Maheshwari v. Governing Bd. of Sharp Mem’l Hosp.

Maheshwari v. Governing Bd. of Sharp Mem’l Hosp.,

No. D039509 (Super. Ct. No. GIC771148) (Cal. Ct. App. Apr. 10, 2003)

A
hospital denied a physician’s application based on concerns about the quality
of care he provided at another hospital, and because the physician did not provide
sufficient information along with his medical staff application to allow the
hospital to perform a complete evaluation of his qualifications. The California
Court of Appeal affirmed the judgment of the Hospital Hearing Panel, Governing
Board, and trial court. The court determined that the hospital did not act arbitrarily
and capriciously in denying the physician’s application, because the hospital
attempted to obtain all relevant information before it made a decision on the
application, and it was the physician’s own noncompliance that hindered these
efforts. The court also held that the physician’s refusal to provide the requested
patient information was not justified, and the hospital was within its rights
to consider this lack of cooperation in refusing to grant privileges.

Machamer v. Hospital of the University of Pennsylvania

Machamer v. Hospital of the University of
Pennsylvania,
No. 98-6109 (E.D. Penn. May 8, 2000)

Plaintiff sustained a back injury while performing her duties
as a nursing assistant. Once she was cleared by a
physician to return to work, she was placed back on
the day shift for training and observation so that
she could successfully complete her post-hiring
probationary period. Shortly thereafter, however,
plaintiff was terminated because of two patient care
incidents that the defendant believed threatened the
well-being of patients. The nurse filed suit under
the Americans with Disabilities Act (ADA) claiming
that she was terminated due to her disability and
that the defendant refused to accommodate her
disability by transferring her to the less rigorous
night shift. The court granted summary judgment to
the defendant holding that the plaintiff did not
prove that she was “disabled” within the
meaning of the ADA, pointing to uncontested evidence
that the plaintiff had been cleared by a physician
to return to work without any restrictions. The
court also held that the plaintiff presented no
evidence to contest the defendant’s position that
she was terminated because of the two incidents in
which her actions threatened the well-being of
patients under her care.

Madsen v. Audrain Health Care

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 01-3252
___________

Kurt R.E. Madsen, D.O.,

Appellant,

v.

Audrain Health Care, Inc., doing
business as Audrain Medical
Center, Joseph A. Corrado, M.D.,
Michael D. Jones, M.D.,

Appellees.

*
*
*
*
* Appeal from the United States
* District Court for the Eastern
* District of Missouri.
*
*
*
*
*
___________

Submitted: April 18, 2002

Filed: July 18, 2002
___________

Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.
___________

BEAM, Circuit Judge.

Appellant Dr. Kurt Madsen appeals the order of the district court dismissing
each count in his complaint. Upon review de novo, we affirm in part and reverse in
part.

I.

BACKGROUND

For purposes of our review, we accept as true the factual allegations in
Madsen’s complaint. Botz v. Omni Air Int’l, 286 F.3d 488, 490 (8th Cir. 2002). Dr.
Madsen is a licensed physician specializing in orthopedics medicine who worked in
Mexico, Missouri, for Audrain Health Care, Inc. In his complaint, Madsen alleges
that on August 14, 1997, he entered into a contract (“Physician Agreement”) with
Audrain, which provided for Madsen to establish an orthopedic medical practice in
Mexico in return for a guaranteed minimum income paid by Audrain. On September
1, 1998, Madsen applied for and was granted medical staff privileges at the hospital.
On September 24, 1998, Madsen alleges that Dr. Corrado and Dr. Jones, Chief of
Staff and Chief of Surgery at Audrain respectively, contacted him with concerns they
had regarding Madsen’s practice and skills. Madsen further alleges that on November
19, 1998, he was again called to meet with Corrado, Jones, and Garf Thomas,
Audrain’s administrator, to further discuss these concerns. Following these
communications, the hospital brought a complaint against Madsen before the Medical
Staff Executive Committee. Madsen alleges that the Executive Committee made
certain adverse recommendations in response to the complaint and forwarded its
report to Audrain’s Medical Staff Board of Directors for approval.

When Madsen received notice of the Executive Committee’s adverse
recommendations, he requested a hearing before an ad hoc committee of Audrain’s
Medical Staff, as provided for in the Medical Staff Bylaws. At this hearing, held
February 25, 1999, the only evidence presented by Jones, Corrado, and the hospital,
was Jones’ statement. Madsen points out in his complaint that he presented several
witnesses, including a Board Certified Orthopedic Surgeon who reviewed every
patient chart at issue and found no indication of any need to reduce Madsen’s
privileges. Following this hearing, the Executive Committee’s recommendation
remained adverse to Madsen. Madsen sought appellate review before the Board,
which concluded that the recommendations were “justified and not arbitrary or

-2-

capricious” and therefore adopted them as a final decision. Madsen was notified on
May 5, 1999. This final Board action was reported to the Missouri State Board of
Registration for the Healing Arts and the National Practitioner Data Bank.

Madsen alleges that as a direct result of the defendants’ wrongful acts, he was
forced to close his profitable practice in Missouri and relocate to Indiana. Count I of
Madsen’s complaint alleges that Audrain breached the Physician Agreement by
causing his privileges at Audrain to be adversely impacted, thus terminating Audrain’s
obligation to guarantee compensation to Madsen. Madsen brings Count II against all
defendants alleging that they tortiously interfered with his business relationships and
expectancies with his patients. Count III, against Audrain, alleges that Audrain’s
Medical Staff Bylaws constitute a contract between Audrain and Madsen and that
Audrain breached this contract. Count IV, against Jones and Corrado, alleges that
they conspired to cause Audrain to breach and terminate the Physician Agreement.
In Count V, Madsen alleges that Jones and Corrado conspired to cause Audrain to
breach and terminate the Medical Staff Bylaws, which Madsen claims support a
contractual relationship between the parties. Madsen seeks a declaratory judgment
in Count VI, declaring that the adverse decision is unjustified, arbitrary, and
capricious. Madsen further requests that this declaratory judgment be communicated
to the Missouri Board of Registration for the Healing Arts, the National Practitioner
Data Bank, and all other persons or entities to whom such adverse decision was
communicated. Finally, in Count VII, Madsen alleges that all of the defendants
maliciously communicated false information about him to others, including actual and
potential patients and state and federal agencies, damaging his reputation and earning
potential.

II.

DISCUSSION

We review de novo the district court’s grant of the defendants’ 12(b)(6) motion
to dismiss. Omni, 286 F.3d at 491. We construe Madsen’s complaint in the light

-3-

most favorable to him and determine whether he can prove any set of facts that would
entitle him to relief. Id.

A.

Count IV

Before we reach the merits of this appeal, we must first resolve the unique
procedural posture created by the district court’s dismissal of Count IV at Madsen’s
request. Count IV, which survived the defendants’ motion to dismiss, alleges that
defendants Jones and Corrado individually conspired to cause Audrain to breach and
terminate the Physician Agreement with Madsen. Although this count was not
dismissed by the district court in its December 7, 1999, memorandum and order,
Count IV was later dismissed without prejudice per Madsen’s suggestion at a hearing
concerning Madsen’s motion to alter or amend judgment.1 Although the district court
did not clearly articulate the basis for the dismissal of Count IV in its order, we
presume that this dismissal was entered pursuant to Federal Rule of Civil Procedure
41(a) (2), which allows for dismissal of actions by court order. Madsen’s intentions
with respect to Count IV are unclear.

Clearly Madsen sought dismissal of Count IV to allow immediate appeal of the
court’s otherwise interlocutory order when the district court denied Madsen’s request
to amend the earlier dismissal of all other counts. During briefing and at oral
argument, Madsen only sought reinstatement of Counts I, II, III, V, VI and VII. The

1Madsen boldly challenges the “flawed logic” of the district court in that it
dismissed Count I of the complaint, which alleged breach of contract with regard to
the Physician Agreement, while allowing Count IV, which alleged tortious
interference with that same agreement by Drs. Jones and Corrado. Madsen’s own
logic eludes us. Count I was dismissed because a private hospital has discretion
regarding its exclusion of a physician or surgeon from practicing therein. This
certainly does not mean the Physician Agreement is wholly unenforceable in other
respects.

-4-

question before us is whether the district court abused its discretion when it dismissed
Count IV without prejudice for the purpose of allowing Madsen to appeal the
dismissal of the remaining claims. See Great Rivers Coop. v. Farmland Indus., Inc.,
198 F.3d 685, 689 (8th Cir. 1999). Our precedent in this type of case does not bode
well for Madsen. In fact, “[i]n most cases . . . a district court does abuse its discretion
when it frustrates the limitations on federal appellate jurisdiction by entering a Rule
41(a)(2) order dismissing remaining claims without prejudice for the purpose of
facilitating the immediate appeal of an earlier interlocutory order.” Id. at 689-90.

Under these circumstances, the question of remedy looms. “In most cases, the
proper remedy will be to reverse the Rule 41(a)(2) order and remand for completion
of the case, without considering the merits of the earlier interlocutory order(s).” Id.
at 690. We may also deem the ambiguous voluntary dismissal of Count IV to be with
prejudice and go on to consider the appeal from the district court’s dismissal of all
remaining claims. Id.; see also Minnesota Pet Breeders, Inc. v. Schell & Kampeter,
Inc., 41 F.3d 1242, 1245 (8th Cir. 1994). Madsen may not evade the final judgment
requirement of Federal Rule of Civil Procedure 54(b) by seeking a non-prejudicial
dismissal of Count IV. Minnesota Pet Breeders, 41 F.3d at 1245. Under this rubric,
we choose the latter remedy, discussed at oral argument,2 and deem Madsen’s request
for dismissal of Count IV to be with prejudice.

B.

Counts I and II

In addressing Counts I and II of Madsen’s complaint, the district court turned
to Cowan v. Gibson, 392 S.W.2d 307 (Mo. 1965). In Cowan, a physician who had

2Madsen was notified at oral argument of the risk of losing Count IV altogether
if he proceeded under the current procedural posture. He assured the court that
treating Count IV as being dismissed with prejudice would not hurt the case and
proceeded to argue, as he did in briefing, what he considers to be the “meat of the
case.”

-5-

been denied reinstatement to a hospital’s medical staff alleged a wrongful conspiracy
to exclude him and to injure him in the practice of medicine. Id. at 308. The
Missouri Supreme Court reiterated the general rule that “‘the exclusion of a physician
or surgeon from practicing [in a private hospital] is a matter which rests in the
discretion of the managing authorities.'” Id. (quoting Annotation 24 A.L.R.2d 850,
852). However, Cowan was not “a suit between the doctor and the hospital or its
governing board or staff alone in their hospital character and capacities.” Id. at 309.
Because the physician named two doctors in their individual capacity alleging “that
the two doctors in their personal professional capacities conspired with hospital board
members to the end and for the purpose of interfering with Dr. Cowan and his
contractual rights with his patients all to their financial advantage–all of which [was]
outside the operation and government of the hospital,” the allegations fell outside of
the general rule and the case was remanded. Id.

