)), we have
noted that there is authority for the proposition that failure to provide access to the
requested documentation may amount to a failure to cooperate with the peer review
proceeding and therefore constitute grounds for affirming, by the peer review body
convened under section 809.2, the final proposed action. (Webman, supra, 39
Cal.App.4th 592, 602-603.)
5. Disqualification of the Hearing Officer*

Appellant contends that under Haas v. County of San Bernardino (2002) 27
Cal.4th 1017 (Haas) attorney Harwell is disqualified from serving as a hearing officer in
appellant’s case. Specifically, appellant contends that Harwell’s financial interest in
being reappointed as a hearing officer in future cases disqualifies him.
In Haas, the County of San Bernardino revoked the license of a massage clinic

and the owner of the clinic appealed that decision; the appeal entailed a hearing. The
county appointed a hearing officer; there was evidence that the county intended to use
that same hearing officer in future hearings. (Haas, supra, 27 Cal.4th at pp. 1021-1022.)
The court concluded that the “hearing officer in this case had an impermissible financial
interest in the outcome of the litigation arising from the prospect of future employment
by the County, measured against the applicable constitutional standard of a ‘possible
temptation to the average man as a judge . . . not to hold the balance nice, clear and true.’
[Citations.]” (Id. at p. 1031.) Haas has been applied in a section 809.2 proceeding in
Yaqub v. Salinas Valley Memorial Healthcare System (2004) 122 Cal.App.4th 474.

Harwell was appointed by the Hospital, which is a body distinct from the Medical
Staff. (Hongsathavij v. Queen of Angels etc. Medical Center, supra, 62 Cal.App.4th

*
See footnote, ante, page 1.

29

1123, 1130, fn. 2.) However, Dr. Vener, the president of the Medical Staff, requested the
Hospital to appoint Harwell. It appears that the Medical Staff’s counsel, attorney Lahana,
suggested Harwell to Dr. Vener.

In this case, the parties to the hearing are appellant and the Medical Staff. The
Hospital is not a party. It appears, however, that the Medical Staff influenced, or even
procured, Harwell’s appointment by the Hospital. The question therefore is somewhat
more complicated than the situation was in Haas. The question is whether, in future
cases, the Medical Staff will request the appointment of Harwell and whether the
Hospital will honor those requests and appoint Harwell. If the answer to these questions
is yes, it appears that, under Haas, Harwell is disqualified.

The record is not complete on this issue. The trial court found that Harwell had
been appointed as a hearing officer on six previous occasions by hospitals for which
Lahana was counsel in the administrative proceedings and in one additional case when
Harwell was requested by the physician. The trial court concluded that this did not
“qualify as ‘successive’ appointments that give rise to an inference of bias and a financial
conflict of interest.” These findings do not address the questions whether in future cases,
the Medical Staff will request Harwell, and whether the Hospital will honor those
requests.

In his petition for a rehearing, appellant contends that there does not need to be
any showing that there are plans on the part of the Hospital and the Medical Staff to use
this particular hearing officer again. Appellant states that Haas requires only a “showing
that the Medical Staff and the Hospital retain the freedom to appoint the same hearing
officer in the future.” This interpretation of Haas simply precludes the reappointment of
any hearing officer because in almost all cases the agency selecting the hearing officer
“retain[s] the freedom” to appoint that hearing officer again; in fact, there is no textual
support in the Haas opinion for this interpretation. There have to be some facts that show
that the appointing agency has held out to the hearing officer, “even implicitly, the
possibility of future employment.” (Haas, supra, 27 Cal.4th at p. 1034) It is noteworthy
that the court in Haas developed at length the facts that showed that the county had every

30

intention of reappointing the particular hearing officer in future cases. (Id. at pp. 1022-
1023.)

As matters stand now, the record does not support appellant’s claims that attorney
Lahana “selected the same Hearing Officer repeatedly” and that the hearing officer’s
“future income from presiding over similar hearings depends upon the Medical Staff’s
election . . . to hire him again.” These claims are advanced without a citation to the
record in violation of rule 8.204(a)(1)(C) of the California Rules of Court and may be
disregarded for that reason. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th
443, 451.) The further claim that “Lahana . . . selected [Harwell] to be the hearing officer
in six prior proceedings” cites to the record of Harwell’s voir dire by appellant.
However, in the cited portion of the record Harwell merely stated that he “bumped into”
Lahana seven times in the past; Harwell did not testify that Lahana “selected” him to be a
hearing officer.
Since the necessary factual predicates to Harwell’s disqualification under Haas are

not shown by the current record, we must reject appellant’s contention.
6. Injuctive Relief for Continuation of Appellant’s Gynecology Privileges*

Appellant contends that he is entitled to injunctive relief that reinstates his
privileges until and if it has been determined in a peer review proceeding that his
privileges were properly terminated. Appellant relies on the principle recognized in
Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 809,21 which, as the court
noted in Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1147,
has been codified in section 809.1 et seq.

The record as presently constituted is not adequate to resolve this question.

*
See footnote, ante, page 1.
21
“[T]he full rights of staff membership vest upon appointment, subject to
divestment upon periodic review only after a showing of adequate cause for such
divestment in a proceeding consistent with minimal due process requirements.” (Anton v.
San Antonio Community Hosp., supra, 19 Cal.3d at pp. 824-825.)

31

First, it is uncertain at this point what the scope of appellant’s gynecology
privileges was (or is). Respondents state that this was only a “courtesy” privilege, which
is apparently recognized by the Medical Staff’s bylaws. Appellant claims that this was a
“full” privilege. This controversy has to be resolved.

Second, if this was a “courtesy” privilege, we are informed that this is a type of
privilege that is given to physicians who use the Hospital infrequently. There is,
however, no information about the status of a courtesy privilege, as compared to a “full”
privilege. As an example, under the bylaws, what, if any, limitations are there on a
courtesy privilege? Is a courtesy privilege treated any differently from a “full” privilege?

Third, the fact that respondents do not appear to recognize that appellant holds any
privileges at the Hospital appears to be based on a statement in a letter by the Medical
Staff’s attorney to the hearing officer that appellant “does not hold privileges and is not
able to practice at West Hills Regional Medical Center during the pendency of this
hearing.” The subject of the letter was a continuance of the hearing, and the quoted
statement appears as an aside in the letter, and hardly appears to be a formal ruling. In
any event, the quoted statement drew immediate and emphatic protests from appellant,
who wrote several letters demanding that his gynecology privileges be continued.
Apparently, none of these letters received an answer.

At this point, therefore, it is uncertain what the scope of appellant’s gynecology
privilege was (or is) and what action, if any, respondents took with respect to that
privilege. While it is clear that the termination of a staff privilege requires a hearing if
one is requested, it is true that under certain limited circumstances privileges may be
suspended immediately without a hearing. (§ 809.5, subd. (a).) It may also be true that
“courtesy” privileges do not enjoy the protections of standard privileges. Given that the
current record provides no meaningful information about a “courtesy” privilege, we
express no opinion on this score. These considerations require that the trial court
determines the relevant facts and, if it is indicated by those facts, that the trial court
accords appropriate relief.

32

DISPOSITION

The judgment is reversed. The case is remanded with directions to enter a
judgment directing the Hospital and the Medical Staff: (1) to set aside the decision of
August 19, 2003; (2) to convene a hearing pursuant to the provisions of subdivision (c)
of section 809.1; and (3) to conduct the hearing and further proceedings in accordance
with the provisions of section 809.2 et seq., and in conformance with the views expressed
in this opinion. The trial court is also directed to hear and determine whether appellant is
entitled to injunctive relief with regard to appellant’s gynecology privileges. Appellant is
to recover costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION

FLIER, J.

We concur:

RUBIN, Acting P. J.

BOLAND, J.

33

Miller v. Forsyth Mem’l Hosp.

PEER REVIEW PRIVILEGE

Miller v. Forsyth Mem’l Hosp., No. COA04-1179-2 (N.C.
Ct. App. Nov. 15, 2005)

The
North Carolina Court of Appeals ruled that a malpractice plaintiff was not
entitled to peer review documents because she had failed to preserve in the
trial court record any evidence that would have allowed the appellate court
to determine whether she was prejudiced by lack of access to the documents.
The appellate court noted that the plaintiff should have asked the trial court
to conduct a non-public, "in camera" review of the documents to assess their relevance
to plaintiff’s case.

 

Miguel M. v. Barron (Full Text)

=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
—————————————————————–
No. 76
In the Matter of Miguel M.
(Anonymous), &c.,
Appellant;
Charles Barron, &c.,
Respondent.

Scott M. Wells, for appellant.
Tahirih M. Sadrieh, for respondent.

SMITH, J.:

We hold that the Privacy Rule adopted by the federal
government pursuant to the Health Insurance Portability and
Accountability Act (HIPAA) prohibits the disclosure of a
patient’s medical records to a State agency that requests them
for use in a proceeding to compel the patient to accept mental
health treatment, where the patient has neither authorized the

– 1 –

- 2 –
No. 76
disclosure nor received notice of the agency’s request for the
records.

I
Dr. Charles Barron, as designee of the New York City
Department of Health and Mental Hygiene, applied for an order
under Mental Hygiene Law § 9.60 requiring “assisted outpatient
treatment” (AOT) for Miguel M. The petition alleged that Miguel
was suffering from a mental illness; that he was unlikely to
survive safely in the community without supervision; that he had
a history of failing to comply with treatment; that he was
unlikely to participate in necessary treatment voluntarily; and
that he needed, and would benefit from, AOT to prevent a relapse
or deterioration of his mental status, which would be likely to
result in serious harm to Miguel or to others.
At the hearing on the petition, Barron offered in
evidence records from two hospitals relating to three occasions
on which Miguel was hospitalized. A witness called by Barron
testified that the hospitals had furnished the records in
response to a request — a request made, it is clear from the
record, without notice to Miguel. The witness acknowledged that
Miguel had not authorized the release of the records, and that no
court order for their disclosure had been sought or obtained.
The records were received in evidence over Miguel’s
objection, and Barron’s witness described their contents. After
the hearing, Supreme Court directed that Miguel “receive and

– 2 –

- 3 –
No. 76
accept assisted outpatient treatment” for a period of six months.
The Appellate Division affirmed. We granted leave to appeal, and
now reverse.

II
The six-month duration of Supreme Court’s order expired
before the Appellate Division decided this case, and the
immediate controversy is therefore moot. Neither party
challenges, however, the Appellate Division’s conclusion that the
case presents a novel and substantial issue that is likely to
recur and likely to evade review, and that therefore the
exception to the rule against deciding moot disputes applies here
(see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715
[1980]). We agree, and proceed to the merits.
Mental Hygiene Law § 9.60, known as “Kendra’s Law,” was
enacted in 1999. It is named for Kendra Webdale, who was killed
by a mentally ill man who pushed her off a subway platform. It
says that, on a proper showing, a mentally ill person whose lack
of compliance with treatment has, twice within the last 36
months, caused him or her to be hospitalized may be the subject
of AOT pursuant to a plan stated in a court order (see Mental
Hygiene Law § 9.60 [c], [j] [2]). Public officials identified as
“directors of community services” are given the duty of enforcing
Kendra’s Law (Mental Hygiene Law § 9.47 [b]), and a petition to
require AOT may be filed by a director of community services or
his or her designee (Mental Hygiene Law § 9.60 [e] [1] [vii]).

