Jensen v. Salinas Valley Mem’l Healthcare Sys.

Filed 1/30/02

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

LOIS A. JENSEN,

Plaintiff and Appellant,

H022004
(Monterey County
Super. Ct. No. M48150)

SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM ,

Defendant and Respondent.
________________________________/

After her application for physician privileges was denied by the Board of Directors

of the Salinas Valley Memorial Healthcare System, Lois Jensen, M.D., filed a petition in

superior court for a writ of mandate. The petition was denied and judgment was entered

for respondent. Appellant contends the petition should have been granted because the

Board of Directors applied an incorrect standard of review to the evidence supporting her

application. We will affirm the judgment.

Procedural History

Appellant, a certified specialist in obstetrics and gynecology, applied for staff

privileges at the Salinas Valley Memorial Hospital (Hospital) in July 1998. She was

granted temporary privileges on September 18, 1998 and was assigned a proctor pending

review of her application.

After a series of incidents in which observers questioned her technical skills, the

Medical Executive Committee (MEC) denied appellant’s application. At her request a

hearing was conducted, after which a Hearing Panel of three physicians concluded that
she should be granted provisional membership.1
Pursuant to the staff bylaws, the MEC appealed the decision to the Board of

Directors. The Board reversed the Hearing Panel’s decision on the grounds that (1) there

was “substantial non-compliance” by the Hearing Panel with the procedures established

by the bylaws, and (2) the Hearing Panel’s decision was not supported by substantial

evidence.

Appellant sought review in the superior court by a petition for a writ of mandamus

or prohibition. She claimed that she was denied notice and an opportunity to be heard,

that the Hospital’s notice of appeal violated the bylaws, that the Board’s decision violated

the bylaws, and that the Board’s decision was misleading and erroneous in the face of

substantial evidence to support the Hearing Panel’s conclusions. After reviewing the

administrative record and receiving argument, the court denied appellant’s petition and

entered judgment for the Hospital.
Evidence Before the Hearing Panel2

On October 7, 1998, Dr. Robert Sugar was the anesthesiologist during a Cesarean

section performed by appellant. After observing appellant for about 10 minutes, Dr.

Sugar became concerned about appellant’s surgical technique. He felt he was “watching

1
Provisional privileges follow initial staff appointments and last for 180 days,
during which time the clinical department chair evaluates the staff member’s
performance.
2
California Rules of Court, rule 15, requires that every brief support any reference
to a matter in the record by a citation to the record. Appellant’s opening brief completely
fails to comply with this rule. The respondent’s brief is also deficient in this respect. We
will disregard all factual statements that are not supported by appropriate and accurate
citation to the record.

a very inexperienced surgeon, someone who [he] would have guessed would have been in

very early training.” Dr. Sugar called Dr. James Gilbert, who was on call and agreed to

come in. When appellant tossed a roll of gauze to Dr. Sugar and asked him to tie it to the

anesthesia machine, Dr. Sugar asked her to stop and wait for Dr. Gilbert, who was on his

way. Appellant was attempting to initiate a procedure with which Dr. Sugar was

unfamiliar, though it was commonly used in the hospital she had practiced in previously.

Dr. Gilbert observed the rest of the operation, intervening only twice. The patient was in

no danger. However, Dr. Gilbert found appellant’s technique to be “immature,” clumsy,

and inefficient. At the hearing appellant testified that due to fatigue she had fumbled the

retractor and decided to proceed slowly and carefully.

On October 8, 1998, the Medical Executive Committee (MEC) voted to suspend

appellant’s temporary privileges as a result of the concerns expressed about the surgery

the previous day. On October 14, 1998, the MEC reinstated her privileges subject to

certain conditions. For all abdominal surgeries appellant would be required to use a

senior member of her practice group to assist her, along with an observing physician who

was not a member of her group. The committee expected after two months to review her

performance in at least four abdominal surgery cases and six cesarean sections. The

committee reserved the right to “immediately suspend” appellant’s temporary privileges

“[s]hould any untoward event occur.”

On October 22, 1998, appellant performed a cesarean section and tubal ligation,

assisted by Dr. Jim Ross from her practice group, without an observer present. Dr. Ross

described it as an uneventful procedure, though he had to return the patient to surgery to

repair a postoperative hemorrhage that had resulted from a slipped suture. Appellant

testified that she had told Dr. Ross that without an outside observer present she could

only assist, but he repeatedly directed her to start the surgery, so she finally complied.

Dr. Ross explained that he had not understood at that time that appellant was subject to

more stringent conditions than were usual at this hospital.

On November 11, 1998, appellant again performed a tubal ligation without an

observer. Appellant explained to the Hearing Panel that she had made a mistake on that

occasion, because she had not been thinking of the procedure — which required a small

abdominal incision — as abdominal surgery.

On November 25, 1998, the MEC wrote appellant a letter reminding her of the

observer condition and warning her that any further violation would result in immediate

suspension of her privileges.