In Count I, Madsen alleges breach of contract by the hospital with respect to
the Physician Agreement. Count II alleges tortious interference with business
relationships against all defendants. As explained by the district court, nothing in
Madsen’s complaint removes it from the general rule that the exclusion of a physician
from practicing in a private hospital is a discretionary matter resting with the
managing authorities. Id. at 308. This is a suit between a doctor and the hospital and
its governing staff in their hospital character and capacities. Further, contrary to
Madsen’s argument, no factual determination is required. The construction of an
unambiguous contract is a question of law for the court. Contract Freighters, Inc. v.
J.B. Hunt Transport, Inc., 245 F.3d 660, 663 (8th Cir. 2001) (applying Missouri law).
The Physician Agreement provides that if Madsen loses staff privileges at Audrain,
such action terminates the agreement. Thus, termination is not a breach of contract,
but instead, is expressly provided for in the contract. The rule from Cowan applies
and Counts I and II were appropriately dismissed.

-6-

C.

Counts III and V

The district court determined that the Medical Staff Bylaws were not
incorporated into the Physician Agreement and dismissed Counts III and V
accordingly. We agree with the reasoning of the district court as to these counts. The
mere reference in the Physician Agreement to the Medical Staff Bylaws does not
create a contractual relationship between Madsen and Audrain with regard to those
Bylaws in their entirety. The Medical Staff Bylaws were not incorporated into the
Physician Agreement, as Madsen argues, and are not part of the terms of the contract
that existed between these parties. Accordingly, there is no basis for Madsen’s claims
of breach of contract or tortious interference with the Medical Staff Bylaws.

In Zipper, D.O. v. Health Midwest, 978 S.W.2d 398 (Mo. Ct. App. 1998), the
Missouri court held that “hospital bylaws cannot be considered a contract under
Missouri law because consideration is lacking.” Id. at 416. Madsen correctly notes
that in some instances a hospital can be subjected to contractual enforcement of its
Medical Staff Bylaws if a contractual relationship is established in a separate
document. Id. at 417. However, like in Zipper, procedures purportedly available to
Madsen through Audrain Bylaws are not set forth in a separate document. The
limited reference to the Bylaws in the Physician Agreement is insufficient to support
the creation of a separate contractual relationship. Madsen alleges that the Medical
Staff Bylaws were incorporated in three ways–by way of the implied terms of the
contractual relationship of the parties, directly incorporated in the Physician
Agreement, and by subsequent agreements of the parties. We disagree.

Any reference to the Bylaws in the Physician Agreement is cursory, and only
then articulates what Madsen’s responsibilities are in relation to his contracted
obligations. For example, the Physician Agreement in section 1.2 states that “[d]octor
shall perform the duties described in this Section 1.2, and such duties shall be
performed, in accordance with the bylaws, policies and rules of the Hospital and the

-7-

Medical Staff.” Requiring that Madsen act in accordance with the Medical Staff
Bylaws is hardly incorporation of the Bylaws in their entirety, binding both parties.
Further, the fact that the Medical Staff Bylaws were specifically binding on Madsen
as part of the contractual relationship, does not necessarily mean that the parties
reciprocally contracted for the same as to Audrain. “There is no necessity ‘that for
each stipulation in a contract binding the one party there must be a corresponding
stipulation binding the other.'” Laclede Gas Co. v. Amoco Oil Co., 522 F.2d 33, 36
(8th Cir. 1975) (quoting James B. Berry’s Sons Co. v. Monark Gasoline & Oil Co.,
32 F.2d 74, 75 (8th Cir 1929). So even recognizing the potential for hospitals to
separately create a contractual relationship with their physicians under their bylaws,
it did not exist in this instance.

Finally, Missouri law in this respect is clear. The expressed policy in Missouri
is the assurance of quality health care, which is unduly impinged by allowing a
physician to seek damages for an alleged failure of a hospital to follow the procedures
established by its bylaws. Zipper, 978 S.W.2d at 417. The district court
appropriately dismissed Counts III and V of Madsen’s complaint.

D.

Counts VI and VII

The district court dismissed Madsen’s Count VI, seeking a declaratory
judgment, and Count VII, which alleges that all defendants committed slander,
holding that the rule in Cowan requires dismissal of both counts. Cowan certainly
addresses Count VI of Madsen’s complaint but we fail to see how Cowan is
instructive on Count VII.

In Count VI, Madsen alleges that the decision adverse to Madsen should be
declared unjustified, arbitrary and capricious, and ordered to be set aside in toto, and
that such finding be communicated to the Missouri Board of Registration for the
Healing Arts, the National Practitioner Data Bank and all other persons or entities to

-8-

whom such adverse decision was communicated. Because we previously determined
that nothing in Madsen’s complaint removes it from the general rule that the exclusion
of a physician from practicing in a private hospital is a discretionary matter resting
with the managing authorities, there is no support for a declaratory judgment in this
regard. As such, we affirm the district court’s dismissal of Count VI.

As to Count VII, we must remember at what stage of the proceedings these
determinations are being made. “In reviewing a motion to dismiss, we construe the
complaint liberally, taking all factual allegations as true, and ‘will affirm only if it
appears beyond doubt that [the plaintiff] cannot prove any set of facts in support of
[the] claim which would entitle [him] to relief.'” Turner v. Holbrook, 278 F.3d 754,
757 (8th Cir. 2002) (quoting Sisley v. Leyendecker, 260 F.3d 849, 850 (8th Cir.
2001)). Further, “[a]t the pleading stage, ‘we “presum[e] that general allegations
embrace those specific facts that are necessary to support the claim.”‘” American
Canoe Ass’n, Inc. v. E.P.A., 289 F.3d 509, 512 (8th Cir. 2002) (quoting Bennett v.
Spear, 520 U.S. 154, 168 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). Given the legal standard at this stage in the proceedings, we find
no basis for the dismissal of Count VII. Madsen properly alleges each element of his
slander claim in his complaint. Cowan is wholly inapplicable in this regard and the
district court did not provide any explanation illuminating its conclusion that Cowan
provided the basis for its dismissal of Count VII.

The general rule that “‘the exclusion of a physician or surgeon from practicing
[in a private hospital] is a matter which rests in the discretion of the managing
authorities,'” Cowan, 392 S.W.2d at 308 (quoting Annotation 24 A.L.R.2d 850, 852),
would not dispose of a claim of slander such as that raised by Madsen in Count VII.
At the very least, we cannot state with certainty at this stage that Madsen is unable

-9-

to prove any set of facts that would entitle him to relief.3 Accordingly, we reverse
the district court’s dismissal of Count VII.

III. CONCLUSION

The district court properly dismissed Counts I, II, III, V, and VI of Madsen’s
complaint. We reverse the district court’s dismissal of Count VII and deem Count
IV dismissed with prejudice.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

3Defendants argue that the Health Care Quality Improvement Act, 42 U.S.C.
§ 11101 et seq., grants immunity from any civil liability in this case. However,
“HCQIA immunity is a question of law for the court to decide and may be resolved
whenever the record in a particular case becomes sufficiently developed.” Bryan v.
James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994). We have no
record to speak of on a motion to dismiss, thus any analysis in this regard is
premature.

-10-

Maheshwari v. Vista Hosp. Sys., Inc.

Filed 9/9/03 Maheshwari v. Vista Hospital Systems CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified
for pub l icat ion or ordered pub l ished , e xcept as spec if ied by ru le 977(b) . Th is op in ion has not been cert if ied for
pub l icat ion or ordered pub l ished for purposes of ru le 977 .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Plaintiff and Appellant,

B.D. MAHESHWARI,

v.

VISTA HOSPITAL SYSTEMS, INC. et al.,

Defendants and Respondents.

E031768

(Super.Ct.No. RIC296142)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.

Affirmed.

B.D. Maheshwari in pro. per. and Philip L. Merkel for Plaintiff and Appellant.

Horvitz & Levy, David M. Axelrad, and Tracy L. Turner; LaFollette, Johnson,

DeHaas, Fesler, Silberberg & Ames, and Robert C. Shephard for Defendants and

Respondents Vista Hospital Systems, Inc. et al.

Horvitz & Levy, David M. Axelrad and Tracy L. Turner; D’Antony, Poliquin & Doyle,

and David Tredway; LaFollette, Johnson, DeHaas, Fesler, Silberberg & Ames and Robert C.

Shephard for Defendants and Respondents Richard Rouhe and Terry L. Sanderfer.

1

Plaintiff and appellant B.D. Maheshwari, M.D. (plaintiff) appeals from a judgment

entered in favor of defendants and respondents (1) Vista Hospital Systems, Inc., dba Corona

Regional Medical Center (Vista), (2) Corona Regional Medical Center (the hospital), (3)

Marlene Woodworth, CEO of the hospital, (4) Jan Henderson, Supervisor of the hospital’s

intensive care unit, (5) Nancy Bakewell, Manager/Director of the hospital’s emergency

room, (6) Scott Gross, President and CEO of Primus Management, Inc., which managed the

hospital, (7) Terry L. Sanderfer, M.D., and (8) Richard Rouhe, M.D. We shall affirm the

judgment.

FACTUAL AND PROCEDURAL HISTORY

I. Factual History

Plaintiff is a staff internist and cardiologist at the hospital. At the time of trial, he

was the Chief of the Department of Medicine at the hospital, and headed the medical staff’s

bylaws committee.

On February 27, 1996, nurse Diane Walsh and plaintiff were working together in the

emergency room at the hospital. When plaintiff walked up to t he nurses’ station, Walsh

asked him whether he had brought any “candy and stuff” for the nurses that day. Plaintiff

responded, “I brought myself. I know your needs. I know you love it.” Nancy Bakewell,

Walsh’s supervisor and the nurse manager of the emergency room, overheard plaintiff’s

comment and watched Walsh’s reaction. Walsh appeared embarrassed and upset.

Later that day, Bakewell discussed the incident with Walsh. Walsh told Bakewell

that plaintiff’s comment embarrassed her and that “Dr. Mahe shwari is always making

statements like this when [I’m] in PCU and no one has been able to stop him.” Because

2

plaintiff’s comment had a sexual connotation and had embarrassed Walsh, Bakewell

concluded it was a violation of the hospital’s sexual harassment policy.

Bakewell prepared a written report about the incident, referred to in hospital

documents and throughout this proceeding as a “statement of concern.” Bakewell presented

the statement of concern to her immediate supervisor, Jan Henderson. Henderson told

Bakewell that the human resources department would need to investigate. Bakewell gave

the statement of concern to the human resources department, and it was then forwarded to

the hospital’s chief executive director, Marlene Woodworth.