– 3 –

- 4 –
No. 76
Mental Hygiene Law § 33.13 (c) (12) permits disclosure of medical
records to a director of community services who requests it in
the exercise of his or her duties. Thus, the disclosure of a
patient’s medical records for purposes of an AOT proceeding is
permitted by State law, unless the applicable State law is
preempted. Miguel argues that it is.
Miguel says that preemption is found in HIPAA (Pub L No
104-191, 110 US Stat 1936, codified in various titles of the
United States Code) and the Privacy Rule (45 CFR Titles 160 and
164) promulgated by the United States Department of Health and
Human Services under authority granted by HIPAA § 264 (c) (1)
(see note to 42 USC § 1320d-2). The Privacy Rule prohibits
disclosure of an identifiable patient’s health information
without the patient’s authorization, subject to certain
exceptions (45 CFR § 164.508 [a] [1]). HIPAA § 264 (c) (2) (see
note to 42 USC § 1320d-2) and the Privacy Rule (45 CFR § 160.203
[b]) say that contrary state laws are preempted unless they offer
privacy protections that are “more stringent” than those of the
federal law; New York does not offer any more stringent
protection that is relevant here. The preemption issue thus
comes down to whether the disclosure of Miguel’s medical records
was permitted by one of the exceptions to the Privacy Rule.
Barron relies on two exceptions, those permitting
disclosure for purposes of “public health” and “treatment.” It
is possible to read the language of both exceptions as covering

– 4 –

- 5 –
No. 76
the disclosure now at issue, but in both cases the reading is
strained. Considering the apparent purposes of these two
exceptions, we conclude that neither fits these facts.
The public health exception permits disclosure of
protected information to:
“A public health authority that is authorized
by law to collect or receive such information
for the purpose of preventing or controlling
disease, injury, or disability, including,
but not limited to, the reporting of disease,
injury, vital events such as birth or death,
and the conduct of public health
surveillance, public health investigations,
and public health interventions”
(45 CFR § 164.512 [b] [1] [i]).
Barron reasons that disclosure of a mentally ill
person’s hospital records for purposes of requiring that person
to accept AOT protects the public health, because mentally ill
people might kill or injure other people — like Kendra Webdale –
– who, of course, are members of the public. Thus Barron, a
person designated to enforce Kendra’s Law, would be a “public
health authority,” collecting information for the “purpose of
preventing . . . injury,” and his action to require AOT in
Miguel’s case could be called a public health intervention. We
are not convinced, however, that the authors of the Privacy Rule
meant “public health” in this literal, but counterintuitive,
sense.

The apparent purpose of the public health exception is
to facilitate government activities that protect large numbers of

– 5 –

- 6 –
No. 76
people from epidemics, environmental hazards, and the like, or
that advance public health by accumulating valuable statistical
information. To disclose private information about particular
people, for the purpose of preventing those people from harming
themselves or others, effects a very substantial invasion of
privacy without the sort of generalized public benefit that would
come from, for example, tracing the course of an infectious
disease. The disclosure to Barron of Miguel’s hospital records
was not within the scope of the public health exception.
The treatment exception permits disclosure of protected
health information “for treatment activities of a health care
provider” (45 CFR § 164.506 [c] [2]). “Treatment” is defined as:
“the provision, coordination, or management
of health care and related services by one or
more health care providers, including the
coordination or management of health care by
a health care provider with a third party;
consultation between health care providers
relating to a patient; or the referral of a
patient for health care from one health care
provider to another”
(45 CFR § 164.501).
Again, Barron’s argument is literalistic: AOT —
assisted outpatient treatment — is literally “treatment” — “the
provision . . . of health care . . . by one or more health care
providers.” But the thrust of the treatment exception is to
facilitate the sharing of information among health care providers
working together. We see no indication that the authors of the
regulation meant to facilitate “treatment” administered by a

– 6 –

- 7 –
No. 76
volunteer “provider” over the patient’s objection. Disclosure
for that purpose is a more serious invasion of privacy than, for
example, the transmission of medical records from a patient’s
primary care physician to a specialist — the sort of activity
for which the treatment exception seems primarily designed. The
treatment exception is inapplicable here.
We find support for our conclusion that the two
exceptions Barron relies on are inapposite in the existence of
other exceptions that Barron might have invoked but did not. The
Privacy Rule authorizes disclosure of health information, subject
to certain conditions, “in the course of any judicial or
administrative proceeding,” in response to either “an order of a
court or administrative tribunal” (45 CFR § 164.512 [e] [1] [i])
or “a subpoena, discovery request, or other lawful process” (45
CFR § 164.512 [e] [1] [ii]). Thus, Barron could have pursued
Miguel’s records either by seeking a court order or by serving a
subpoena. To do so in compliance with the Privacy Rule, however,
Barron would have had to give notice to Miguel of his request for
the records. He could not, absent extraordinary circumstances,
have obtained a court order requiring disclosure without giving
such notice. And the Privacy Rule’s exception for subpoenas and
the like is conditioned on “satisfactory assurance” from the
person seeking the information to the entity providing it either
“that reasonable efforts have been made . . . to ensure that the
individual who is the subject of the protected health information
. . . has been given notice of the request” (45 CFR § 164.512 [e]

– 7 –

- 8 –
No. 76
[1] [ii] [A]), or that an order protecting the confidentiality of
the information has been sought (45 CFR § 164.512 [e] [1] [ii]
[B]). In a case, like this one, to which the patient is a party,
a request for a protective order would require notice to the
patient.

We can see no reason, and Barron has suggested none,
why notice should not have been given here. It may well be, in
this case as in many others, that no valid ground for withholding
the records exists; courts ruling on disclosure issues will
surely be conscious, as we are, of the strong public interest in
seeing that mentally ill people who might otherwise be dangerous
receive necessary treatment. But it seems only fair, and no
great burden on the public agencies charged with enforcing
Kendra’s Law, to give patients a chance to object before the
records are delivered.
We emphasize that it is far from our purpose to make
the enforcement of Kendra’s Law difficult. It may often be
possible to avoid all disclosure problems by getting the patient
to authorize the disclosure in advance; surely many mentally ill
people will, while they are under proper care, recognize that
disclosure is very much in their own interest. When there is no
advance authorization, patients who are given notice that their
records are being sought often may not object; when they do
object, their objections may often be overruled. We hold only
that unauthorized disclosure without notice is, under
circumstances like those present here, inconsistent with the
Privacy Rule.

– 8 –

No. 76

– 9 –
III
Barron argues in the alternative that, even if the
disclosure of the records to him was unlawful — as we have held
it was — Supreme Court did not err by admitting the records into
evidence at the AOT hearing. HIPAA, as Barron points out,
contains its own remedies for violations: civil penalties (HIPAA
§ 262 [a], 42 USC § 1320d-5) and, for the knowing and wrongful
disclosure of individually identifiable health information, fines
and imprisonment (HIPAA § 262 [a], 42 USC § 1320d-6). Neither
exclusion of the records from evidence nor suppression of
evidence obtained by use of the records is among the remedies
listed. Barron cites decisions from other states holding that
evidence obtained as a result of a HIPAA violation need not be
suppressed in a criminal case (State v Carter, 23 So 3d 798, 801
[Fla App 2009]; State v Yenzer, 40 Kan App 2d 710, 712-713, 195 P
3d 271, 272-273 [2008]; State v Straehler, 307 Wis 2d 360, 745 NW
2d 431 [Wis App 2007]).
We assume it is correct that, in a criminal case, a
HIPAA or Privacy Rule violation does not always require the
suppression of evidence. Indeed, we have held that suppression
is not required in such a case where evidence was obtained as a
result of a violation of New York’s physician-patient privilege
(People v Greene, 9 NY3d 277 [2007]). But this case is
different. It is one thing to allow the use of evidence
resulting from an improper disclosure of information in medical
records to prove that a patient has committed a crime; it is
another to use the records themselves, or their contents, in a
– 9 –

- 10 –
No. 76
proceeding to subject to unwanted medical treatment a patient who
is not accused of any wrongdoing. Using the records in that way
directly impairs, without adequate justification, the interest
protected by HIPAA and the Privacy Rule: the interest in keeping
one’s own medical condition private. We therefore hold that
medical records obtained in violation of HIPAA or the Privacy
Rule, and the information contained in those records, are not
admissible in a proceeding to compel AOT.
Accordingly, the order of the Appellate Division should
be reversed, with costs, and the case remitted to Supreme Court
for further proceedings in accordance with this opinion.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and matter remitted to Supreme Court,
Queens County, for further proceedings in accordance with the
opinion herein. Opinion by Judge Smith. Chief Judge Lippman and
Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Decided May 10, 2011

– 10 –

Mileikowsky v. West Hills Hosp. Med. Ctr.

MEDICAL STAFF HEARINGS

Mileikowsky v. West Hills Hosp. Med. Ctr., No. B186238 ( Cal. Ct. App. June 8, 2007)

The California Court of Appeal ruled that a hearing officer did not have the authority to terminate a peer review proceeding prior to commencement of the hearing based on the physician’s failure to provide information from a similar proceeding at another hospital, and remanded the case with directions for the hospital to conduct a hearing. In so ruling, the court distinguished the case from another decision involving the same physician, Mileikowsky v. Tenet Healthsystem, in which the court ruled that a hearing officer could terminate a hearing based on a physician’s disruptive conduct.

 

 

Miller v. HCA

INFORMED CONSENT – ASSAULT AND BATTERY

Miller v.
HCA, Inc.,
No. 01-0079 (Tex. Sept. 30, 2003)

The
parents of a child who was born prematurely brought actions for battery and
negligence against a hospital for providing emergency medical care to their
infant daughter. After the physicians informed the parents that the infant
had little chance of surviving the premature delivery and an even smaller chance
of having a healthy life, the parents instructed the physicians to let nature
take its course and not provide the infant with emergency medical care. The
physicians decided to provide emergency medical care after delivering the child,
but a brain hemorrhage a few days later caused the child to suffer severe mental
and physical impairments. The trial court awarded the parents over $50,000,000
in damages, finding that the hospital was grossly negligent for providing care
without the consent of the parents. The judgment was reversed on appeal, and
the parents received nothing. The Supreme Court of Texas affirmed the appellate
court’s decision, holding that because the treatment was given under emergent
circumstances, the case presented an exception to the general rule that physicians
are liable for providing treatment to a minor child without first obtaining
parental consent.