On December 2, 1998, Dr. B. Sanders Watkins observed appellant perform a

vaginal delivery by vacuum extraction, in which she repeatedly applied a suction cup to

the baby’s head. Dr. Watkins believed that the baby’s distressed condition and the

patient’s difficult progress during this second stage indicated the need for an immediate

cesarean section. Dr. Watkins was also concerned that appellant had not anticipated or

prepared for the possibility that a respiratory therapist or pediatrician would be needed in

the delivery room. Appellant disagreed with Dr. Watkins’s opinion regarding the

alternative of a cesarean section; she had thought she could get the baby out faster with

vacuum extraction. Though a pediatrician had not been present, there had been a

pediatric nurse who appellant thought was trained in intubation.

On December 14, 1998, appellant performed a cesarean section, observed by Dr.

Gilbert. While noting a problem involving a loose suture he determined that appellant’s

technique was “significantly more average and competent” than her October 7

performance. Dr. Gilbert added, however, that “[t]his was at least partially due to the

very directive and competent assistance of Dr. Ross.”

On December 30, 1998, Dr. Watkins proctored a cesarean section. Dr. Nick

Yaqub, a senior member of appellant’s practice group, assisted her in the operation. Dr.

Watkins was concerned that appellant had attempted to cut the rectus muscle when it was

not necessary. Dr. Yaqub took away the scissors and delivered the baby. Dr. Watkins

also observed appellant fail to respond when blood began spurting from a uterine artery

she had severed; appellant moved as if “in slow motion,” and Dr. Yaqub had to tell her

twice to clamp it. Dr. Watkins believed that appellant’s performance was unacceptable

and jeopardized the patient’s safety. She “was never in control of this operation; she was

never in control of the fate or outcome of this infant.” Had Dr. Yaqub not been there to

instruct and direct her, Dr. Watkins “would have been fearful of the outcome.” In her

testimony before the Hearing Panel appellant denied trying to cut the muscle; she said she

had only considered enlarging the uterine incision before Dr. Yaqub suggested an

alternative technique. Appellant had no recollection of the severed artery.

On January 6, 1999, appellant participated in a vaginal hysterectomy, which she

had been told required an observer. When Dr. Falkoff, the Chief of Staff, asked her the

next day how the surgery had gone, appellant told him she had not been able to find an

observer, so Dr. Yaqub had performed the surgery with her assisting. The MEC

subsequently learned, however, that appellant was the lead surgeon and that Dr. Yaqub

had been the assistant on that occasion. Though appellant testified that she had only

assisted and followed Dr. Yaqub’s direction, other witnesses who had been present in the

operating room submitted declarations stating that she was the lead surgeon. The

Hearing Panel determined that appellant “probably” was the lead surgeon on that

occasion.

On January 8, 1999, Dr. Norman Nelson observed appellant during an abdominal

hysterectomy. He judged appellant’s performance to be like that of a first-year resident;

she was “too tentative, too slow, and too unsure of what to do next.” She often deferred

to the judgment of her assistant, Dr. Yaqub, who “seemed to be taking charge by default.”

Dr. Nelson recommended that she not receive privileges because he felt that an

emergency or technically difficult case “would be beyond her.” Appellant, however,

considered this to be “an entirely uneventful hysterectomy.” She agreed that she was

slow, but that was a comfortable speed for her; she considered it more important to be

careful.

On January 11, 1999, Dr. J.K. Hoffman observed an elective repeat-cesarean

section in which appellant’s overall performance was “adequate.” She was “fairly slow”

and had some difficulty elevating the baby’s head and cutting the rectus muscle, but her

assistant helped her “quite a bit.” Though no other significant deficiencies were noted,

Dr. Hoffman questioned the wisdom of performing this elective procedure at the baby’s

gestational age.

On January 13, 1999, appellant was observed by Dr. Pablo Romero in two

cesarean sections. In one he commented that appellant was “very slow,” and that her

assistant, Dr. Yaqub, “frequently performed the role of the surgeon.” In the second case

he noted her failure to make a diagnosis that might have averted the need for the

procedure, and he was not sure how well appellant would perform with a less capable

assistant than Dr. Yaqub.

On January 15, 1999, the MEC advised appellant that it had voted again to

suspend her temporary privileges. The committee cited appellant’s performance of

surgery without an observer on October 22, 1998 and November 11, 1998. It also

confronted appellant with her unproctored performance of the January 6 hysterectomy, in

which she had claimed to have only assisted Dr. Yaqub. The MEC explained that the

Credentials Committee would review her file and make a recommendation regarding her

application for staff privileges.

Appellant attended a meeting conducted by the Credentials Committee on

February 1, 1999. After considering reports from observers, statements from witnesses to

the January 6 surgery, and information appellant had provided, the committee

recommended denial of appellant’s application. The MEC reviewed the history and

concluded that appellant was “not technically competent to perform surgeries without

putting patients at risk.” Her “ethical standards” were also in question because of her

failure to obtain an observer for three surgical procedures. ( Ibid.) Accordingly, the MEC

followed the recommendation of the Credentials Committee and denied appellant’s

application.