At Woodworth’s direction, a human resources representative, Diane Cox,

interviewed Bakewell and Walsh. Both Bakewell and Walsh told Cox that they had

repeatedly heard sexually charged comments by plaintiff, and that they were bothered by the

comments. Bakewell al so gave the names of two other female employees who had

complained to Bakewell about plaintiff’s behavior. When Cox interviewed these two

employees, they confirmed that plaintiff frequently made comments containing sexual

innuendoes. For example, one female employee reported that plaintiff had told her, “You

probably want my body.” Cox memorialized these interviews in a written memorandum to

Woodworth. Cox did not have authority to interview plaintiff or recommend action against

him because medical staf f issues are handled by the medical executive committee

(executive committee). Nevertheless, in Cox’s memorandum, she requested that

Woodworth follow up on the statement of concern by discussing it with the Chief of Staff,

Dr. Gupta.

3

Woodworth and Dr. Gupta discussed the statement of concern and Cox’s interviews,

and decided that they should meet with plaintiff. On March 29, 1996, they showed the

statement of concern and the Cox memorandum to plaintiff. (Plaintiff, however, testified

that he was not shown the memorandum until later.) At that meeting, plaintiff denied that he

had made the comments that Bakewell, Walsh and the two other female employees had

attributed to him. Incongruously, however, he also remarked, “Well, Marlene, I’ve made

you blush too,” and reminded Woodworth of comments he had made in the past about her

clothing and jewelry. Although Woodworth had not been offended by the comments at the

time they were made, she was offended when plaintiff raised them at the meeting because

she be lieved plaintiff was trying to make her feel uncomfortable.

Woodworth told plaintiff that his remarks had offended Walsh and the other female

employees, and asked him to refrain from any such behavior in the future. She reminded

him that the employees are entitled to a harassment -free working environment and gave him

a copy of the hospital’s sexual harassment policy. No further action was planned, and

Woodworth and Dr. Gupta considered the matter concluded.

On March 30, 1996, using the letterhead of his law office (plaintiff has been a

lawyer since 1989), plaintiff wrote to Dr. Gupta and accused the nurses of retaliating

against him for complaining about mismanagement in their department. Plaintiff asked Dr.

Gupta to take up “this matter” with the executive committee.

Granting plaintiff’s request, Dr. Gupta called for a special meeting of the executive

committee on April 19, 1996. At the meeting, plaintiff spoke first and requested the

committee to conduct an investigation into the allegations against him. Then, Woodworth

4

related the contents of the statement of concern Bakewell had prepared concerning the

Walsh incident. Woodworth also mentioned that plaintiff had been the subject of similar

complaints in 1992, and recommended that any investigation by the committee include

those incidents as well. The executive committee voted to create an ad hoc committee to

interview the employees and report back to the executive committee.

The members of the ad hoc committee were Drs. Young, Rouhe, Sanderfer,

Plasencia and Silva. Dr. Silva, however, did not participate. The ad hoc committee

interviewed Bakewell, Walsh, Henderson, and Karen Voyer (one of the female employees

who had informed Cox about plaintiff’s inappropriate comments). The committee came to

a consensus that the allegations against plaintiff were credible. The ad hoc committee

reported its findings to the executive committee on June 19, 1996, but it did not

recommend any particular disciplinary action.

After some discussion, the executive committee decided that a letter of reprimand

could be warranted. Before making that decision, however, the committee wanted to hear

from plaintiff. Dr. Gupta invited plaintiff to address the executive committee on June 27,

1996, and provided one week’s notice of the meeting. Plaintiff appeared, but claimed that

he “[did] not remember what happened.” Plaintiff also demanded to see the ad hoc

committee’s documents before responding. The executive committee decided to

reconvene after giving plaintiff an opportunity to review the documents. Because the

executive committee did not want copies of the documents to leave the hospital, it told

plaintiff that he could review the documents in the medical staff office at his convenience.

5

Thereafter, in a letter to Dr. Gupta, plaintiff refused to appear for the rescheduled

meeting unless copies of the documents were sent to his office. Dr. Gupta refused

plaintiff’s demand, but reiterated that plaintiff could review the documents at the hospital.

Plaintiff neve r took advantage of the executive committee’s offer.

Plaintiff did, however, appear at the rescheduled executive committee meeting on

July 17, and received the documents at that time. Plaintiff reviewed the documents prior to

being interviewed by the executive committee. Plaintiff then gave his response to the

allegations — that the nursing staff was “out to get him” and he never made any inappropriate

comments. Thereafter, the executive committee discussed and voted on what action, if any,

to take. The members voted overwhelmingly to send plaintiff a warning letter. The vote

would have been unanimous, except that plaintiff’s son, who was a member of the executive

committee, abstained from voting.

The executive committee needed approval from the hospital’s governing board

before it could send the warning letter to plaintiff. Dr. Gupta and Woodworth presented the

case to the hospital’s governing board. The governing board approved the letter, and it was

sent to plaintiff on July 30, 1996. The letter stated the executive committee’s conclusion

that plaintiff had made offensive comments to hospital personnel and instructed plaintiff as

follows: “You must be more sensitive to what is offensive to other people, and cease

making these types of statements in the future.” Further offensive comments, the letter

warned, would require corrective action. The letter closed with an offer to assist plaintiff in

seeking counseling if necessary.

6

After receiving the letter, plaintiff demanded that all documents relating to the

investigation be sent to him, and that he be informed as to how each member of the ad hoc

committee voted. Plaintiff also demanded a judicial review committee (JRC) hearing,

“[e]ven if such a hearing is not normally provided for in the Medical Staff Bylaws.”

The executive committee discussed plaintiff’s demands at its next meeting. It made

the following findings: (1) plaintiff had been offered the opportunity to review all

documents relating to the investigation prior to the July 17 me eting but he declined to do

so; (2) plaintiff had the opportunity to review the documents at the July 17 meeting prior to

addressing the executive committee; (3) plaintiff had previously received copies of the

human resources documents which summarized the allegations against him; (4) the ad hoc

committee’s interview, discussions and minutes were part of peer review proceedings and,

as such, were protected from discovery under Evidence Code section 1157; and (5) a

written reprimand did not entitle plaintiff to a JRC hearing under the medical staff bylaws.

Plaintiff was informed of these findings in writing on September 3, 1996.

On October 5, 1996, the Vista board asked its Health Care Management Executive,

Scott Gross, to report on the executive committee’s investigation and course of action.

(The hospital is part of Vista’s hospital systems, which has its own governing board. Vista

has the right to ratify the executive committee’s action or require it to undertake further

proceedings.) Gross stated that the executive committee had found substantial evidence of

sexual harassment by plaintiff, but had decided to issue only a “weak” letter of reprimand.

The Vista board concluded that it had an obligation to protect hospital employees from

sexual harassment and decided to send its own, more stern, letter to plaintiff.

7

Vista sent its letter to plaintiff on November 18, 1996. The letter stated that the

Vista board had reviewed the employee complaints against plaintiff and was troubled by

plaintiff’s deni al of the allegations despite overwhelming evidence to the contrary. The

letter explained Vista’s zero tolerance policy on sexual harassment, and warned that, “Vista

has directed management to monitor the situation to assure that your harassment has ceased

. . . . If any further harassment is reported and verified . . . Vista will pursue any and all

rights, remedies and procedures available to it to assure that you are not permitted access to

the Medical Center.”

In response to Vista’s letter, plaintiff demanded that Vista send him the documents

upon which its reprimand was based. Vista responded that the hospital had already provided

him all the necessary documents.

Plaintiff has not received any further warnings or counseling about sexual

harassment, and no disciplinary action has been taken against him. Plaintiff has not lost or

been denied staff privileges at the hospital or any other hospital. Plaintiff has not disclosed

the executive committee’s findings or the two warning letters to any other hospital. As far

as plaintiff is aware, no one outside the hospital has ever seen the executive committee’s

and Vista’s warning letters, except in the course of this litigation.

II. Procedural History

On May 6, 1997, plaintiff filed suit against Vista, the hospital. Woodworth,

Henderson and Bakewell. He later identified Gross, Sanderfer and Rouhe as Doe

defendants. The operative complaint asserts numerous causes of action, including those at

8

issue on appeal — emotional distress, libel, slander per se, and violation of common law fair

procedure and Business and Professions Code section 805 et seq.

In support of his claims, plaintiff alleged that (1) the defendants slandered and

libeled him by making and republishing within the hospital, statements “accusing [him of]

sexually harass[ing] two nurse employees”; (2) these same accusations constitute extreme

and outrageous conduct and caused him severe emotional distress; and (3) the defendants

violated plaintiff’s common law right to fair procedure and t he Business and Professions

Code by implementing a “de facto” loss of privileges, i.e., warning him that future

misconduct might result in termination of staff privileges, without following common law

or the medical staff bylaws.

The defendants moved for summary adjudication on plaintiff’s causes of action for

defamation and emotional distress, invoking Civil Code section 47. Granting the motion in

part, the trial court dismissed both defamation claims against defendant Rouhe and the libel

claim against defendant Sanderfer.

By agreement of the parties, the trial was bifurcated. A bench trial was conducted on

the fair procedure and Business and Professions Code causes of action. On July 26, 2001,

the trial court ruled in defendants’ favor on the following grounds: (1) common law fair

procedure was not required for the executive committee and Vista letters because the

letters did not adversely affect plaintiff’s contract, property or economic rights; (2) the

hospital’s procedure was fair because plaintiff was given notice of the nature of the

complaints against him and an adequate opportunity to respond; (3) there was no evidence

of bias on the part of the ad hoc committee members or the executive committee; (4) in

9

light of plaintiff’s opportunity to review all pertinent documents in the hospital staff office

and at the July 17 executive committee meeting, the mere fact that he was not allowed to

remove the documents from the hospital does not amount to a violation of fair procedure;

(5) the medical staff bylaws did not require that the executive committee grant plaintiff’s

request for a JRC hearing; and (6) the executive committee’s investigation was conducted in

compliance with the bylaws.

After the bench trial, plaintiff’s remaining claims for emotional distress and

defamation were scheduled to go to a jury trial.

Through in limine motions, the defendants again asserted that the absolute privilege

provided by Civil Code section 47 was a defense to the remaining causes of action.

Additional lengthy hearings on the privilege issue followed and the parties stipulated that

the trial court could determine the applicability of the privilege based on the evidence that

had been submitted during the bench trial. The trial court granted judgment in favor of

defendants Rouhe, Sanderfer, Woodworth and Gross on the ground that the remaining

claims against these defendants were based on communications that were absolutely

privileged.