Miguel v. Guess

Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       20699-8-III
Title of Case:       Nan Miguel, et al
                     v.
                     Charles Guess, et al
File Date:           07/18/2002


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Whitman County
Docket No:      96-2-00190-1
Judgment or order under review
Date filed:     05/17/2001
Judge signing:  Hon. Richard W. Miller


                                     JUDGES
                                     ------
Authored by Frank L. Kurtz
Concurring: Kenneth H Kato
            John A. Schultheis


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Richard D. Reed
            Attorney At Law
            1218 3rd Ave Ste 1500
            Seattle, WA  98101

            Judith A. Lonnquist
            Law Offices of Judith A. Lonnquist
            1218 3rd Ave #1500
            Seattle, WA  98101

Counsel for Respondent(s)
            Michael J. McMahon
            Etter McMahon Lamberson & Clary
            Ste 1600
            421 W Riverside Ave
            Spokane, WA  99201-0401

            Susan W. Troppmann
            Etter McMahon Lamberson & Clary
            421 W Riverside Ave #1600
            Spokane, WA  99201-0402

            James B. King
            Keefe King & Bowman
            1102 Wa Mutual Financ Ctr
            W.601 Main
            Spokane, WA  99201

            Christopher J. Kerley
            Keefe King & Bowman
            Wa Mutual Financial Ctr
            W 601 Main Ste 1102
            Spokane, WA  99201

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NAN MIGUEL,                                      ) No. 20699-8-III
                                                 )
               Plaintiff,                        )
                                                 ) Division Three
and MARY JO DAVIS,                               ) Panel Seven
                                                 )
               Appellant,                        )
                                                 )
          v.                                     ) PUBLISHED OPINION
                                                 )
CHARLES GUESS, and PULLMAN                       )
HOSPITAL DISTRICT NO. 1-A,                       )
d/b/a PULLMAN MEMORIAL                           )
HOSPITAL,                                        )
                                                 )
               Respondents.

     KURTZ, J. - Mary Jo Davis sued Pullman Hospital District No. 1-A (the
'Hospital') and Charles Guess, M.D., after she was dismissed from her
position in the Hospital's radiology department.  Ms. Davis believes that
she was fired because she is a lesbian.  In her lawsuit, she contended that
public employment discrimination based solely on sexual orientation is
irrational and actionable under 42 U.S.C. sec. 1983 as a violation of the
Equal Protection Clause of the United States Constitution.  Her claims were
dismissed on summary judgment.  We reverse the dismissal and remand for
trial Ms. Davis's sec. 1983 claims against the Hospital and Dr. Guess.  In
so doing, we hold that Ms. Davis has raised material issues of fact with
respect to whether (1) the Hospital and Dr. Guess are state actors for the
purposes of sec. 1983, and (2) they denied her equal protection under the
laws.  But, we affirm the dismissal of her claim based upon public policy
because her discharge did not violate a clear mandate of Washington public
policy.
FACTS

     In July 1993, Mary Jo Davis was hired by Pullman Memorial Hospital to
work as a sonographer in its radiology department.  The director of that
department was Dr. Charles Guess, a radiologist with staff privileges.  Ms.
Davis's immediate supervisor was Nan Miguel, who managed the radiology
department.
     Ms. Davis and Dr. Guess did not enjoy a good working relationship.
Ms. Davis is a lesbian.  Before she was hired, Dr. Guess told Ms. Miguel
that the Hospital should not hire Ms. Davis because her homosexuality might
cause trouble.  On a number of occasions, Dr. Guess referred to Ms. Davis
as a fucking faggot, a fucking dyke, and a queer.  Dr. Guess was also heard
to say: ''I don't think that fucking faggot should be doing vaginal exams
and I'm not working with her.''  Clerk's Papers (CP) at 1367.  He
reaffirmed this sentiment in a statement to Scott Adams, the Hospital
Administrator, overheard by Dr. James Harrington, an emergency room
physician.  According to Dr. Harrington, Dr. Guess stated ''I don't think a
queer should be doing vaginal exams.''  CP at 1367.  And, Mr. Adams replied
with words to the effect of: ''I hear what you're saying.  We need to do
something about it and we will.''  CP at 1367.
     On one occasion, Dr. Guess treated the department staff to ice cream.
He told everyone that they were celebrating because Ms. Davis was not at
the hospital that day.  He remarked that it was gay pride week, and Ms.
Davis must be off marching somewhere.  Although Ms. Davis's co-workers
laughed in response to Dr. Guess's statement, one observer to this event
reported that Dr. Guess was not joking.
     Dr. Guess's reservations about Ms. Davis were not limited to her
lifestyle.  He told other employees that Ms. Davis was not properly trained
and lacked the necessary experience to be performing ultrasounds.
Specifically, he stated that when Ms. Miguel stopped assisting Ms. Davis
with the scans, 'she was lost in what she was doing.'
CP at 145.  In his deposition, Dr. Guess identified other physicians who
had expressed concerns about Ms. Davis's professional skills.  As the
director of the radiology department, Dr. Guess was responsible for the
overall care patients received in his department.
     In early November 1994, Ms. Miguel sent a memorandum to Mr. Adams
objecting to Dr. Guess's treatment of Ms. Davis.  According to Mr. Adams,
Ms. Miguel informed him that Dr. Guess ''was not cooperating with {Ms.
Davis} in her being able to perform her duties as an ultrasonographer.
That he was critical of her work, that he was uncooperative in trying to
provide her necessary information to perform her duties and that he was
critical of her lifestyle.''  CP at 2341.  Mr. Adams further stated that
other employees of the radiology department confirmed these allegations in
a department meeting.  Later that month, Ms. Davis sent a letter to Mr.
Adams, Ms. Miguel, and the Hospital complaining about the way in which Dr.
Guess treated her.
     At the end of November 1994, Ms. Miguel was placed on paid
administrative leave.  Mr. Adams explained in a memorandum to Ms. Miguel
that she was being placed on leave while the Hospital determined how to
restructure the radiology department to create a cohesive group.  She was
informed that depending upon what the Hospital decided, she might be asked
to return in a staff role, a group leader role, or her position might be
terminated.  Ultimately, the Hospital eliminated Ms. Miguel's position and
she lost her job.
     As a result of Ms. Davis's and Ms. Miguel's complaints, Mr. Adams and
Dr. Margaret Miller, the Hospital's Chief of Medical Staff, met with Dr.
Guess.  They informed him that his disparaging comments about Ms. Davis,
specifically his references to her lifestyle, would not be tolerated by the
Hospital.  Mr. Adams advised Dr. Guess that no formal disciplinary action
through the established medical staff process would be necessary unless the
behavior continued.  According to Mr. Adams, Dr. Guess agreed to
discontinue the behavior.
     After his meeting with Mr. Adams and Dr. Miller, Dr. Guess decided
that one way to comply with the Hospital's demand that he change his
treatment of Ms. Davis would be to minimize his contact with her.  Dr.
Guess announced that he would begin to perform his own ultrasounds.  The
immediate impact of this decision was to reduce the amount of work for the
radiology technologists.  The Hospital responded by reducing Ms. Davis's
hours from full time to three-quarters time.
     Ms. Davis then retained counsel to file a grievance regarding her
reduction in work hours.  In preparing for her grievance hearing, Ms. Davis
made a photocopy of documents from two patient files in an attempt to prove
that her reduction in work hours was the result of Dr. Guess's animus
regarding her sexual orientation.
     Mr. Adams informed Ms. Davis that her actions in copying information
from patient files were in violation of the Hospital's patient
confidentiality policies, and Ms. Davis was given a three-day suspension.
Mr. Adams sent Ms. Davis a second letter, in which he informed her that
after further consideration, he decided that her acts constituted serious
offenses under the Hospital's policies, and she was terminated.
     Ms. Davis appealed to the Board of Commissioners (the 'Board').  The
Board found that the termination was justified.  The Board commented that
Ms. Davis breached the confidentiality of patient files and had become a
disruptive employee.
     Procedural History.  Ms. Davis filed a complaint against the Hospital
and Dr. Guess in November 1996.  In due course, Dr. Guess and the Hospital
each moved for summary judgment.  The court ultimately dismissed all of Ms.
Davis's claims against Dr. Guess.  The court also dismissed all claims
against the Hospital, except for the claims for wrongful discharge in
breach of promises made in the employee handbook and violation of due
process.
     Ms. Davis sought discretionary review from the Washington Supreme
Court of the court's decision to dismiss her equal protection and public
policy claims against the Hospital and Dr. Guess.  The Hospital also sought
review of the court's refusal to dismiss the employee handbook and due
process claims.
     A Supreme Court commissioner denied review, stating that it did not
appear that the case would be significantly streamlined by an early
consideration of the equal protection and public policy issues.
Additionally, the commissioner stated that Ms. Davis did not demonstrate
that the superior court had committed obvious or probable error in
dismissing her claims.
     In response, Ms. Davis moved the superior court to dismiss with
prejudice her employee handbook and due process claims in order to perfect
her appeal as a matter of right from a final judgment.  The court granted
the motion and this appeal followed.  In it, Ms. Davis contends the
superior court erred when it dismissed her equal protection claims against
both Dr. Guess and the Hospital, and her claim against the Hospital that
its actions violated Washington public policy.
ANALYSIS
     Standard of Review.  In reviewing a summary judgment, we engage in the
same inquiry as the trial court.  Snohomish County v. Anderson, 124 Wn.2d
834, 843, 881 P.2d 240 (1994).  The facts and all reasonable inferences
from the facts are construed in favor of the nonmoving party, Ms. Davis.
Id.  We do not weigh the evidence or determine the truth of the matter; the
only question is whether there is a genuine issue for trial.  A motion for
summary judgment should be granted only if the court concludes that
reasonable persons would reach but one conclusion based on the facts and
reasonable inferences therefrom.  Id.
     42 U.S.C. sec. 1983.  Ms. Davis claims the Hospital and Dr. Guess
violated
42 U.S.C. sec. 1983.  To establish a cause of action under 42 U.S.C. sec.
1983, Ms. Davis must show: (1) the defendant violated a federal
constitutional or statutory right, and
(2) the defendant acted under color of state law.  Here, Ms. Davis argues
that the Hospital and Dr. Guess violated the Equal Protection Clause of the
United States Constitution.  In considering this claim, we first address
whether Ms. Davis has raised a material issue of fact as to whether either
of the defendants acted under color of state law.  While the ultimate
determination of whether the Hospital and Dr. Guess are state actors is a
question of law, if a factual dispute underlies that decision, then it
cannot be made on summary judgment.  See Goldstein v. Chestnut Ridge
Volunteer Fire Co., 218 F.3d 337, 344 n.7 (4th Cir. 2000), cert. denied,
531 U.S. 1126 (2001).  If one or both of the defendants were state actors,
then we must determine whether Ms. Davis has raised a material issue of
fact as to whether the conduct of either or both of the defendants denied
her right to equal protection under the laws.
     Acting under Color of State Law.  Ms. Davis contends the Hospital and
Dr. Guess were state actors for purposes of sec. 1983.  A person acts under
color of state law when the person exercises power 'possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the
authority of state law.'  United States v. Classic, 313 U.S. 299, 326, 61
S. Ct. 1031, 85 L. Ed. 1368 (1941).
     The Hospital.  There are three recognized circumstances in which a
governmental entity, like the Hospital, may be sued under sec. 1983.
Fuller v. City of Oakland, 47 F.3d 1522, 1533-34 (9th Cir. 1995).  First,
Ms. Davis could show that the challenged conduct was the result of the
Hospital's official policy or the result of a custom so pervasive that it
constituted policy.  Monell v. Dep't of Soc. & Health Servs., 436 U.S. 658,
694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).  Second, she could establish
that the challenged conduct was the result of 'a deliberate choice . . .
made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject
matter in question.'  Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84,
106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).  Finally, Ms. Davis could
demonstrate that, as to the challenged conduct, the Hospital's policymakers
either delegated policymaking authority to a subordinate or ratified a
subordinate's decision.  Such a delegation or ratification would indicate
that the Hospital approved the 'decision and the basis for it.'  City of
St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 99 L. Ed. 2d
107 (1988).
     Ms. Davis does not produce evidence of any official policy of the
Hospital encouraging or condoning employment discrimination on the basis of
sexual orientation.  Rather, she contends the discriminatory treatment of
her was so pervasive and widespread that it amounted to an unlawful custom
of discrimination.  Additionally, she claims the Hospital ratified Dr.
Guess's harassment of her by failing to respond promptly and appropriately
once it became aware of his conduct.  She asserts the Hospital, by reducing
her hours and then terminating her, adopted Dr. Guess's anti-lesbian bias
as its own.
     Even without an official policy, the Hospital may have acted under
color of state law if a policy of unlawful discrimination can be attributed
to it through the actions of its policymaking officials.  In Praprotnik,
the court stated 'an unconstitutional governmental policy could be inferred
from a single decision taken by the highest officials responsible for
setting policy in that area of the government's business.'  Id. at 123.  In
Fuller, the police chief, the official policy maker, ratified a sexually-
biased investigation of his lieutenant.  Fuller, 47 F.3d at 1534.
Consequently, the Ninth Circuit reversed summary judgment, stating that 'a
jury could find that {Police Chief} Hart acted with reckless disregard of
Fuller's constitutional right not to have her investigation handled in a
sexually-biased fashion.'  Id. at 1535.
     Based upon the wording of RCW 70.44.060(10), the Hospital argues that
only its Board holds policymaking authority.1  And, based upon the language
of
RCW 70.44.080(1), the Hospital further argues that the role of its
administrator is limited

to administrative functions.2  The Hospital notes that while some authority
with respect to employment and disciplinary decisions was delegated to Mr.
Adams, its administrator, those decisions were ultimately reviewable by the
Board.  Thus, the Hospital seeks to disassociate itself for sec. 1983
purposes from the actions of both Dr. Guess and Mr. Adams.
     The following facts are relevant to our consideration of the
Hospital's argument.  After Ms. Davis and Ms. Miguel separately complained
about Dr. Guess's treatment of Ms. Davis, Mr. Adams and the Hospital's
chief of staff met with Dr. Guess.  They instructed him to discontinue his
objectionable behavior.  Additionally, they implied that if the conduct
continued, the Hospital could refer him for formal disciplinary action.  In
response, Dr. Guess restructured his work procedures and schedule so as to
minimize his contact with Ms. Davis.  As a consequence, part of the work
normally performed by Ms.

Davis was eliminated.  Accordingly, the Hospital reduced Ms. Davis's
position from full time to three-fourths time.
     After Ms. Davis's hours were reduced, she filed a grievance that was
initially handled by Mr. Adams.  As part of the grievance process, Ms.
Davis sought to gather information that might demonstrate that Dr. Guess's
refusal to work with her was motivated by an anti-lesbian bias.  To that
end, she photocopied the outside page of a patient file jacket and a page
of an emergency department notation.  She shared this information with her
attorney.  Also, she solicited patient information from physicians and
explained her conduct by characterizing the inquiries as a quality
assurance survey.
     When Mr. Adams learned about Ms. Davis's efforts, he disciplined her
for breach of patient confidentiality.  Suspending her for three days
without pay, he informed her: 'As part of the conditions for your return to
the hospital, we are now requiring that you schedule your work time in the
department to be when Dr. Charles Guess is not working in the department.'
CP at 2236.  The day after suspending Ms. Davis, Mr. Adams changed his mind
about the severity of the offense and he terminated her.
     In response to Mr. Adams's termination of her, Ms. Davis asked the
Board to review his decision.  In upholding the decision of its
administrator, the Board explained:
You did breach the confidentiality of patient records.  You also, over
time, became a disruptive employee:  Toward the end of your employment
several very troublesome things occurred.  Several written complaints about
Dr. Guess were submitted to the Administration by individuals in response
to your solicitations.  Other employees {came} to the Administration to
express their discomfort in working with you because of your repeated
solicitations of them to become embroiled in the dispute with Dr. Guess.
It appears as though you had a personal campaign to discredit Dr. Guess and
cause departmental - and Hospital-wide disruptions. . . .  A reasonable
interpretation of this 'QA Study' was that it was a part of your campaign
to discredit Dr. Guess.  At a minimum, it was highly disruptive in the
context of your relationship with him and any reasonable person would have
known it would be and would not have conducted such a study at such a time
if they were acting in good faith.

In light of the evident disruptions within the Hospital caused by you and
considering your behavior over a period of several months which appeared to
escalate the conflict, we find that the Administration's action in
terminating your employment was reasonable and justified.