After the trial court’s ruling on the absolute privilege, the only claims left to be tried

before a jury were the defamation and emotional distress claims against Bakewell and

Henderson. Plaintiff stated that he would prove that Bakewell lied in the statement of

concern and in telling other nurses that plaintiff was being investigated for sexual

harassment. Plaintiff further contended that Henderson was liable for republishing the

statement of concern to her superiors at the hospital.

10

The jury trial commenced on January 17, 2002. At the conclusion of the plaintiff’s

case, the de fendants moved for nonsuit. The trial court granted nonsuit in favor of

Henderson because plaintiff failed to produce any evidence that she republished the

statement of concern. The court, however, concluded that the evidence against Bakewell

was “perhaps enough to get past the non-suit” and it would “wait and see how the jury

react[s] to it.” The trial ended on February 1, 2002, and the jury returned a 9 -3 defense

verdict.

On March 12, 2002, judgment was entered in favor of all defendants and notice o f

entry of judgment in the defendants’ favor was served on March 21. On appeal, plaintiff

does not challenge the nonsuit in favor of Henderson or the jury’s verdict in favor of

Bakewell. Plaintiff only challenges the bench trial decision on the fair procedure and

Business and Professions Code causes of actions, and the trial court’s ruling that the tort

claims against Woodworth, Gross, Sanderfer and Rouhe were barred as a matter of law by

the absolute privilege.

ANALYSIS

I. Plaintiff’s Complaint Is Not Barred

Defendants contend that plaintiff’s complaint is barred as a matter of law because

plaintiff has failed to exhaust his judicial remedies. In support of their contention,

defendants cite to Westlake Community Hospital v. Superior Court.1

1 Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 (Westlake).

11

Under Westlake, a physician seeking to challenge a private hospital’s decision

affecting his or her staff privileges must first exhaust any internal remedies provided by the

hospital. Exhaustion is required even though the physician seeks only damages and not

reinstatement of privileges.2 If the internal challenge is unsuccessful, the physician then

must seek to overturn the decision through a mandamus proceeding pursuant to Code of

Civil Procedure section 1094.5 (section 1094.5). Only if the decision is set aside in a

mandamus proceeding may the physician bring a civil tort action.3 Unless and until it is set

aside, the adverse ruling at the internal level “has the effect of establishing the propriety of

the hospital’s action” and bars any claim based on the pr emise the action was unjustified.4

Moreover, the requirement of filing a mandamus proceeding is independent of the

internal exhaustion requirement. Thus, even if the physician exhausts the hospital’s internal

remedies, he or she cannot bring a civil action without first prevailing on a mandamus

petition.5 The mandamus requirement applies to contract as well as tort claims 6 and applies

not only where a physician’s privileges are completely terminated, but also to any lesser

restrictions on privileges.7

2 Westlake, supra , 17 Cal.3d 465, 475, 476-477.

3 Westlake, supra, 17 Cal.3d 465, 475, 479; DeVaughn Peace, M.D., Inc. v. St.

Francis Medical Center (1994) 28 Cal.App.4th 454, 460.
4 Westlake, supra, 17 Cal.3d 465, 484; accord, Knickerbocker v. City of Stockton

(1988) 199 Cal.App.3d 235, 243.
5 Westlake, supra, 17 Cal.3d 465, 484.

6 Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1728.

7 McNair v. Pasadena Hospital Assn., Ltd. (1980) 111 Cal.App.3d 841, 844-846.

12

In this case, we need not determine whether the hospital’s or Vista’s actions qualify

as a restriction of plaintiff’s privileges as a physician: Even if the Westlake doctrine

applies, plaintiff’s complaint is not barred, because it could be deemed to be a mandamus

petition. In a footnote in Westlake, the Supreme Court recognized that if a “plaintiff’s

complaint could conceivably be found sufficient to warrant treating the complaint as a

petition for writ of mandate [cf. Boren v. State Personnel Board . . .],” the court could

consider the complaint as mandamus petition.8 In Boren, the Supreme Court stated: “[I]t is

unimportant that plaintiff’s pleading was not in form a petition for mandamus or certiorari.

All that is required is that plaintiff state facts entitling him to some type of relief, and if a

cause of action for mandamus or certiorari has been stated, the general demurrer should

have been overruled. [Citations.]”9

Here, the ninth cause of action for violation of common law fair procedure and tenth

cause of action for violation of Business and Professions Code section 805, as alleged in

the operative complaint, can be deemed to be a mandamus petition. First, plaintiff prayed

for mandamus -type relief in these causes of action, including that defendants be required to

provide fair procedures and to expunge his records. Second, the parties in this case

consented to, and the trial court did, try the fair procedure and Business and Professions

Code claims before the tort causes of action as a bench t rial. Therefore, plaintiff’s

complaint is not barred under the Westlake doctrine.

8 Westlake, supra , 17 Cal.3d 465, 485, footnote 10, citing Boren v. State

Personnel Board (1951) 37 Cal.2d 634, 638 ( Boren).
9 Boren, supra , 37 Cal.2d 634, 638.

13

II. Defendants Did Not Violate Common Law Fair Procedure or Business and Professions

Code Section 805 et seq.

Plaintiff contends that the trial court erred in finding the hospital disciplinary

process did not violate common law fair procedure or Business and Professions Code

section 805 et seq. (section 805 et seq.). Specifically, plaintiff contends that: (1) the

bylaws and fair procedure required a JRC hearing; (2) he should have been allowed to

address the ad hoc committee separate from the executive committee; (3) he had a right to

cross-examine the nurses who had complained of sexual harassment; (4) he should have

been provided with copies of the executive committee’s investigation file rather than

allowed to review them in the hospital only; and (5) the ad hoc committee was biased

against him.

A. Standard of Review

Whether a plaintiff’s right to fair procedure was violated is a question of law

reviewed de novo by this court.10 However, to the extent that we must review the factual

determinations made by the trial court in upholding the hospital’s actions, we must apply the

substantial evidence standard, resolving all evidentiary conflicts in favor of the respondents

and indulging all reasonable inferences in support of the judgment.11

B. Strict “Common Law Fair Procedure” Requirements Do Not Apply to

Proceedings Which Do Not Substantially Affect a Fundamental Vested Right

10 Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1442-1443

(Rosenblit).

14

Fair procedure rules prohibit private associations from acting in any arbitrary

manner, and require that their actions be substantively rational and procedurally fair.12 Fair

procedure is required when a medical staff decision of a hospital “‘substantially affects a

fundamental vested right,’” i.e., a physician’s right to pursue a livelihood.13

In a recent decision, Potvin v. Metropolitan Life Insurance Co.,14 the California

Supreme Court examined the limitation on common law fair procedure rights. In Potvin, a

physician challenged MetLife’s decision to remove him from its provider networks.15 The

court found that an insurer’s relationship with its physician providers affects a public

interest.16 Nonetheless, it held that an insurer does not have to comply with the common

law right of fair procedure unless its decision “significantly impairs the ability of an

ordinary, competent physician to practice medicine or a medical specialty in a particular

geographic area, thereby affecting an important, substantial economic interest.”17

Potvin’s holding is consistent with prior case law holdings that a right to fair

procedure applies to cases involving substantial impairment of a physician’s practice

[footnote continued from previous page]
11 In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Kuhn v. Department of

General Services (1994) 22 Cal.App.4th 1627, 1632-1633.
12 Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550

(Pinsker II).
13 Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823 ( Anton).

14 Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060 ( Potvin).

15 Potvin, supra , 22 Cal.4th 1060, 1064-1066.

16 Potvin, supra , 22 Cal.4th 1060, 1070-1071 .

17 Potvin, supra , 22 Cal.4th 1060, 1071, italics added.

15

resulting from a hospital’s denial, termination or suspension of staff privileges.18 There is

no legal support, however, for plaintiff’s argument that the right to fair procedure should be

expanded to include private warning letters to a physician regarding his misconduct.

Nevertheless, in his opening brief, plaintiff relies on Salkin v. California Dental

Association, to support his fair procedure argument.19 In Salkin, an appellate court applied

the fair procedure doctrine to state and national dental associations’ public censure of the

plaintiff for malpractice.20 The court found that the censure “‘imminently threatened’” the

plaintiff’s dental practice and “‘transcend[ed] the organization itself because it convey[ed]

to the community that the disciplined member was found lacking by his peers.’”21

Salkin is readily distinguishable from the case at hand. First, Salkin involved a

public censure. Here, the letters sent to plaintiff were private and never made public,

except in the context of this lawsuit. Hence, there was never any fear that the public was

made aware of the disciplinary letters. Moreover, plaintiff admitted that, in the five -year

period between his receipt of the letters and his testimony at trial, no one outside of the

hospital had ever seen the letters or learned of their contents, except as a result of his

lawsuit. Second, this case is distinguishable from Salkin because the dentist in Salkin was

censured for his incompetence (malpractice) — a fact that would definitely affect whether a

18 Anton, supra , 19 Cal.3d 802, 823; Cipriotti v. Board of Directors (1983) 147

Cal.App.3d 144; Tiholiz v. Northridge Hospital Foundation (1984) 151 Cal.App.3d 1197,
1202.
19 Salkin v. California Dental Assn. (1986) 176 Cal.App.3d 1118 ( Salkin).

20 Salkin, supra , 176 Cal.App.3d 1118, 1125.

21 Salkin, supra , 176 Cal.App.3d 1118, 1124, 1125.

16

patient would want to be treated by the dentist. Here, the disciplinary letters concerned

social behavior, not plaintiff’s competency to practice medicine. A patient may find

personality characteristics unimportant to a decision whether to be treated by a doctor who

is technically fully competent. In fact, plaintiff did not present any evidence that he lost a

single patient as a result of the hospital’s internal disciplinary action. Therefore, we find

Salkin to be inapplicable to this case.

In sum, there was no evidence that the disciplinary letter “significantly impair[ed]”

plaintiff’s ability to practice medicine, “thereby affecting an important, substantial

economic interest.”22 The full panoply of common law rights to fair procedure was not

required.

C. The Hospital’s Disciplinary Process Did Not Violate Common Law Fair

Procedure

Even if the hospital should have afforded fair procedure before sending the warning

letters to plaintiff, defendants provided fair procedure to plaintiff in this case.

“The common law requirement of a fair procedure does not compel formal

proceedings with all of the embellishments of a court trial [citation], nor adherence to a

single mode of process. It may be satisfied by any one of a variety of procedures which

afford a fair opportunity for [the subject] to present his position. . . . the associations

themselves should retain the initial and primary responsibility for devising a method which

provides [the subject] with adequate notice of the ‘charges’ against him and a reasonable

22 Potvin, supra , 22 Cal.4th 1060, 1071, italics added.

17

opportunity to respond.”23 The hospital’s procedure is reviewed under the abuse of

discretion standard.24

In this case, plaintiff had notice of the sexual harassment allegations against him

before it was reported to the executive committee. In fact, Woodworth and Dr. Gupta were

willing to conclude the investigation with a simple verbal warning to plaintiff. However, at

the request of plaintiff, the executive committee conducted an investigation into the sexual

harassment charges.