CP at 2238-39 (emphasis added).  Now, in this appeal, the Hospital
emphasizes patient confidentiality as the justification for Ms. Davis's
termination.  But, at the time, much of the emphasis was upon her
relationship with Dr. Guess and her inability to work with him.
     When viewed in the light most favorable to Ms. Davis, the evidence and
the inferences from the evidence would support the following findings.  Dr.
Guess refused to work with Ms. Davis because she was a lesbian.  Although
Dr. Guess expressed concerns about Ms. Davis's qualifications and work
performance, the real motivation for his conduct and the manner in which he
treated Ms. Davis was his animosity toward lesbians.  Mr. Adams, the
Hospital's Administrator, was aware both of Dr. Guess's bias against Ms.
Davis and his treatment of her.  Although he instructed Dr. Guess to
discontinue his objectionable conduct, he also accommodated the conduct by
reducing Ms. Davis's hours so that Dr. Guess need not work with her.  This
accommodation of Dr. Guess's anti-lesbian bias is also shown by the
treatment of Ms. Miguel, whose position was eliminated as part of a
Hospital reorganization, after she complained about Dr. Guess's conduct.
Finally, when Ms. Davis complained about Dr. Guess's treatment of her and
the reduction of her work hours, Mr. Adams and, ultimately, the Hospital's
Board terminated her because she could not get along with him and because
of her 'campaign to discredit Dr. Guess.'  CP at 2238.  These findings
would support a conclusion that the Hospital adopted and ratified the
conduct of Mr. Adams and Dr. Guess as its final policy with respect to the
treatment of Ms. Davis that was based upon her sexual orientation.  See
Praprotnik, 485 U.S. at 126-27; Pembaur, 475 U.S. at 483-84.
     Therefore, material issues of fact exist that are pertinent to the
ultimate determination of whether the Hospital's conduct here amounted to
state action.
     Dr. Guess.  To establish the liability of an individual defendant
under sec. 1983, Ms. Davis must show both that Dr. Guess deprived her of a
protected right and that he caused the deprivation while acting under color
of state law.  42 U.S.C.A. sec. 1983 (1994); Harris v. City of Roseburg,
664 F.2d 1121, 1125 (9th Cir. 1981).  Normally, the second element is
demonstrated by showing that a public employee abused the position given to
him or her by the state while acting in an official capacity.  However, the
color of law requirement is not satisfied if the offensive act is a private
tort committed by a state employee.  Rather, the act must entail ''{m}isuse
of power, possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.''  Barkauskie v.
Indian River Sch. Dist., 951 F. Supp. 519, 541 (D. Del. 1996) (quoting Mark
v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)).  Before the
conduct of a private actor can be considered state action, the court must
find a 'sufficiently close nexus between the state and the private actor
'so that the action of the latter may be fairly treated as that of the
State itself.''  Jensen v. Lane County, 222 F.3d 570, 575 (9th Cir. 2000)
(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S. Ct.
449, 42 L. Ed. 2d 477 (1974)).
     Like the physician in Nieto v. Kapoor, 268 F.3d 1208 (10th Cir. 2001),
Dr. Guess argues he is not liable under sec. 1983 because he is not a
Hospital employee.  In Nieto, female employees of the radiation oncology
department sued the hospital and Dr. Quadrat Kapoor, the department's
medical director, for sexual harassment.  Like Dr. Guess, Dr. Kapoor was
not an employee of the hospital, but worked under a contractual agreement
with the hospital by the terms of which he oversaw the medical care
provided in the hospital's radiation oncology department.  Like Dr. Guess,
Dr. Kapoor did not have any authority to hire, fire, or discipline hospital
employees, but he influenced staffing decisions.  Finally, like Dr. Guess,
Dr. Kapoor argued that he was not liable under sec. 1983 because he was not
a state actor.  In holding that Dr. Kapoor was a state actor, the court
agreed with the trial court's reasoning that ''Dr. Kapoor was able to
harass Plaintiffs because of his state authority as the Medical Director of
a public radiation oncology department and because he supervised their
work.''  Id. at 1217.
     Was Dr. Guess able to harass Ms. Davis because of his state authority
as the medical director of the department in which she worked?  Again, we
must view the evidence in the light most favorable to Ms. Davis.  As the
physician responsible for overseeing the quality of care within the
radiology department, Dr. Guess exercised significant control over Ms.
Davis.  By accepting her and working with her, he could ensure her success
within the department.  Or, by rejecting both her and her work, he could
ensure her failure.  A factfinder could find that Dr. Guess chose the
latter course.
     Moreover, the evidence supports Ms. Davis's contention that Dr.
Guess's authority within the radiology department was considerable.  We
have previously noted that Ms. Miguel's position was eliminated after she
complained about Dr. Guess's treatment of Ms. Davis.  Ms. Miguel's
predecessor as the radiology department manager was Laura Johnson.
According to Ms. Johnson, she lost her position and was demoted to a part-
time employee after a disagreement with Dr. Guess.  Ms. Johnson attributes
both her demotion and her replacement by Ms. Miguel to Dr. Guess's
influence.  If this evidence is accepted by the jury, it could infer from
this evidence that Dr. Guess exercised greater real authority within the
radiology department than its actual manager.  The jury could find that Dr.
Guess was able to adversely impact the conditions of Ms. Davis's employment
because of his position in the Hospital and the authority granted to him by
the state.
     As with the Hospital, material issues of fact exist that are pertinent
to the ultimate question of whether Dr. Guess's conduct here amounted to
state action.
     Equal Protection.  In granting summary judgment, the trial court
questioned whether there is a right in the public workplace to be free from
harassment or discrimination based upon sexual orientation.  The Equal
Protection Clause of the Fourteenth Amendment requires similar treatment
under the law for similarly situated people.  U.S. Const. amend. XIV, sec.
1; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985); State v. Ward, 123 Wn.2d 488, 515, 869 P.2d
1062 (1994).  Ms. Davis contends that employment discrimination based upon
sexual orientation violates her right to equal protection.  She further
claims that even under the most relaxed level of judicial scrutiny--
rational basis--her claim is actionable under sec. 1983 because the
Hospital and Dr. Guess offer no legitimate state purpose that justifies
discriminating against her because of her sexual orientation.3
     'Under the rational relationship test, a classification will be upheld
unless it rests on grounds wholly irrelevant to the achievement of
legitimate state objectives.'  Gossett v. Farmers Ins. Co., 133 Wn.2d 954,
979, 948 P.2d 1264 (1997).  A discriminatory classification that is based
on prejudice or bias is not rational as a matter of law.  Romer v. Evans,
517 U.S. 620, 633-34, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996); Cleburne,
473 U.S. at 448; Palmore v. Sidoti, 466 U.S. 429, 432-33, 104 S. Ct. 1879,
80 L. Ed. 2d 421 (1984).
     In Romer, the Supreme Court held that an amendment to the Colorado
State Constitution, which prohibited any legislation or judicial action
designed to protect the status of a person based upon sexual orientation,
violated the Equal Protection Clause of the United States Constitution.  In
so holding, the court observed that under the rational basis standard, the
court would 'insist on knowing the relation between the classification
adopted and the object to be attained.'  Romer, 517 U.S. at 632.  But, this
link was lacking in Romer.  Therefore, the court drew the 'inevitable
inference' that the law is 'born of animosity toward the class of persons
affected.'  Id. at 634.  The court characterized the Colorado amendment as
'a status-based enactment divorced from any factual context from which we
could discern a relationship to legitimate state interests.'  Id. at 635.
Romer holds state actions that treat homosexuals less favorably than other
groups must advance some legitimate governmental interest.
     Other courts also have held that discrimination on the basis of sexual
orientation can state a claim under the Equal Protection Clause.  For
instance, in Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), the court
held that the trial court had improperly dismissed on summary judgment an
equal protection claim based on sexual orientation where a gay student
presented evidence that he had been harassed over a long period of time by
other students and, although he had repeatedly complained to school
officials, the school took no action to protect him.  Similarly, in Quinn
v. Nassau County Police Department, 53 F. Supp. 2d 347 (E.D.N.Y. 1999), the
court found the Nassau County Police Department violated a former police
officer's right to equal protection where it allowed years of harassment
because of his homosexuality.  The district court held that the right of
public employees to be free from harassment and discrimination based on
sexual orientation is found in the Equal Protection Clause and is
actionable under sec. 1983.
     Based upon the above authority, we hold that a state actor violates a
homosexual employee's right of equal protection when it treats that person
differently than it treats heterosexual employees, based solely upon the
employee's sexual orientation.  The alleged violation of the right of equal
protection is actionable under sec. 1983.
     Here, the Hospital and Dr. Guess do not offer any justification for
employment discrimination based upon sexual orientation.  They argue that
their actions were based on considerations other than Ms. Davis's sexual
orientation.  The Hospital claims that it terminated Ms. Davis because she
violated its rules concerning patient confidentiality and because she was a
disruptive employee.  Dr. Guess asserts that he refused to work with Ms.
Davis for professional and personal reasons.  Significantly, they have not
produced any evidence nor do they even argue that treating Ms. Davis
differently based upon her sexual orientation would serve a legitimate
purpose.
     Rather, the Hospital and Dr. Guess assert that Ms. Davis's claims do
not survive their motions for summary judgment because she was fired for
copying and sharing patient records and for being a disruptive employee,
not because she is a lesbian.  Cases involving Title VII of the 1964 Civil
Rights Act have established a procedural framework for deciding sexual
harassment cases in the employment context.  Bator v. Hawaii, 39 F.3d 1021,
1028 n.7 (9th Cir. 1994).  That framework is useful here, as well.  First,
the plaintiff must establish a prima facie case of discrimination.  See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).  Once a plaintiff has established a prima facie case,
the burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment action
taken against the plaintiff.  Id.  Finally, if the defendant puts forth a
legitimate, nondiscriminatory reason, then the plaintiff must prove by a
preponderance of the evidence that the defendant's proffered reasons were
not its true reasons, but were merely pretext for illegal discrimination.
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 182, 23 P.3d 440 (2001) (citing
McDonnell Douglas, 411 U.S. at 804).
     The Hospital has provided a legitimate, nondiscriminatory reason for
the termination of Ms. Davis's employment.  The employee handbook clearly
states that improper dissemination of patient information is an offense
punishable by termination.  In turn, Ms. Davis has provided evidence of
pretext.  This evidence includes Dr. Harrington's declaration that Mr.
Adams responded, ''{w}e need to do something about it and we will,''4 to
Dr. Guess's statement ''I don't think a queer should be doing vaginal
exams.''5  It also includes what the jury might infer from the fact that
Mr. Adams's initial discipline of Ms. Davis for breach of patient
confidentiality was a three-day suspension, with the apparently unrelated
admonition that 'we are now requiring that you schedule your work time in
the department to be when Dr. Charles Guess is not working in the
department.'6  A similar inference flows from the fact the Board, in
affirming the decision to fire her, cited Ms. Davis's inability to work
with Dr. Guess and its perception of her as a disruptive employee.
     After viewing the evidence in the light most favorable to Ms. Davis,
we hold she has raised a material issue regarding whether the Hospital's
asserted reasons for firing her were pretextual.  The dismissal of Ms.
Davis's sec. 1983 claim against the Hospital is reversed and remanded for
trial.
     Finally, we consider Dr. Guess's argument, offered for the first time
in his brief on appeal, that he enjoyed a qualified immunity from this type
of suit because in 1994, it was not well established that discrimination
based upon sexual orientation violated a person's right to equal
protection.  He cites Bator for the proposition that '{q}ualified immunity
protects state officials from section 1983 liability if their conduct does
not violate 'clearly established statutory or constitutional rights of
which a reasonable person would have known.''  Bator, 39 F.3d at 1027
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.
Ed. 2d 396 (1982)).  However, Bator held that no qualified immunity existed
to protect the defendants from a suit alleging sexual harassment.  Bator
pointed out that '{b}y the mid-1970s, the Supreme Court had announced that
the Equal Protection Clause proscribes purposeful discrimination by state
actors . . . based solely on an individual's membership in a protected
class.'  Bator, 39 F.3d at 1027 (citing Village of Arlington Heights v.
Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-68, 97 S. Ct. 555, 50 L.
Ed. 2d 450 (1977)).
     In Nabozny, the court applied similar reasoning to dispose of a
defendant's claim of qualified immunity from suit based upon sexual
orientation harassment.  The court stated as follows:
     Our discussion of equal protection analysis thus far has revealed a
well established principle: the Constitution prohibits intentional
invidious discrimination between otherwise similarly situated persons based
on one's membership in a definable minority, absent at least a rational
basis for the discrimination.  There can be little doubt that homosexuals
are an identifiable minority subjected to discrimination in our society.
Given the legislation across the country both positing and prohibiting
homosexual rights, that proposition was as self-evident in 1988 as it is
today.

Nabozny, 92 F.3d at 457 (footnote omitted).
     We agree with the court in Nabozny.  The law is well established that
intentional and invidious discrimination against an individual because he
or she is a member of an identifiable class, violates that person's right
to equal protection.  That proposition was as evident in 1994 as it is
today.  Dr. Guess has no qualified immunity from Ms. Davis's
sec. 1983 action.  The dismissal of Ms. Davis's sec. 1983 claim against Dr.
Guess is reversed and remanded for trial.
     Washington Public Policy.  Ms. Davis argues that the Hospital violated
Washington public policy by discharging her because of her sexual
orientation.  In rejecting this argument and granting summary judgment, the
trial court held that even if Ms. Davis was discharged because of her
sexual orientation, such a discharge does not violate a clear mandate of
public policy in Washington.  We agree.
     The determination of what constitutes a clear mandate of public policy
is a question of law.  Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002
(1989).  The employee bears the burden of establishing the existence of a
clear mandate of public policy and that his or her discharge contravenes or
jeopardizes that public policy.  Gardner v. Loomis Armored, Inc., 128 Wn.2d
931, 941, 913 P.2d 377 (1996) (citing Dicomes, 113 Wn.2d at 617).  Courts
are required to find, not create public policy, 'and the existence of such
public policy must be 'clear.''  Selix v. Boeing Co., 82 Wn. App. 736, 741,
919 P.2d 620 (1996) (quoting Roe v. Quality Transp. Servs., 67 Wn. App.
604, 610, 838 P.2d 128 (1992)).
     In support of her argument that discharging a public employee based on
his or her sexual orientation contravenes a clear mandate of Washington
public policy, Ms. Davis relies on the general principles of equal
protection and the right to privacy.  Additionally, she points to RCW
9A.36.078, which deals with crimes motivated by bigotry and bias, and state
regulations governing public employee benefits, which now include same sex
domestic partners as eligible dependents.
     While this body of law shows some trend in our state toward a public
policy that would prohibit the government from discriminating against its
citizens because of their sexual orientation, the trend is insufficient to
establish a clear mandate of public policy.  We are mindful of the
admonition that we should ''proceed cautiously if called upon to declare
public policy absent some prior legislative or judicial expression on the
subject.'' Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d
1081 (1984) (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380,
652 P.2d 625 (1982)).  Our Legislature has enacted many laws regulating
public employment and it has not elected to prohibit discrimination because
of sexual orientation.
     In this case, Ms. Davis has not met her burden of establishing that
her discharge violates a clear mandate of Washington public policy.  For
that reason, we conclude that the court properly dismissed her claim based
upon public policy.
     Attorney Fees.  42 U.S.C. sec. 1988 permits the court, in its
discretion, to award attorney fees to the party who prevails in a suit to
enforce sec. 1983.  Dennis v. Chang, 611 F.2d 1302, 1305 (9th Cir. 1980).
The issue of whether Ms. Davis is entitled to an award of attorney fees
shall be determined by the trial court upon remand.

                    Kurtz, J.

WE CONCUR:

Kato, A.C.J.             Schultheis, J.

1 RCW 70.44.060(10) states the Board has authority:
'To make contracts, employ superintendents, attorneys, and other technical
or professional assistants and all other employees; to make contracts with
private or public institutions for employee retirement programs; to print
and publish information or literature; and to do all other things necessary
to carry out the provisions of this chapter.'
2 RCW 70.44.080(1) states:
     'The superintendent shall be the chief administrative officer of the
public district hospital and shall have control of administrative functions
of the district.  The superintendent shall be responsible to the commission
for the efficient administration of all affairs of the district.  In case
of the absence or temporary disability of the superintendent a competent
person shall be appointed by the commission.  The superintendent shall be
entitled to attend all meetings of the commission and its committees and to
take part in the discussion of any matters pertaining to the district, but
shall have no vote.'
     3 The courts apply one of three standards--strict scrutiny,
intermediate scrutiny, and rational basis--to equal protection claims.
State v. Thorne, 129 Wn.2d 736, 771-72, 921 P.2d 514 (1996).  In a footnote
to her brief, Ms. Davis observes the level of scrutiny to be applied to
classifications based on sexual orientation is an open question in
Washington.  She further states that because there is a long history of
employment discrimination against gay and lesbian people, classifications
that implicate them should be subject to a heightened level of scrutiny.
Despite the observations about heightened scrutiny contained in her
footnote, Ms. Davis's position is that the discrimination about which she
complains--discrimination based upon sexual orientation in public
employment--does not bear even a rational relationship to a legitimate
governmental interest.  Accordingly, we need not decide whether
classifications based upon sexual orientation merit heightened scrutiny.
4 CP at 1367.
5 CP at 1367.
6 CP at 2236.

Mileikowsky v. West Hills Hosp. Med. Ctr.

HEARING PROCEDURES

Mileikowsky v. West Hills Hosp. Med. Ctr., No. B186238 (Cal. Ct. App. Aug. 21, 2007)

The California Court of Appeal for the Second District, Division 8 reversed a lower court’s decision and held that a hearing officer did not have the authority to terminate a peer review proceeding prior to commencement of the hearing based on the physician’s failure to provide information from a similar proceeding at another hospital.

The appeals court had previously ruled on this matter, but granted both parties’ petitions for a rehearing in order to fully consider the points raised in the petitions. The appeals court again held that the hearing officer did not have the authority to terminate the hearing. The appeals court found that the decision to terminate the hearing – with the effect of letting the final proposed action stand – is a decision on the merits, and that such decision is for the hearing panel, since California law denies the hearing officer the right to vote on the merits. In so ruling, the court disagreed with a case from another decision involving the same physician, Mileikowsky v. Tenet Healthsystem, in which the appeals court there ruled that a hearing officer could terminate a hearing based on a physician’s disruptive conduct.

The appeals court remanded the case to the lower court directing that the hospital and the medical staff set aside the action which terminated the hearing, and to conduct the hearing.

 

Miller v. HCA, Inc.

IN THE SUPREME COURT OF TEXAS

NO. 01-0079

SIDNEY AINSLEY MILLER, BY AND THROUGH HER NEXT FRIEND KARLA H. MILLER, AND KARLA
H. MILLER AND J. MARK MILLER, INDIVIDUALLY

V.

HCA, INC., HCA-HOSPITAL CORPORATION OF AMERICA, HOSPITAL CORPORATION OF AMERICA
AND COLUMBIA/HCA HEALTHCARE CORPORATION

ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

Argued on April 3, 2002

JUSTICE ENOCH delivered the opinion of the Court.

JUSTICE O’N EILL and JUSTICE SM ITH did not participate in the decision.

The narrow question we must decide is whether Texas law recognizes a claim by parents for either

battery or negligence because their premature infant, born alive but in distress at only twenty-three weeks

of gestation, was provided resuscitative medical treatment by physicians at a hospital without parental

consent. The court of appeals, with one justice dissenting, held that neither claim could be maintained as

a matter of law because parents have no right to refuse urgently-needed life-sustaining medical treatment

for their child unless the child’s condition is “certifiably terminal” under the Natural Death Act1 (now the

1 Act of June 14, 1989, 71st Leg., R.S., ch. 678, § 1, 1989, Tex. Gen. Laws 2982 (formerly T EX. HEALTH &
SAFETY CODE §§ 672.002-.021), amended & renumbered by Act of June 18, 1999, 76th Leg., R.S., ch. 450, §§ 1.02-.03,
1999 Tex. Gen. Laws 2836 (current version at T EX. HEALTH & SAFETY CODE §§ 166.001-.166).

Advance Directives Act).2 And here it is undisputed that the Millers’ new-born infant was not “certifiably

terminal.”

Although we agree with the court of appeals’ judgment, our reasoning differs somewhat. First,

there is no dispute in the evidence that the Millers’ premature infant could not be fully evaluated for medical

treatment until birth. As a result, any decisions concerning treatment for the Millers’ child would not be fully

informed decisions until birth. Second, the evidence further established that once the infant was born, the

physician attending the birth was faced with emergent circumstances — i.e., the child might survive with

treatment but would likely die if treatment was not provided before either parental consent or a court order

overriding the withholding of such consent could be obtained.

We hold that circumstances like these provide an exception to the general rule imposing liability on

a physician for treating a child without consent. That exception eliminates the Millers’ claim for battery.

We further conclude that the Millers’ negligence claim — premised not on any physician’s negligence in

treating the infant but on the hospital’s policies, or lack thereof, permitting a physician to treat their infant

without parental consent — fails as a matter of law for the same reasons. We accordingly affirm the court

of appeals’ judgment.

I. Facts

The unfortunate circumstances of this case began in August 1990, when approximately four months

before her due date, Karla Miller was admitted to Woman’s Hospital of Texas (the “Hospital”) in

2 36 S.W.3d 187, 195.

2

premature labor. An ultrasound revealed that Karla’s fetus weighed about 629 grams or 1 1/4 pounds and

had a gestational age of approximately twenty-three weeks. Because of the fetus’s prematurity, Karla’s

physicians began administering a drug designed to stop labor.

Karla’s physicians subsequently discovered that Karla had an infection that could endanger her life

and require them to induce delivery. Dr. Mark Jacobs, Karla’s obstetrician, and Dr. Donald Kelley, a

neonatologist at the Hospital, informed Karla and her husband, Mark Miller, that if they had to induce

delivery, the infant had little chance of being born alive. The physicians also informed the Millers that if the

infant was born alive, it would most probably suffer severe impairments, including cerebral palsy, brain

hemorrhaging, blindness, lung disease, pulmonary infections, and mental retardation. Mark testified at trial

that the physicians told him they had never had such a premature infant live and that anything they did to

sustain the infant’s life would be guesswork.

After their discussion, Drs. Jacobs and Kelley asked the Millers to decide whether physicians

should treat the infant upon birth if they were forced to induce delivery. At approximately noon that day,

the Millers informed Drs. Jacob and Kelley that they wanted no heroic measures performed on the infant

and they wanted nature to take its course. Mark testified that he understood heroic measures to mean

performing resuscitation, chest massage, and using life support machines. Dr. Kelley recorded the Millers’

request in Karla’s medical notes, and Dr. Jacobs informed the medical staff at the Hospital that no

neonatologist would be needed at delivery. Mark then left the Hospital to make funeral arrangements for

the infant.

In the meantime, the nursing staff informed other Hospital personnel of Dr. Jacobs’ instruction that

3

no neonatologist would be present in the delivery room when the Millers’ infant was born. An afternoon

of meetings involving Hospital administrators and physicians followed. Between approximately 4:00 p.m.

and 4:30 p.m that day, Anna Summerfield, the director of the Hospital’s neonatal intensive care unit, and

several physicians, including Dr. Jacobs, met with Mark upon his return to the Hospital to further discuss

the situation. Mark testified that Ms. Summerfield announced at the meeting that the Hospital had a policy

requiring resuscitation of any baby who was born weighing over 500 grams. Although Ms. Summerfield

agreed that she said that, the only written Hospital policy produced described the Natural Death Act and

did not mention resuscitating infants over 500 grams.

Moreover, the physicians at the meeting testified that they and Hospital administrators agreed only

that a neonatologist would be present to evaluate the Millers’ infant at birth and decide whether to

resuscitate based on the infant’s condition at that time. As Dr. Jacobs testified:

[W]hat we finally decided that everyone wanted to do was to not make the call prior to
the time we actually saw the baby. Deliver the baby, because you see there was this
[question] is the baby really 23 weeks, or is the baby further along, how big is the baby,
what are we dealing with. We decided to let the neonatologist make the call by looking
directly at the baby at birth.

Another physician who attended the meeting agreed, testifying that to deny any attempts at resuscitation

without seeing the infant’s condition would be inappropriate and below the standard of care.

Although Dr. Eduardo Otero, the neonatologist present in the delivery room when Sidney was

born, did not attend that meeting, he confirmed that he needed to actually see Sidney before deciding what

treatment, if any, would be appropriate:

Q.

Can you . . . tell us from a worst case scenario to a best case scenario, what type

4

A.

Q.

A.

Q.

of possibilities you’ve seen in your own personal practice?

Well, the worst case scenario is . . . the baby comes out and it’s dead, it has no
heart rate. . . . Or you have babies that actually go through a rocky start then
cruise through the rest and go home. And they may have small handicaps or they
may have some problems but — learning disabilities or something like that, but in
general, all babies are normal children or fairly normal children.

And is there any way that you could have made a prediction, at the time of
Sidney’s birth, where she would fall in that range of different options?

No, sir.

Is there any way that you can make that decision, as to whether the newborn infant
will be viable or not in a case such as Sidney’s, before the time of delivery, an
assessment at the time of delivery?

A.

No.

Mark testified that, after the meeting, Hospital administrators asked him to sign a consent form

allowing resuscitation according to the Hospital’s plan, but he refused. Mark further testified that when he

asked how he could prevent resuscitation, Hospital administrators told him that he could do so by removing

Karla from the Hospital, which was not a viable option given her condition. Dr. Jacobs then noted in

Karla’s medical charts that a plan for evaluating the infant upon her birth was discussed at that afternoon

meeting.

That evening, Karla’s condition worsened and her amniotic sac broke. Dr. Jacobs determined that

he would have to augment labor so that the infant would be delivered before further complications to

Karla’s health developed. Dr. Jacobs accordingly stopped administering the drug to Karla that was

designed to stop labor, substituting instead a drug designed to augment labor. At 11:30 p.m. that night,

5

Karla delivered a premature female infant weighing 615 grams, which the Millers named Sidney. Sidney’s

actual gestational age was twenty-three and one-seventh weeks. And she was born alive.

Dr. Otero noted that Sidney had a heart beat, albeit at a rate below that normally found in full-term

babies. He further noted that Sidney, although blue in color and limp, gasped for air, spontaneously cried,

and grimaced. Dr. Otero also noted that Sidney displayed no dysmorphic features other than being

premature. He immediately “bagged” and “intubated” Sidney to oxygenate her blood; he then placed her

on ventilation. He explained why:

Because this baby is alive and this is a baby that has a reasonable chance of living. And
again, this is a baby that is not necessarily going to have problems later on. There are
babies that survive at this gestational age that — with this birth weight, that later on go on
and do well.

Neither Karla nor Mark objected at the time to the treatment provided.

Sidney initially responded well to the treatment, as reflected by her Apgar scores. An Apgar score

records five different components of a new-born infant: respiratory effort, heart rate, reflex activity, color,

and muscle tone.3 Each component gets a score of zero, one, or two, with a score of two representing the

best condition.4 Sidney’s total Apgar score improved from a three at one minute after birth to a six at five

minutes after birth. But at some point during the first few days after birth, Sidney suffered a brain

hemorrhage — a complication not uncommon in infants born so prematurely.

There was conflicting testimony about whether Sidney’s hemorrhage occurred because of the

3 Cruz ex rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 642 n.16 (Tex. App.-El Paso 2001, pet.

denied).

4 Id.

6

treatment provided or in spite of it. Regardless of the cause, as predicted by Karla’s physicians, the

hemorrhage caused Sidney to suffer severe physical and mental impairments. At the time of trial, Sidney

was seven years old and could not walk, talk, feed herself, or sit up on her own. The evidence

demonstrated that Sidney was legally blind, suffered from severe mental retardation, cerebral palsy,

seizures, and spastic quadriparesis in her limbs. She could not be toilet-trained and required a shunt in her

brain to drain fluids that accumulate there and needed care twenty-four hours a day. The evidence further

demonstrated that her circumstances will not change.