When the executive committee conducted its investigation, plaintiff had ample

opportunity to be heard. First, plaintiff presented his version of the events to the executive

committee on April 19, 1996, when he first requested that the committee conduct an

investigation into the sexual harassment allegations. Plaintiff then had a second opportunity

to present his side of the story after the ad hoc committee interviewed the nurses. When

plaintiff claimed that he had forgotten what the nurses said about him, the executive

committee gave him the option of reviewing the investigation file in the medical staff

office of the hospital. Because plaintiff did not take advantage of that offer, the executive

committee allowed plaintiff to review the documents at the next meeting and gave him time

to look them over before giving his response. Then the committee listened to what plaintiff

had to say.

23 Pinsker II, supra , 12 Cal.3d 541, 555; see also Anton, supra 19 Cal.App.3d 802,

830 [fair procedure requires adequate notice of the charges and a fair opportunity to
respond].)
24 Pinsker II, supra , 12 Cal.3d 541, 556.

18

This procedure afforded plaintiff was more than adequate to satisfy fair procedure.

Nevertheless, plaintiff claims that defendants failed to abide by common law fair procedure

because: (1) plaintiff was entitled to, but not given, a JRC hearing; (2) plaintiff was not

permitted to address the ad hoc committee; (3) plaintiff was not permitted to cross-

examine the nurses; (4) plaintiff was unable to remove the investigatory documents from

the hospital; and (5) the ad hoc committee was biased against plaintiff. We shall address

each of plaintiff’s arguments.

1. Plaintiff Was Not Entitled to a Judicial Review Committee Hearing

Plaintiff contends that he was entitled to a JRC hearing under the medical staff

bylaws. We disagree.

Section 13(a)(iii) of the bylaws sets forth the disciplinary actions for which a

physician is entitled to a JRC hearing. It states:

“(iii) GROUNDS FOR HEARING

“Except as otherwise specified in these bylaws, any one or more of the following

actions or recommended actions shall be deemed actual or potential adverse action and

constitute grounds for a hearing in accordance with Article III, Section 13:

“(a)

denial of medical staff membership;

“(b) denial of requested advancement in staff membership status, or category

cause of reason;

“(c) denial of medical staff reappointment;

“(d)

demotion to lower medical staff category or membership status due to

medical disciplinary cause of reason;

19

“(e)

suspension of staff membership;

“(f)

revocation of medi cal staff membership;

“(g)

denial of requested clinical privileges;

“(h)

involuntary reduction of current clinical privileges;

“(i)

suspension of clinical privileges;

“(j)

termination of all clinical privileges; or

“(k)

termination of temporary privileges for medical disciplinary cause or

reason[;]

“(l)

involuntary imposition of significant consultation or monitoring

requirements (excluding monitoring incidental to provisional status and Section 6).”

Although section 13(a)(iii) lists eleven disciplinary actions for which a physician is

entitled to a JRC hearing, warning letters that impose no restrictions are not on the list.

Nevertheless, plaintiff contends that Vista’s warning that it had “directed management to

monitor the situation to assure that [his] harassment has ceased” is a “monitoring

requirement[]” for which he has a right to a hearing under section 13(a)(iii)(l). We agree

with the trial court and reject this strained interpretation of the bylaws.

As stated above, section 13(a)(iii)(l) provides a right to a JRC hearing for the

“involuntary imposition of significant consultation or monitoring requirements.” The clear

language of this section clearly indicates that there must be an “imposition” of significant

monitoring requirements. Plaintiff argues that Vista met this requirement when it sent

plaintiff the second warning letter. The letter stated that “Vista has directed management to

monitor the situation to assure that your harassment has ceased . . . . If any further

20

harassment is reported and verified . . . Vista will pursue any and all rights, remedies and

procedures available to it to assure you are not permitted access to the Medical Center.”

(Italics added.) Seizing on the word “monitor,” plaintiff argues that this letter satisfies the

monitoring requirement in the bylaws. Plaintiff, however, fails to provide what significant

monitoring requirements were imposed on plaintiff by the Vista letter. A plain reading of

the letter only shows that management would be “keeping an eye” on plaintiff to ensure that

the sexual harassment did not continue. This is not what is required under section

13(a)(iii)(l).

Moreover, plaintiff contends that he was entitled to a JRC hearing under section

11(d) and (e) of the bylaws. Plaintiff claims that “[t]he discussion of these sections was

clouded in the trial court because of an obvious typographical error in the Bylaws whereby a

section was misnumbered.” We disagree.

Section 11(d) of the bylaws, entitled “medical executive committee action,”

describes the actions which the executive committee may take once it concludes an

investigation — ranging from serious punishment, such as probation, monitoring, suspension

or revocation or privileges, reduction of membership status, suspension or revocation of

medical staff membership, to less severe punishments, such as letters of admonition,

censure, reprimand or warning.

21

Section 11(e)(i) of the bylaws, entitled “subsequent action,” states: “If corrective

action as set forth in Section 13 d .[25] is recommended by the Medical Executive

Committee, that recommendation shall be transmitted to the Governing Board.” (Italics

added.) Section 11(e)(ii) then states: “The Governing Board shall give great weight to

Medical Executive Committee recommendations and shall not act in an arbitrary or

capricious manner in deciding whether to adopt the committee’s recommendation as a final

recommendation unless the member requests a hearing, in which case the final decision

shall be determined as set forth in Article III, Section 13.” Article III, Section 13 entitled

the member to have a JRC hearing.

In the trial court, plaintiff argued that the “13 d.” referenced in section 11(e)(i)

should be read as “11.d” instead. Plaintiff argued that “[t]his is commonsensical because

Section 11 is entitled ‘Corrective Actions’ and Section 11 d. lists the corrective actions the

[executive committee] may take. Section 13 d., entitled ‘Appeal,’ concerns the procedures

for appealing a JRC hearing panel decision to the [hospital] Governing Board and to the

Vista Board. Section 13 d. has no listing of ‘corrective actions.’” Plaintiff, therefore,

argues that with this “correction,” section 11(e)(ii) gives him a right to a JRC hearing

before the hospital may undertake any of the responses listed in section 11(d), including the

warning letters at issue in this case.

We find plaintiff’s argument to be pure speculation. Plaintiff does not and cannot

cite to any evidence that there was a typographical error in the bylaws. Moreover,

25 Section 13(d) of the bylaws, entitled “appeal,” sets forth procedures for appealing

[footnote continued on next page]

22

plaintiff’s interpretation of section 11(e) directly contradicts section 13(a)(iii)’s express

limitation on the right to a JRC hearing to certain types of corrective action, as stated

above. It is, therefore, in the words of the trial court, “nonsensical and unreasonable.”

Nevertheless, plaintiff argues that he “bolstered his argument by showing that the

Medical Staff Bylaws were amended in 1999.” The amendment, however, does not support

plaintiff’s argument. In 1999, the language in section 11(e)(ii) that “the final decision shall

be determined as set forth in Article III, Section 13” was changed to provide that, “If the

member is entitled to and requests a hearing, the procedure and final decision shall be

determined as set forth in Article VIII.” Plaintiff contends that the added language, “if the

member is entitled to,” would have been unnecessary unless the pre-1999 section 11

provided the right to a hearing for all disciplinary actions. Plaintiff, however, ignores the

possibility that the bylaws we re amended to clarify, rather than change, their original

meaning. As stated by the trial court, “[w]ithout evidence that the intent and purpose behind

the new by-laws was to change, as opposed to merely clarify, the prior by-laws, the 1999

by-laws, shed no light on the interpretation of the 1994 by-laws.” Also, because the new

language refers to Article III, the meaning of the amendment cannot be determined without

reviewing Article VIII — which is not included in the record on appeal. Furthermore, what is

patently absent from the amendments to the bylaws in 1999 is a “correction” to the bylaws

as plaintiff would like it to read — changing section “13 d” to section “11 d” in section

[footnote continued from previous page]
a JRC hearing panel decision.

23

11(e)(i) of the bylaws. Had the intent of the amendment been to change the bylaws to

correct the typographical error — the error should have been corrected. It was not.

We also note that, even if we were to accept plaintiff’s unsupported “correction” of

section 11(e)(i), his argument fails. Section 11(e)(ii) states that if a physician requests a

hearing, the final decision shall be determined as set forth in Article III, Section 13. This

reference incorporates section 13, in its entirety, which includes the limitation set forth in

section 13(a)(iii) on the types of action (excluding warning letters) that give rise to a right

to a JRC hearing.

Therefore, we hold that the trial court properly rejected plaintiff’s claim that he was

entitled to a JRC hearing.

2. Fair Procedure Did Not Require that Plaintiff Be Permitted to Address the Ad

Hoc Committee Established by the Executive Committee

Plaintiff presented his version of the events to the executive committee on two

separate occasions. Plaintiff, however, claims that he had a right to separately address the

ad hoc committee, which consisted of four executive committee members.

In support of his contention, plaintiff relies on section 11(c) of the bylaws, which

provides that a physician shall be “notified that an investigation is being conducted and shall

be given an opportunity to provide information in a manner and upon such terms as the

investigating body deems appropriate.” Plaintiff contends that the ad hoc committee was

the “investigating body” and that section 11(c) therefore required that plaintiff be invited to

provide information to the ad hoc committee, rather than to the executive committee.

Plaintiff’s argument fails.

24

The executive committee delegated the task of interviewing the nurses to the ad hoc

committee. The executive committee, however, reserved the opportunity to hear plaintiff’s

response and decide what, if any, action should be taken. Therefore, the executive

committee remained the “investigative body.” Moreover, the executive committee’s

delegation of a discrete task to the ad hoc committee was consistent with section 11(c),

which gives the executive committee discretion to “conduct the investigation itself, or [to]

assign the task to an appropriate medical staff officer, medical staff department, or standing

or ad hoc committee of the me dical staff.”

Plaintiff’s contention is also unsupported by the law on fair procedure. Fair

procedure requires that the physician be given an opportunity to address the decisionmaker,

in this case, the executive committee.26 In Marmion, a medical education subcommittee

had discussed performance issues with the plaintiff, but the plaintiff claimed that he should

have been invited to address the entire medical education committee.27 The court rejected

the plaintiff’s argument because it found that the ultimate decisionmaker, the director of

medical education, was on the subcommittee and had listened to plaintiff’s response.28

“The hearing before the [subcommittee] provided [the plaintiff] a fair and full opportunity to

respond to the charges in the presence of . . . the final decision-maker.”29 Similarly, in this

26 Marmion v. Mercy Hospital & Medical Center (1983) 145 Cal.App.3d 72, 92-93

(Marmion).
27 Marmion, supra , 145 Cal.App.3d 72, 92-93.

28 Marmion, supra , 145 Cal.App.3d 72, 93.

29 Marmion, supra , 145 Cal.App.3d 72, 93.

25

case, plaintiff gave his response to the allegations to the decisionmaking body — the

executive committee. This was sufficient.

Plaintiff also argues that the ad hoc committee’s report took on s pecial significance

because the executive committee and governing boards relied on it. Plaintiff is correct that

the executive committee relied on the ad hoc committee’s summary of the employee

interviews — the ad hoc committee was asked to interview the nurses so that the entire

executive committee would not have to do so. The ultimate decision to send the warning

letter, however, was made only after the full executive committee heard plaintiff’s

response.

Therefore, we hold that plaintiff’s lack of opportunity to address the ad hoc

committee did not violate fair procedure.

3. Plaintiff Did Not Have a Right to Confront His Accusers

Plaintiff contends that he should have been allowed to cross-examine the nurses who

accused him of sexual harassment. In support of his contention, plaintiff relies on

Hackethal v. California Medical Association.30 Plaintiff’s reliance on Hackethal is

misplaced.

Hackethal addressed fair procedure in the context of formal charges brought before

the California Medical Association (CMA) relating to a physician’s competence to practice

medicine, charges which ultimately resulted in the physician’s expulsion from the CMA. 31

The formal nature of the charges against the physician and his resulting expulsion from the

30 Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435 (Hackethal).

26

state medical association required that the physician be allowed to cross-examine his

accusers.32

This case is distinguishable. Here, the executive committee’s investigation was

prompted by plaintiff’s request, rather than formal charges, and the hospital’s privat e

reprimands had no effect on plaintiff’s ability to practice medicine. Had his ability to

practice medicine been challenged, under the bylaws, plaintiff would have had the right to

challenge termination of his privileges in a formal JRC hearing, which would have included

cross-examination of witnesses. However, in this case, neither a formal hearing nor cross-

examination of witnesses were warranted for written warnings which did not impose any

limitation on plaintiff’s staff privileges.

4. Plaintiff Was Given Access to Pertinent Documents

Plaintiff contends that fair procedure was violated because he was not allowed to

make copies of the ad hoc committee’s investigatory file and take them out of the hospital

to his attorney’s office. We disagree.

Plaintiff was informed that he could review the investigatory file in its entirety in the

medical staff office at his convenience. The hospital wanted to avoid circulation of the

confidential material in the investigatory file outside the hospital. Plaint iff and his attorney

could have reviewed the investigatory file, but simply chose not to.

[footnote continued from previous page]
31 Hackethal, supra , 138 Cal.App.3d 435,438-440.

32 Hackethal, supra , 138 Cal.App.3d 435,444.

27

Plaintiff relies on Rosenblit, however, to support his contention that denying

plaintiff copies of his file violated fair procedure. In Rosenblit, a hospital terminated the

physician’s staff privileges based on its review of his medical decisions as reported in 30

medical charts.33 The court held that the hospital violated fair procedure when it denied the

physician copies of the charts so that he could have them reviewed by his expert witnesses

in preparation for his hearing.34

Rosenblit is distinguishable. First, Rosenblit involved termination of staff

privileges, which requires a higher standard of fair procedure.35 This case involved private

warning letters which did not affect plaintiff’s staff privileges. Second, the physician’s need

to have copies of the medical charts in Rosenblit was critical to his ability to defend

himself because of the technical and medical complexity of the issues involved. Here, the

issues were not numerous or complex. The witnesses were few; their statements were

straightforward. No expertise or lengthy review was necessary to understand the issues.

Plaintiff has indicated no manner in which his ability to prepare was affected or impaired.

In sum, plaintiff’s opportunity to review the investigatory file in the medical staff

office of the hospital, at plaintiff’s convenience, afforded plaintiff fair procedure.

5. The Ad Hoc Committee Was Not Biased Against Plaintiff

33 Rosenblit, supra , 231 Cal.App.3d 1438.

34 Rosenblit, supra , 231 Cal.App.3d 1446-1447 .

35 Hackethal, supra , 138 Cal.App.3d 435, 442 [fair procedure requirements vary

according to the action contemplated and its effects on the individual].

28

Plaintiff contends that the members of the ad hoc committee were biased against

him. Because this is a factual questions, the substantial evidence standard applies. We must

resolve all evidentiary conflicts and indulge all reasonable inferences in support of the

judgment.36

Plaintiff has admitted that he did not have any evidence to suggest that Drs. Rouhe,

Plasencia or Young were biased against him. As to Dr. Sanderfer, plaintiff’s only

contention is that in the course of the investigation, Dr. Sanderfer reported that he had

witnessed plaintiff make inappropriate comments to Sanderfer’s wife, who was a nurse at

the hospital at the time.

Substantial evidence supports the trial court’s conclusion that Dr. Sanderfer’s

observation of plaintiff’s inappropriate conduct does not invalidate the ad hoc committee’s

investigation or the executive committee’s warning letter. Dr. Sanderfer explained that

plaintiff’s comments never bothered his wife, and that “[t]hey certainly didn’t offend or

threaten [Dr. Sanderfer] either. [Dr. Sanderfer] felt more embarrassed for [plaintiff].”

Moreover, notwithstanding plaintiff’s comments, Dr. Sanderfer considered plaintiff a

positive acquaintance. Dr. Sanderfer also testified that he could be fair and impartial, he did

not pre-judge whether plaintiff had made the statements alleged in the statement of concern

and Human Resources interview, and he would have disqualified himself if he believed he

was biased.

36 In re Marriage of Mix, supra , 14 Cal.3d 604, 614; Kuhn v. Department of

General Services, supra , 22 Cal.App.4th 1627, 1632-1633.

29

Nevertheless, plaintiff relies on Applebaum v. Board of Directors37 in suppo rt of

his argument that Dr. Sanderfer’s participation in the investigation deprived him of fair

procedure. Plaintiff, however, misconstrues the holding of Applebaum. Plaintiff contends

that Applebaum “establishes that even if any individual cannot prove actual bias, the

overlapping of accusatory, investigative, and adjudicative functions results in the lack of

impartiality in the fact-finding process.” Therefore, plaintiff claims that, because Dr.

Sanderfer served on both the ad hoc committee and the exe cutive committee, plaintiff’s fair

procedure rights were violated. Applebaum, however, does not contain the holding

espoused by plaintiff. Rather, Applebaum held that overlapping functions violated fair

procedure “given the circumstances” of that case.38 The circumstances in Applebaum are

different from the circumstances in this case.

In Applebaum, the court found fair procedure lacking because a committee

investigating a physician’s incompetence included the complaining physician who had

prompted the i nvestigation.39 The court was particularly troubled because the complaining

physician was a specialist in the relevant field to whom the other committee members were

likely to defer.40 In this case, the allegations against plaintiff came from the nurses — not

anyone on the ad hoc or executive committee. Dr. Sanderfer merely offered a personal

observation in the course of discussing the nurses’ complaints. Moreover, Dr. Sanderfer

37 Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648 ( Applebaum) .

38 App lebaum, supra , 104 Cal.App.3d 648, 660.

39 Applebaum, supra , 104 Cal.App.3d 648, 659-660 .

40 Applebaum, supra , 104 Cal.App.3d 648, 660.

30

was not a specialist in sexual harassment issues to whom the other members were likely to

defer. Furthermore, in light of the evidence from Bakewell, Walsh and Voyer that plaintiff

had made sexually suggestive comments in the hospital, there is no reason to conclude that

the other members of the ad hoc committee would have discounted the nurses’ complaints

had Dr. Sanderfer not been on the committee.

Therefore, the trial court’s finding that the ad hoc committee was not biased against

plaintiff is supported by substantial evidence.

D. The Medical Executive Committee Proceedings Did Not Violate the Business

and Professions Code

Plaintiff bases his cause of action under the Business and Professions Code on

section 809.6, subdivision (a), which provides that, “The parties are bound by any additional

notice and hearing requirements” provided in medical staff bylaws. In this case, because

plaintiff has failed to establish a violation of the bylaws as discussed above, he has failed to

establish a violation of section 809.6.

Moreover, section 809.6 is not applicable to this case. Section 809.6 is part of a

statutory scheme governing notice and hearing procedures for actions which require a

report under Business and Professions Code section 805.41 A section 805 report is

required only where a physician is disciplined for a “medical disciplinary cause or reason,”

defined as “that aspect of a licentiate’s competence or professional conduct that is

41 See Business and Professions Code sections 809.1 -809.9.

31

reasonably likely to be detrimental to patient safety or to the delivery of patient care.”42

Also, like the common law right to fair procedure, a section 805 report is only required if

staff privileges are terminated or restricted.43 In this case, because plaintiff was

admonished to avoid sexually harassing employees rather for than creating a risk to patients,

and because his staff privileges were never restricted, the hospital was not required to

submit a section 805 report. Therefore, section 809.6 does not apply.

III. Defendants’ Statements Are Protected Under Civil Code Section 47

Plaintiff contends that the trial court erred in ruling that the absolute privilege under

Civil Code section 47 (section 47), subdivision (b) bars plaintiff’s claims against Drs.

Rouhe, Sanderfer, Woodworth and Gross. We disagree.

A. Standard of Review

“Interpretation of section 47, subdivision (b) is a pure question of law which we

review independently. [Citations.]”44

B. Defendants’ Statements Are Privileged

Section 47, subdivision (b) provides that communications made “(4) in the initiation

or course of any . . . proceeding authorized by law and reviewable [by writ of mandate]

42 Business and Professions Code section 805, subdivision (a)(1)(D)(6).

43 See Business and Professions Code section 805, subdivisions (b)(1) – (b)(3) [a

section 805 report is only required for denial or rejection of an application for staff
privileges; termination or revocation of staff privileges; or restrictions on staff privileges,
membership or employment for 30 days or more than any 12-month period].
44 Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1139-1140.

32

pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of

Civil Procedure” are absolutely privileged.

Peer review organizations such as the executive committee are authorized — and

required –by law to oversee hospital staff physicians.45 Their decisions are subject to

review by writ of mandate under either section 1094.5 or section 1085 of the Code of Civil

Procedure. If fair procedure is required, the executive committee’s decisions can be

revi ewed under Code of Civil Procedure section 1094.5.46 Otherwise, the executive

committee’s decisions can be reviewed under section 1085.47 Therefore, section 47,

subdivision (b) protects all communications made to initiate action by the executive

committee or made in the course of the executive committee’s proceedings.