The Millers sued HCA, Inc., HCA-Hospital Corporation of America, Hospital Corporation of

America, and Columbia/HCA Healthcare Corporation (collectively, “HCA”), and the Hospital, a subsidiary

of HCA. They did not sue any physicians, including Dr. Otero, the physician who actually treated Sidney.

Instead, the Millers asserted battery and negligence claims only against HCA and the Hospital.

The Millers’ claims stemmed from their allegations that despite their instructions to the contrary,

the Hospital not only resuscitated Sidney but performed experimental procedures and administered

experimental drugs, without which, in all reasonable medical probability, Sidney would not have survived.

The Millers also alleged that the Hospital’s acts and/or omissions were performed with HCA’s full

knowledge and consent. Although the Millers did not sue Dr. Otero, they alleged that he and other

Hospital personnel were the Hospital’s apparent or ostensible agents.

The Millers alleged that the Hospital, HCA, Inc., and Hospital Corporation of America were alter

egos of or business conduits created and maintained for impermissible purposes by HCA-Hospital

Corporation of America. The Millers further alleged that the Hospital, HCA, Inc., and Hospital

7

Corporation of America integrated their resources to achieve a common business enterprise. Thus, the

Millers asserted that the HCA defendants were jointly and severally liable. The trial court granted HCA’s

motion for a separate trial from the Hospital and then, at the Millers’ request, tried the Millers’ claims

against HCA first.

Though the Hospital was not a party at the trial against HCA, the trial court submitted questions

to the jury about the Hospital’s conduct. The jury found that the Hospital, without the consent of Karla or

Mark Miller, performed resuscitative treatment on Sidney. The jury also found that the Hospital’s and

HCA’s negligence “proximately caused the occurrence in question.” The jury concluded that HCA and

the Hospital were grossly negligent and that the Hospital acted with malice. The jury also determined that

Dr. Otero acted as the Hospital’s agent in resuscitating Sidney and that HCA was responsible for the

Hospital’s conduct under alter ego and single business enterprise theories. The trial court rendered

judgment jointly and severally against the HCA defendants on the jury’s verdict of $29,400,000 in actual

damages for medical expenses, $17,503,066 in prejudgment interest, and $13,500,000 in exemplary

damages.

HCA appealed. The court of appeals, with one justice dissenting, reversed and rendered judgment

that the Millers take nothing. The court concluded that the Texas Legislature allowed parents to withhold

medical treatment, urgently needed or not, for a child whose medical condition is certifiably terminal under

the Natural Death Act.5 But the court held that the Legislature had not extended that right to parents of

5 36 S.W.3d at 193.

8

children with non-terminal impairments, deformities, or disabilities, regardless of their severity.6

The court acknowledged that the Natural Death Act did not “impair or supersede any legal right

a person may have to withhold or withdraw life-sustaining treatment in a lawful manner.”7 But the court

noted that the parties had not cited, and the court did not find, any authority allowing a parent to withhold

urgently-needed life-sustaining medical treatment from a non-terminally ill child. Thus, the court concluded

that, to the extent an infant’s condition is not certified as terminal, a health care provider is under no duty

to follow a parent’s instruction to withhold urgently-needed life-sustaining medical treatment.8

The court noted that when non-urgently-needed or non-life-sustaining medical treatment is

proposed for a child, a court order is needed to override a parent’s refusal to consent to the treatment

because a determination of such issues as the child’s safety, welfare, and best interest can vary under

differing circumstances and alternatives.9 But the court held that when the need for life-sustaining medical

treatment is or becomes urgent while a non-terminally ill child is under a health care provider’s care, and

when the child’s parents refuse consent to treatment, a court order is unnecessary to override that refusal.10

According to the court, no legal or factual issue exists to decide about providing such treatment because

6 Id.

7 Id. at 193-94; see T EX. HEALTH & SAFETY CODE § 166.051.

8 36 S.W.3d at 195.

9 Id.

10 Id.

9

a court cannot decide between impaired life versus no life at all.11

Given this backdrop, the court concluded that the Millers had no right to deny the medical treatment

given to Sidney and that no court order was necessary to overcome their refusal to consent.12 Thus, the

court sustained HCA’s contentions that it did not owe the Millers a tort duty to: (a) refrain from

resuscitating Sidney; (b) have no policy requiring resuscitation of patients like Sidney without consent; and

(c) have policies prohibiting resuscitation of patients like Sidney without consent.13

The dissenting justice disagreed that no court order was necessary to override the Millers’ refusal

to consent.14 According to the dissent, a court must decide the most important issue: What is in the best

interest of the child?15 The dissent concluded that a court decision in favor of resuscitation would afford

the physician and the Hospital the consent necessary to treat Sidney.16 The dissent further concluded that

the Natural Death Act was not mandatory and the Millers were not required to seek a directive under the

Act.17 The dissent would have affirmed the trial court’s judgment.18

We granted the Millers’ petition for review to consider this important and difficult matter. In

11 Id.

12 Id.

13 Id. at 196.

14 Id. at 197.

15 Id.

16 Id.

17 Id.

18 Id. at 199.

10

addition to briefing from the parties, we received several amici briefs, some supporting the Millers’ position

and some supporting HCA’s position.

II. Analysis

This case requires us to determine the respective roles that parents and healthcare providers play

in deciding whether to treat an infant who is born alive but in distress and is so premature that, despite

advancements in neonatal intensive care, has a largely uncertain prognosis. Although the parties have cited

numerous constitutional provisions, statutes, and cases, we conclude that neither the Texas Legislature nor

our case law has addressed this specific situation. We accordingly begin our analysis by focusing on what

the existing case law and statutes do address.

Generally speaking, the custody, care, and nurture of an infant resides in the first instance with the

parents.19 As the United States Supreme Court has acknowledged, parents are presumed to be the

appropriate decision-makers for their infants:

Our jurisprudence historically has reflected Western civilization concepts of the family as
a unit with broad parental authority over minor children. Our cases have consistently
followed that course; our constitutional system long ago rejected any notion that a child is
“the mere creature of the State” and, on the contrary, asserted that parents generally “have
the right, coupled with the high duty, to recognize and prepare [their children] for additional
obligations.” . . . Surely, this includes a “high duty” to recognize symptoms of illness and
to seek and follow medical advice. The law’s concept of the family rests on a presumption
that parents possess what a child lacks in maturity, experience, and capacity for judgment
required for making life’s difficult decisions. More important, historically it has recognized
that natural bonds of affection lead parents to act in the best interests of their children.20

19 See Prince v. Massachusetts , 321 U.S. 158, 166 (1944).

20 Parham v. J.R., 442 U.S. 584, 602 (1979) (citations omitted).

11

The Texas Legislature has likewise recognized that parents are presumed to be appropriate decision-

makers, giving parents the right to consent to their infant’s medical care and surgical treatment.21 A logical

corollary of that right, as the court of appeals here recognized, is that parents have the right not to consent

to certain medical care for their infant, i.e., parents have the right to refuse certain medical care.22

O f course, this broad grant of parental decision-making authority is not without limits. The State’s

role as parens patriae permits it to intercede in parental decision-making under certain circumstances. As

the United States Supreme Court has noted:

[A]s persons unable to protect themselves, infants fall under the parens patriae power of
the state. In the exercise of this authority, the state not only punishes parents whose
conduct has amounted to abuse or neglect of their children but may also supervene
parental decisions before they become operative to ensure that the choices made are not
so detrimental to a child’s interests as to amount to neglect and abuse.23

But the Supreme Court has also pointed out:

[A]s long as parents choose from professionally accepted treatment options the choice is
rarely reviewed in court and even less frequently supervened. The courts have exercised
their authority to appoint a guardian for a child when the parents are not capable of
participating in the decisionmaking or when they have made decisions that evidence
substantial lack of concern for the child’s interests.24

The Texas Legislature has acknowledged the limitations on parental decision-making. For

example, the Legislature has provided in the Family Code that the rights and duties of parents are subject

21 T EX. FAM. CODE § 151.001(a)(6).

22 36 S.W.3d at 191; see Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 270 (1990).

23 Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 627 n.13 (1986) (citation omitted).

24 Id.

12

to modification by court order.25 And Texas courts have recognized their authority to enter orders, under

appropriate circumstances, appointing a temporary managing conservator who may consent to medical

treatment refused by a child’s parents.26

With respect to consent, the requirement that permission be obtained before providing medical

treatment is based on the patient’s right to receive information adequate for him or her to exercise an

informed decision to accept or refuse the treatment.27 Thus, the general rule in Texas is that a physician

who provides treatment without consent commits a battery.28 But there are exceptions. For example, in

Gravis v . Physicians & Surgeons Hospital, this Court acknowledged that “consent will be implied where

the patient is unconscious or otherwise unable to give express consent and an immediate operation is

necessary to preserve life or health.”29

In Moss v. Rishworth, the court held that a physician commits a “legal wrong” by operating on a

minor without parental consent when there is “an absolute necessity for a prompt operation, but not

emergent in the sense that death would likely result immediately upon the failure to perform it.”30 But the

court in Moss expressly noted that “it [was] not contended [there] that any real danger would have resulted

25 T EX. FAM. CODE § 151.001(d)(1).

26 See, e.g., O.G. v. Baum, 790 S.W.2d 839, 840-41 (Tex. App. – Houston [1st Dist.] 1990, orig. proceeding);
Mitchell v. Davis , 205 S.W.2d 812, 813-15 (Tex. Civ. App. – Dallas 1947, writ ref’d).

27 See Wilson v. Scott, 412 S.W.2d 299, 301 (Tex. 1967).

28 Gravis v. Physicians & Surgeons Hosp., 427 S.W.2d 310, 311 (Tex. 1968); see Moss v. Rishworth, 222 S.W.
225, 226-27 (Tex. Comm’n App. 1920, judgm’t approved).

29 Gravis , 427 S.W.2d at 311.

30 222 S.W. at 226.

13

to the child had time been taken to consult the parent with reference to the operation.”31 Moss therefore

implicitly acknowledges that a physician does not commit a legal wrong by operating on a minor without

consent when the operation is performed under emergent circumstances — i.e., when death is likely to

result immediately upon the failure to perform it.32

Moss guides us here. We hold that a physician, who is confronted with emergent circumstances

and provides life-sustaining treatment to a minor child, is not liable for not first obtaining consent from the

parents. The Millers cite to Texas Family Code section 32.001,33 Texas Health & Safety Code section

773.008,34 and Texas Revised Civil Statutes article 4590i, section 6.07(a)(2),35 as illustrating that implied

consent does not arise from an emergency context when a healthcare provider has actual notice of lack of

consent. Because these statutes apply when a parent is not present to consent, the Millers suggest that this

must mean that emergency services cannot be provided when the parents refuse consent. But that is not

so.