The applicability of section 47, subdivision (b) to executive committee

communications is further supported by the statute’s legislative history. Subdivision (b)

was enacted specifically to overturn a Supreme Court decision in Hackethal v.

Weissbein,48 which held that communications to a private medical peer review organization

45 Business and Professions Code section 2282.

46 See Code of Civil Procedure section 1094.5; Anton, supra , 19 Cal.3d 802, 815.

47 See Code of Civil Procedure section 1085; Anton, supra , 19 Cal.3d 802, 815,

footnote 11; Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195 [a city
employee was entitled to writ review under section 1085 of an “improvement needed”
evaluation rating even though a hearing was not required by law]; McGill v. Regents of
University of California (1996) 44 Cal.App.4th 1776, 1785 [“‘[O]rdinary mandate [under
section 1086] is used to review adjudicatory actions or decisions when the agency was not
required to hold an evidentiary hearing’”].
48 Hackethal v. Weissbein (1979) 24 Cal.3d 55.

33

are not privileged.49 “The lesson conveyed by [the enactment of subdivision (b)] appears

clear. By its immediate, unanimous response to Hackethal v. Weissbein [citation], the

Legislature demonstrated a strong conviction that the absolute privilege afforded by section

47 should not be confined narrowly only to . . . peer review proceedings conducted by

governmental agencies, but rather should apply also to . . . analogous peer review

proceedings conducted by private entities because the purposes served by the privilege

apply equally to such proceedings.”50

Plaintiff cites Pettus v. Cole51 and Cuenca v. Safeway San Francisco Employees

Fed. Credit Union52 to support his argument that section 47, subdivision (b) does not apply

to this case. These cases held that an adjudicatory proceeding of a private company is not

“judicial” or “official” under subdivision (b).53 54 Neither of these cases, however,

addressed subdivision (b) clause (4). Hence, they are inapplicable to this case.

Moreover, plaintiff argues that there was no “proceeding” or “trial” because he was

denied a JRC hearing. “Proceeding,” however, as used in section 47 has a broad meaning

and includes any “transaction[].”55 Moreover, in applying section 47, courts have focused

less on what type of proceeding is actually held and more on the authority of the body. For

49 See Moore v. Conliffe (1994) 7 Cal.4th 634, 652.

50 Moore v. Conliffe, supra , 7 Cal.4th 634, 653, italics omitted.

51 Pettus v. Cole (1996) 49 Cal.App.4th 402 ( Pettus).

52 Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180

Cal.App.3d 985 (Cuenca ).
53 Pettus, supra , 49 Cal.App.4th 402, 436-438 .

54 Cuenca , supra , 180 Cal.App.3d 985, 993-994.

55 Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865 ( Ascherman).

34

example, in construing the scope of the “official proceeding” privilege under what is now

subdivision (b) clause (3), Ascherman held that the application of the privilege to

communications to an administrative body depends on “(1) whether the administrative body

is vested with discretion based upon investigation and consideration of evidentiary facts, (2)

whether it is entitled to hold hearings and decide the issue by the application of rules of law

to the ascertained facts and, more importantly (3) whether its power affects the personal or

property rights of private persons.”56 Focusing on the authority of the body, rather than the

type of proceeding ultimately held, encourages communication and thereby ensures that the

purpose of the privilege is fulfilled.57

In this case, the executive committee has the authority to conduct formal hearings

and to make decisions which substantially affect a physician’s economic interests.

Therefore, the privilege should apply to its communications regardless of the form its

action takes.58

Plaintiff argues that defendants should not be allowed to argue, on the one hand, that

warning letters do not trigger a right to a JRC hearing, and on the other hand, that the

executive committee proceeding is covered by subdivision (b). Plaintiff’s argument is

based on the erroneous premise that the subdivision (b) privilege applies only to

56 Ascherman, supra , 23 Cal.App.3d 861, 866.

57 Ascherman, supra , 23 Cal.App.3d 861, 866.

58 See Long v. Pinto (1981) 126 Cal.App.3d 946, 949 [an unsolicited letter to a

hospital’s board of directors was absolutely privileged because it was intended to prompt
action]; Brody v. Montalbano (1978) 87 Cal.App.3d 725, 732 [a letter to a school board
was privileged regardless of whether it led to an “official proceeding”].

35

proceedings which are subject to review under Code of Civil Procedure section 1094.5,

i.e., proceedings which are required by law. However, as discussed above, subdivision (b)

expressly includes proceedings subject to review under Code of Civil Procedure section

1085, which includes the voluntary, quasi-judicial proceedings in this case.

Having established that section 47, subdivision (b) applies to executive committee

proceedings, we now turn to the specifics of plaintiff’s defamation and emotional distress

claims against Woodworth, Gross, Sanderfer and Rouhe.

Plaintiff’s emotional distress and defamation claims against Woodworth are based

on her communications with the Chief of Staff, Dr. Gupta, concerning the nurses’

complaints, and her subsequent comments to the executive committee in the course of

investigation plaintiff’s conduct. Woodworth informed Dr. Gupta about the nurses’

complaints because it was Dr. Gupta’s responsibility to decide whether the allegations

required executive committee action or an investigation. The medical staff bylaws

specifically provide for this procedure: section 11(a) states that any person may provide

information to the medical staff about the conduct of a staff physician. Therefore,

Woodworth’s communications with Dr. Gupta and her comments to the executive

committee are protected under section 47, subdivision (b).

Plaintiff’s claims against Drs. Sanderfer and Rouhe are also based entirely on

communications made in the course of the executive committee investigation. These

statements are, therefore, privileged under section 47, subdivision (b).

Plaintiff sued Gross based on his report to Vista regarding the executive committee

proceedings. Vista could either ratify the executive committee’s action or it could require

36

it to undertake further proceedings. Gross’s report, therefore, was still part of the

executive proceeding and is covered by the privilege under section 47, subdivision (b).

Accordingly, we affirm the trial court’s judgment in favor of defendants Woodworth,

Gross, Sanderfer and Rouhe because their communications are absolutely privileged under

Civil Code section 47, subdivision (b).

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Ward

J .

We concur:

/s/ Ramirez

/s/ Richli

P.J.

J .

37

Macris v. Richardson (Summary)

PEER REVIEW PRIVILEGE

Macris v. Richardson, No. CVA08-004 (Guam Terr. May 10, 2010)

The Supreme Court of the Territory of Guam vacated a trial court’s grant of summary judgment which found that a memorandum which triggered a peer review proceeding was absolutely privileged.

An emergency room physician sent a memorandum to hospital and physician leaders regarding alleged deficiencies in the treatment provided by a second physician. The second physician filed a libel action against the emergency room physician, who asserted that the memorandum was absolutely privileged, while the plaintiff-physician alleged that the memorandum was merely entitled to qualified privilege status. The Supreme Court of the Territory of Guam held that since the memorandum was a communication, and not an “act” performed during peer review, the qualified privilege does not apply. However, the court also found that without more facts, it could not assume that the peer review process was an “official proceeding” entitled to an absolute privilege. The court adopted a two-part test, vacated the trial court’s grant of summary judgment, and remanded the case to the trial court.

Madsen v. Audrain Health Care,

Madsen v. Audrain Health Care,
No. 01-3252 (8th Cir. July 18, 2002)

The
Eighth Circuit Court of Appeals affirmed, for the most part, a decision of the
United States District Court for the Eastern District of Missouri to dismiss
a physician’s claims against a hospital and individual doctors of the hospital
over the loss of his medical staff privileges. The physician signed an agreement
guaranteeing him a minimum income from the hospital and alleged that terminating
him through the peer review process effected a breach of that contract. The
court held that the contract expressly provided that if the physician should
lose his staff privileges, that action would terminate the agreement, thus it
did not constitute a breach of contract.

The court also held that a mere reference in the physician’s agreement to the
medical staff bylaws did not create a contractual relationship with regard to
those bylaws in their entirety. The physician was bound only to the separate
specific parts referenced in the agreement, with contractual enforcement to
all bylaws needing to be set out in a separate document. The court additionally
noted that just because a physician was bound to the bylaws did not automatically
bind the hospital as well, absent an express stipulation as such.

The only claim the court reversed the dismissal of was the claim of slander,
which, procedurally assuming the facts plead to be true, the court was unable
to say that there was not enough there to support his claim entitling him to
relief.

Maheshwari v. Vista Hosp. Sys., Inc.

Maheshwari v. Vista Hosp.
Sys., Inc.,
No. E031768 (Cal.Ct.App. Sept. 9, 2003)

A
hospital found that a physician made inappropriate comments in violation of
its sexual harassment policy, spoke to him about the issue, gave him a copy
of the policy, and issued two letters of warning to him. The physician filed
suit claiming, among other things, violation of common law fair procedure. The
court held that fair procedure was not required because the letters, unlike
a denial, termination, or suspension of privileges, did not significantly impair
the physician’s ability to practice medicine and therefore did not affect an
important, substantial economic interest. The court also held that, even if
fair procedure was required, it was provided by the hospital since it had provided
adequate notice and a reasonable opportunity to respond.

Maak v. IHC Health Services

REIMBURSEMENT/INSURANCE

Maak v. IHC Health Services, Inc., No. 20060124-CA (Utah Ct. App. July 12, 2007)

The Utah Court of Appeals held that a hospital could not bill a patient for medical services after it had collected the full amount chargeable for those services from the patient’s insurer. The patient received emergency medical care at the hospital. Her insurance company later reimbursed the hospital in excess of what the hospital actually charged for the services pursuant to the contract it had with the insurer, which classified all medical services provided at the hospital into Diagnostic Related Groups (DRGs). Under the contract, the insurance company reimbursed the hospital based upon the DRG at a predetermined fixed rate, without regard to the actual costs the hospital incurred for the particular service. Although it received payment from the insurance company in excess of the costs of the services rendered, the hospital then billed the patient for her coinsurance obligation under her insurance plan. The court determined that the contract between the patient and hospital, signed by the patient at the time of admission, was ambiguous and could not provide the basis for the hospital to collect coinsurance from the patient in excess of the actual costs of the health services rendered. The court also held that, even though the contract between the patient and her insurance company required the patient to pay her coinsurance amount notwithstanding the possibility that the insurance company has fully reimbursed the hospital for services rendered, it did not purport to authorize a health provider or anyone other than the insurance company to enforce payment of the coinsurance.

 

Macro v. Independent Health Ass’n

Macro v. Independent Health Ass’n,

No. 01-CV-0504C(SC) (W.D.N.Y. Oct. 25, 2001)

Two women, who were receiving medical treatment to assist conception, brought suit
against their insurer when the women received a notice that the plan would no
longer cover the treatment of infertility as part of their group health contract.
The women were insured by the health insurance plan offered through their husbands’
employer. Alleging, among other things, that the insurer’s denial of coverage
for infertility violated New York Insurance Law, the women brought this class
action suit against the insurer in New York state court. After the insurer removed
the case to federal court on the claiming ERISA preemption, the women challenged
the validity of the preemption on the basis of ERISA’s “savings clause”
asserting that the federal court lacked subject matter jurisdiction over their
claim. The “savings clause” prevents the ERISA preemption of a law
suit brought in state court when the suit is based on state laws that purport
to “regulate[ ] insurance” even if the claims “relate to”
an employee benefit plan.