Providing treatment to a child under emergent circumstances does not imply consent to treatment

despite actual notice of refusal to consent. Rather, it is an exception to the general rule that a physician

commits a battery by providing medical treatment without consent. As such, the exception is narrowly

31 Id.

32 See id.

33 T EX. FAM. CODE § 32.001.

34 T EX. HEALTH & SAFETY CODE § 773.008(3).

35 T EX. REV. CIV. STAT . art. 4590i, § 6.07(a)(2).

14

circumscribed and arises only in emergent circumstances when there is no time to consult the parents or

seek court intervention if the parents withhold consent before death is likely to result to the child. Though

in situations of this character, the physician should attempt to secure parental consent if possible, the

physician will not be liable under a battery or negligence theory solely for proceeding with the treatment

absent consent.36

We recognize that the Restatement (Second) of Torts § 892D provides that an individual is not

liable for providing emergency treatment without consent if that individual has no reason to believe that the

other, if he or she had the opportunity to consent, would decline.37 But that requirement is inapplicable here

because, as we have discussed, the emergent circumstances exception does not imply consent.

Further, the emergent circumstances exception acknowledges that the harm from failing to treat

outweighs any harm threatened by the proposed treatment,38 because the harm from failing to provide life-

sustaining treatment under emergent circumstances is death. And as we acknowledged in Nelson v .

Krusen, albeit in the different context of a wrongful life claim, it is impossible for the courts to calculate the

relative benefits of an impaired life versus no life at all.39

Following these guiding principles, we now determine whether the Millers can maintain their battery

and negligence claims against HCA. The jury found that the Hospital, through Dr. Otero, treated Sidney

36 Cf. Canterbury v. Spence, 464 F.2d 772, 788-89 (D.C. Cir. 1972).

37 RESTATEMENT (SECOND) OF TORTS § 892D(b) (1979).

38 Cf. Canterbury, 464 F.2d at 788.

39 678 S.W.2d 918, 925 (Tex. 1984).

15

without the Millers’ consent. The parties do not challenge that finding. Thus, we only address whether the

Hospital was required to seek court intervention to overturn the lack of parental consent – which it

undisputedly did not do – before Dr. Otero could treat Sidney without committing a battery.

The Millers acknowledge that numerous physicians at trial agreed that, absent an emergency

situation, the proper course of action is court intervention when health care providers disagree with parents’

refusal to consent to a child’s treatment. And the Millers contend that, as a matter of law, no emergency

existed that would excuse the Hospital’s treatment of Sidney without their consent or a court order

overriding their refusal to consent. The Millers point out that before Sidney’s birth, Drs. Jacobs and Kelley

discussed with them the possibility that Sidney might suffer from the numerous physical and mental

infirmities that did, in fact, afflict her. And some eleven hours before Sidney’s birth, the Millers indicated

that they did not want any heroic measures performed on Sidney. The Millers note that these factors

prompted the dissenting justice in the court of appeals to conclude that “[a]nytime a group of doctors and

a hospital administration ha[ve] the luxury of multiple meetings to change the original doctors’ medical

opinions, without taking a more obvious course of action, there is no medical emergency.”40

We agree that a physician cannot create emergent circumstances from his or her own delay or

inaction and escape liability for proceeding without consent. But the Millers’ reasoning fails to recognize

that, in this case, the evidence established that Sidney could only be properly evaluated when she was born.

Any decision the Millers made before Sidney’s birth concerning her treatment at or after her birth would

40 36 S.W.3d at 198.

16

necessarily be based on speculation. Therefore, we reject the Millers’ argument that a decision could

adequately be made pre-birth that denying all post-birth resuscitative treatment would be in Sidney’s best

interest. Such a decision could not control whether the circumstances facing Dr. Otero were emergent

because it would not have been a fully informed one according to the evidence in this case.

The Millers point out that physicians routinely ask parents to make pre-birth treatment choices for

their infants including whether to accept or refuse in utero medical treatment and to continue or terminate

a pregnancy. While that may be entirely true, the evidence here established that the time for evaluating

Sidney was when she was born. The evidence further reflected that Sidney was born alive but in distress.

At that time, Dr. Otero had to make a split-second decision on whether to provide life-sustaining treatment.

While the Millers were both present in the delivery room, there was simply no time to obtain their consent

to treatment or to institute legal proceedings to challenge their withholding of consent, had the Millers done

so, without jeopardizing Sidney’s life. Thus, although HCA never requested a jury instruction, nor

challenged the absence of a jury instruction, on whether Dr. Otero treated Sidney under emergent

circumstances, the evidence conclusively established that Dr. Otero was faced with emergent circumstances

when he treated Sidney. Those circumstances resulted from not being able to evaluate Sidney until she was

born, not because of any delay or inaction by HCA, the Hospital, or Dr. Otero. As HCA’s expert testified:

I think the important thing to realize here is the physicians have an obligation both for
assessment and treatment, and the physicians fulfilled that obligation in this case by
attending the delivery, making immediate assessment and determining that the child was
viable. That’s an important diagnosis that the physicians — two physicians felt that Sidney
had the ability to live outside the womb. Having done so, it is important that life-sustaining
treatment be given on an emergent basis where that is essential to the maintenance of life,
and that is what was done here. It would be improper not to order that care in [an]

17

emergent . . . situation.

We acknowledge that certain physicians in this case initially asked the Millers to decide whether

Sidney should be resuscitated some eleven hours before her birth. And certain physicians and Hospital

administrators asked the Millers to consent to the subsequent plan developed to have a neonatologist

present at Sidney’s delivery to evaluate and possibly treat her. We agree that, whenever possible,

obtaining consent in writing to evaluate a premature infant at birth and to render any warranted medical

treatment is the best course of action. And physicians and hospitals should always strive to do so. But if

such consent is not forthcoming, or is affirmatively denied, we decline to impose liability on a physician

solely for providing life-sustaining treatment under emergent circumstances to a new-born infant without

that consent.

The Millers contend that they offered testimony from Dr. Otero that Sidney might have survived

without treatment. But we do not read Dr. Otero’s testimony as saying that. At one point, Dr. Otero

testified that there was no doubt that Sidney would have died but for his treatment of her. He then testified

that premature infants, like Sidney, might not die immediately without treatment but are still alive within two

or three hours gasping for breath or crying and then are rushed to him for treatment. Therefore, contrary

to the Miller’s assertion, Dr. Otero did not testify that Sidney might well have survived without any

treatment at all.

Moreover, there was testimony that the sooner treatment was provided, the better chance Sidney

had for survival without brain damage or, at least, without further brain damage. Thus, the evidence

established that, at Sidney’s birth, Dr. Otero was faced with emergent circumstances in deciding whether

18

to treat Sidney in an attempt to prevent her otherwise likely death.

There was testimony that Dr. Otero’s resuscitative treatment caused Sidney’s mental and physical

infirmities. But there was also testimony that it did not and, in fact, the oxygen provided during the first days

of Sidney’s life prevented her from suffering even further brain damage. Although the jury found that the

HCA’s and the Hospital’s negligence caused the “occurrence in question,” it is unclear what was meant

by the “occurrence in question.”

If that phrase refers to Sidney’s mental and physical infirmities, the Millers never sued Dr. Otero

or any other physician. And there was no allegation that they negligently treated Sidney, which caused her

infirmities. Instead, the Millers’ only negligence claim was that HCA and the Hospital had policies, or

lacked policies, and took actions that allowed Sidney to be treated without their consent. Thus, their

negligence claim is based on the lack of consent before treatment, just like their battery claim.

If the phrase refers to Dr. Otero resuscitating Sidney against the Millers’ wishes, it was not HCA’s

or the Hospital’s policies, or lack thereof, that permitted Dr. Otero to treat Sidney without consent. Rather,

it was the emergent circumstances that caused that to happen. Because Dr. Otero treated Sidney under

emergent circumstances, he did not commit a battery. And because Dr. Otero did not commit a battery,

HCA is not liable derivatively.41 Nor was the Hospital negligent for allowing Dr. Otero to treat Sidney

under the circumstances without the Millers’ consent.

The Millers raise additional arguments that we need not address, given our holding on the emergent

41 See Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 598-99 (Tex. App.—Texarkana 1994, writ

denied).

19

circumstances exception. Similarly, HCA raises several arguments about why it cannot be held liable for

the Millers’ battery and negligence claims. Although we do not need to address those arguments to resolve

this case, we do address two matters that the court of appeals discussed.

HCA argues that the federal “Baby Doe” regulations42 are part of Texas law and forbid any denial

of medical care based on quality-of-life considerations. While we do not disagree with HCA’s assertion

as a general proposition, HCA cites 42 U.S.C. § 5106a(b)(2)(B) as support for its contention that the

Baby Doe regulations were “scrupulously followed in this case” and “faithful adherence to the public policy

established by the regulations should not be thwarted through civil liability in damages . . . .” But 42 U.S.C.

§ 5106a(b)(2)(B) provides that a federally-funded state must implement “procedures for responding to the

reporting of medical neglect” which include:

authority, under State law, for the State child protective services system to pursue any legal
remedies, including the authority to initiate legal proceedings in a court of competent
jurisdiction, as may be necessary to prevent the withholding of medically indicated
treatment from disabled infants with life-threatening conditions.43

Assuming that this provision applies here, it states that Texas must provide a mechanism by which the child

protective services system can initiate legal proceedings to prevent the withholding of medical treatment

from infants. And the Family Code and Texas Administrative Code contain such provisions.44

But it is undisputed that neither the Hospital nor HCA initiated or requested child protective

42 42 U.S.C. §§ 5101 et seq.; 45 C.F.R. §§ 1340.1 et seq.

43 42 U.S.C. § 5106a(b)(2)(B) (footnote omitted).

44 See, e.g., T EX. FAM. CODE §§ 261.101, 261.103; 40 T EX. ADMIN. CODE § 700.504.

20

services to initiate legal proceedings to override the Millers’ “withholding of medical treatment” by refusing

to consent to Sidney’s treatment. Thus, the federal funding regulations appear to contemplate legal

proceedings to override the lack of parental consent, and they do not answer the question of whether Dr.

Otero committed a battery by providing treatment without doing so. Further, we agree with the court of

appeals’ conclusion that the disposition of that issue “is governed by state law rather than federal funding

authorities.”45

HCA also argues, and the court of appeals agreed, that parents can withhold “urgently-needed life-

sustaining medical treatment” for their child only when the requirements of the Natural Death Act are

satisfied – i.e., only when the child is certifiably terminal. But the Act expressly states that it does not impair

or supersede any legal right a person may have to withhold or withdraw life-sustaining treatment in a lawful

manner.46 In any event, we need not decide this issue. The Millers asserted battery and negligence claims

based on Dr. Otero treating Sidney without their consent. As we have discussed, when emergent

circumstances exist, a physician cannot be held liable under either battery or negligence theories solely for

providing life-sustaining medical treatment to a minor child without parental consent.

III. Conclusion

Dr. Otero provided life-sustaining treatment to Sidney under emergent circumstances as a matter

of law. Those circumstances provide an exception to the general rule imposing liability on a physician for

providing treatment to a minor child without first obtaining parental consent. Therefore, Dr. Otero did not

45 36 S.W.3d at 196-97.

46 T EX. HEALTH & SAFETY CODE § 166.051.

21

commit a battery. And HCA cannot be held liable for the Millers’ battery and negligence claims. We are

not presented with and do not decide the question of whether the rule we have announced applies to adults.

We affirm the court of appeals’ judgment.

Craig T. Enoch
Justice

OPINION DELIVERED: September 30, 2003

22