The United States District Court for the Western District of New York ruled
that the suit was not pre-empted and remained the case back to state court.
The court held that the state statute at issue, a statute that prohibited an
insurance policy from denying coverage for diagnosis and medical and surgical
treatment of a correctable medical condition solely because the condition results
in infertility, fulfilled the “savings clause” requirement that it
be clearly and obviously directed toward the insurance industry. Each provision
of the statute contained a mandatory prohibition against an insurance policy’s
exclusion of certain treatments.

 

Maduka v. Sunrise Hosp.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
(cid:252)

GODWIN MADUKA, M.D.,
Plaintiff-Appellant,
v.
SUNRISE HOSPITAL, a Nevada
corporation, dba Sunrise Hospital
and Medical Center; SUNRISE
HOSPITAL AND MEDICAL CENTER
FAIR HEARING COMMITTEE;
COLUMBIA/HCA HEALTHCARE
CORPORATION, a Delaware
corporation,
Defendants-Appellees. (cid:254)

(cid:253)

No. 03-15332
D.C. No.
CV-00-00830-LDG
OPINION

Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding

Argued and Submitted
April 14, 2004—San Francisco, California

Filed July 15, 2004

Before: J. Clifford Wallace, Alex Kozinski, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Wallace

9329

MADUKA v. SUNRISE HOSPITAL

9331

COUNSEL

Randall H. Scarlett, Randall H. Scarlett Law Group, San
Francisco, California, and Cal J. Potter, III, Potter Law
Offices, Las Vegas, Nevada, for the plaintiff/appellant.

9332

MADUKA v. SUNRISE HOSPITAL

John R. Bailey, Law Offices of John R. Bailey, Las Vegas,
Nevada, and Dennis L. Kennedy, Lionel Sawyer & Collins,
Las Vegas, Nevada, for the defendants/appellees.

OPINION

WALLACE, Senior Circuit Judge:

Dr. Godwin Maduka appeals from the district court’s judg-
ment dismissing his Second Amended Complaint with preju-
dice. We have jurisdiction over Maduka’s timely filed appeal
pursuant to 28 U.S.C. § 1291. We reverse.

I.

The following narrative is drawn primarily from Maduka’s
complaint. Sunrise Hospital hired Maduka, an American of
African ancestry, as an anesthesiologist in August 1997.
Shortly after completing the hospital’s monitorship program,
Maduka was involved in two incidents that prompted the
revocation of his staff privileges.

On May 4, 1999, Maduka was administering anesthesia to
a candidate for cardio-defibrillator implant surgery. Maduka’s
initial placement of a laryngeal mask airway was unsuccess-
ful, as the blueish hue of the patient’s skin proved. Maduka
attempted to insert an endotracheal tube, but soon needed to
reintubate with a larger tube. The surgery was aborted,
although Maduka’s complaint does not indicate why. The
patient apparently did not suffer any neurological damage
from a lack of oxygen, yet he subsequently died from an
arrhythmia brought on by his cardiac condition.

Exactly one month after the first reintubation, another
patient under Maduka’s care began showing signs of oxygen
deprivation, and Maduka again had to reinsert an endotracheal

MADUKA v. SUNRISE HOSPITAL

9333

tube. This operation proceeded as planned once Maduka suc-
cessfully reintubated the patient, and there were no indica-
tions of any side effects from the improper initial placement.

Although the supervising physicians did not file a report on
either occasion, two nurses apparently witnessed the incidents
and provided statements to Dr. Mantin, who relayed the state-
ments to the Sunrise Hospital and Medical Center Fair Hear-
ing Committee (Committee). Acting as prosecutor in the
Committee’s subsequent hearing, Dr. Mantin vouched for the
witnesses’ credibility, but he did not reveal their identities.
Maduka was denied several standard procedural protections at
the hearing, including the opportunity to cross-examine the
two nurses. The Committee summarily suspended Maduka’s
staff privileges on June 4, 1999.

Maduka filed a federal civil rights action against Sunrise
Hospital and several related entities (Sunrise) in the United
States District Court. The district court dismissed all his
claims with prejudice except his charge of defamation (which
was dismissed without prejudice) and denied a subsequent
petition for reconsideration. After the filing of Maduka’s First
Amended Complaint, the district court granted Maduka’s
motion to reconsider, vacated its order dismissing Maduka’s
discrimination claim with prejudice, and instead dismissed the
claim without prejudice. Maduka’s Second Amended Com-
plaint (Complaint)—the one at issue here—only alleged dis-
crimination. The Complaint asserted claims under the United
States Constitution and 42 U.S.C. §§ 1981 and 1988, alleging
that Sunrise’s actions were motivated by his race, and offering
two examples demonstrating this discriminatory motive. First,
whereas other Sunrise staff who were not Americans of Afri-
can ancestry violated hospital rules during the two incidents,
none faced discipline. Second, Sunrise summarily dismissed
Maduka without providing various procedural protections,
which it routinely affords non-black staff members.

Sunrise moved to dismiss the Complaint pursuant to Fed-
eral Rule of Civil Procedure 12(b)(6) for failure to state a

9334

MADUKA v. SUNRISE HOSPITAL

claim upon which relief can be granted. The district court
granted the motion and dismissed the Complaint on January
22, 2003. It held that Maduka made “only conclusory allega-
tions of racial discrimination, and . . . fail[ed] to allege any
fact or facts constituting either direct or circumstantial evi-
dence of discrimination.”

II.

We review a Rule 12(b)(6) dismissal for failure to state a
claim de novo, and accept as true all well-pleaded allegations
of fact in the Complaint, construing them in the light most
favorable to Maduka. Roe v. City of San Diego, 356 F.3d
1108, 1111-12 (9th Cir. 2004). Dismissal “is appropriate if it
appears beyond doubt that [Maduka] can prove no set of facts
in support of his claim which would entitle him to relief.” Id.
at 1112 (internal quotation marks and citation omitted).

[1] Nearly a year before the district court’s dismissal, the
Supreme Court determined the pleading standards appropriate
for complaints alleging employment discrimination. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Presented
with “the question whether a complaint in an employment dis-
crimination lawsuit must contain specific facts establishing a
prima facie case of discrimination under the framework set
forth by this Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973),” the Court held “that an employment
discrimination complaint need not include such facts and
instead must contain only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’ ” Id. at
508, quoting Fed. R. Civ. P. 8(a)(2).

Surprisingly, neither of the parties in this “employment dis-
crimination lawsuit” cited Swierkiewicz to the district court
and the district court does not appear to have applied it to
Maduka’s case. Only after we ordered the parties to prepare
to discuss the case at oral argument did counsel for Sunrise

MADUKA v. SUNRISE HOSPITAL

9335

incorporate Swierkiewicz’s standard
into his analysis,
although Maduka’s counsel failed to do so even then.

[2] Admittedly, Swierkiewicz involves a slightly different
context: Maduka seeks relief pursuant to 42 U.S.C. § 1981,
while the plaintiff in Swierkiewicz asserted claims under Title
VII of the Civil Rights Act of 1964 and the Age Discrimina-
tion in Employment Act of 1967. See id. at 509. Nevertheless,
there is little doubt that Swierkiewicz governs complaints in
section 1981 discrimination actions. At a minimum, its “rea-
soning applies to any claim to which the McDonnell Douglas
framework is applicable.” Edwards v. Marin Park, Inc., 356
F.3d 1058, 1062 (9th Cir. 2004); see also Swierkiewicz, 534
U.S. at 513 (“Rule 8(a)’s simplified pleading standard applies
to all civil actions, with limited exceptions.”); cf. Galbraith v.
County of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir.
2002) (holding that Swierkiewicz overruled the heightened
pleading standards imposed by the Ninth Circuit on certain
constitutional tort claims). Since we employ McDonnell
Douglas’s summary
judgment evidentiary approach
to
employment discrimination claims under 42 U.S.C. § 1981,
see, e.g., Rodriguez v. Gen. Motors Corp., 904 F.2d 531, 532
(9th Cir. 1990), it logically follows that we employ Swier-
kiewicz’s pleadings approach to these claims as well. We
therefore hold that in order to survive a Rule 12(b)(6) motion
to dismiss, a complaint asserting a claim for employment dis-
crimination pursuant to 42 U.S.C. § 1981 “must contain only
‘a short and plain statement of the claim showing that the
pleader is entitled to relief.’ ” Swierkiewicz, 534 U.S. at 508,
quoting Fed. R. Civ. P. 8(a)(2).

III.

Conceding Swierkiewicz’s applicability, Sunrise asserts that
the district court in fact faithfully followed it. Our review,
however, yields a different conclusion: the district court did
not follow the teaching of Swierkiewicz that “the Federal

9336

MADUKA v. SUNRISE HOSPITAL

Rules do not contain a heightened pleading standard for
employment discrimination suits.” Id. at 515.

[3] The district court framed “[t]he critical question” as
“whether Maduka has alleged sufficient facts showing that he
was similarly situated to a non-African American doctor, but
nevertheless received different treatment.” It concluded that
the Complaint was inadequate under this test because it
included “only conclusory allegations of racial discrimination,
and . . . fail[ed] to allege any fact or facts constituting either
direct or circumstantial evidence of discrimination.” This
approach is inconsistent with Swierkiewicz’s willingness to
“allow[ ] lawsuits based on conclusory allegations of discrim-
ination to go forward,” id. at 514, and it ignores Swier-
kiewicz’s command that “an employment discrimination
plaintiff need not plead a prima facie case of discrimination,”
id. at 515; see also Edwards, 356 F.3d at 1061 (“Swierkiewicz
overruled the . . . practice of imposing, at the dismissal stage,
the prima facie case framework of McDonnell Douglas
. . . .”). Whether “similarly situated individuals outside
[Maduka’s] protected class were treated more favorably” is
one of the four criteria for a prima facie case under McDon-
nell Douglas, Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir.
2003), but Maduka’s Complaint need not satisfy this require-
ment under Swierkiewicz. Simply put, the district court erred
in not applying “the ordinary rules for assessing the suffi-
ciency of a complaint.” Swierkiewicz, 534 U.S. at 511.

IV.

[4] We do not determine here whether Maduka’s complaint
“satisf[ies] only the simple requirements of Rule 8(a).” Id. at
513. Rather, we remand to the district court so that it may do
so in the first instance.

REVERSED and REMANDED.