The hearing, which took place before three physicians and a hearing officer,

consisted of testimony from several witnesses and submission of exhibits. The Hearing

Panel determined that appellant had made an effort to comply with the proctoring

requirement, she was competent, and the denial of her privileges was “improper.” Any

breach was “understandable.” Moreover, the panel questioned the fairness of imposing

the October 14 conditions of appellant’s temporary privileges without giving her notice or

invitation to respond. Addressing the common complaint that appellant was slow, the

panel noted that the babies had been delivered timely with no compromise of patient care.

Being “prompted and led” through surgery did not indicate that appellant’s assistants —

her senior associates — were concerned about patient safety or appellant’s skills. The

panel added “parenthetically” that it believed appellant should have been given an

opportunity to review her performance with her observers. The Hearing Panel concluded

that appellant should be granted provisional membership status.

Review of the Hearing Panel’s Decision

The MEC appealed the Hearing Panel’s determination to the chief executive

officer on the grounds that (1) there was “[s]ubstantial non-compliance with the

procedures required by [the] Bylaws or applicable law which has created demonstrable

prejudice”; and (2) the panel’s decision “was not supported by substantial evidence based

upon the hearing record.” The president of the Board appointed an appellate review

panel (ARP) to review the evidence and recommend a final action to the Board.

Both the MEC and appellant submitted written and oral argument to the ARP,

which agreed with the MEC on both issues. The Hearing Panel, it stated, had no power

either to disregard Hospital policies or to excuse appellant’s noncompliance. Any one of

the deficiencies cited by the MEC was sufficient to deny her privileges: her “repeated

disregard” of the conditions imposed to protect patients; her “poor ethics” as

demonstrated by her lying about who had performed an operation; or her “lack of

competence” as described by the physicians who had observed her. Instead of limiting its

determination to whether these deficiencies had occurred, the Hearing Panel had “far

exceeded its delineated powers” and made several findings reserved to the MEC under
Business and Professions Code section 800 and the hospital bylaws.3 Once it found that
appellant had violated the MEC’s directives and displayed “insufficient” ethical

standards, the Hearing Panel was not permitted to excuse appellant but “had to uphold the

MEC’s decision to deny her request for privileges.” The Hearing Panel’s determinations

thus constituted “substantial non-compliance” with the Hospital bylaws and state law.

The ARP further found that the Hearing Panel’s decision was not supported by

substantial evidence. All five of the proctors had questioned appellant’s technical skills

as a surgeon and physician. The Hearing Panel had found these observers to be highly

respected and truthful, but it dismissed their concurrent assessments because they “did

3 The following findings of the Hearing Panel were deemed inappropriate by the ARP:
“1. In order to protect the Hospital’s patients, the MEC should not have required an
observer to watch Dr. Jensen. [¶] 2. The MEC should have provided Dr. Jensen with a
formal response prior to imposing any conditions upon her exercise of privileges at the
Hospital. [¶] 3. The MEC should have provided a formal procedure pursuant to which
Dr. Jensen’s observers could have instructed her on how to improve her performance. [¶]
4. Dr. Jensen was excused from following the directives in the MEC’s letter to her which
were provided to protect patients because the letter was not worded identically to the
minutes of the MEC’s meeting. [¶] 5. Dr. Jensen was excused from following the
directives in the MEC’s letter to her which were provided to protect patients because Dr.
Ross told her so. [¶] 6. Dr. Jensen was excused from following the directives in the
MEC’s letter to her which were provided to protect patients because she could not
remember that a post-partum tubal ligation (a surgery in which the physician opens up the
patient’s abdomen) was considered an abdominal surgical procedure. [¶] 7. Dr. Jensen
was excused from following the directives in the MEC’s letter which were provided to
protect patients, as well as from following Hospital procedures regarding obtaining
informed consent, because she claimed she was unable to find an observer. [¶] 8. The
requirement that physicians must be ethical and honest in order to be on staff does not
apply to Dr. Jensen. [¶] 9. Dr. Jensen must be granted privileges.”

not provide enough concrete specific examples.” Such examples were in fact provided,

the Board noted, especially by Dr. Watkins. The only supporting evidence of

competence came from appellant herself and Dr. Ross, who had practiced with appellant

at the time of the events. The Hearing Panel had also improperly accepted appellant’s

excuses even after finding she had lied about who had performed the January 6 surgery.

The ARP concluded that the entire record demonstrated that “all three of the

reasons given by the MEC for denying Dr. Jensen’s request for privileges were in

existence.” As even one of those reasons would have been a sufficient ground for denial,

the Hearing Panel was compelled to decide against appellant. The Board adopted the

ARP’s conclusions and denied appellant’s request for staff membership and privileges.

In her petition in the superior court, appellant asserted the following: (1) the MEC

had denied her due process by summarily suspending her privileges without notice and an

opportunity to be heard; (2) the MEC’s notice of appeal was deficient because it failed to

contain a clear and concise statement of the facts supporting the appeal, as required by

the bylaws; (3) the Board had grossly misstated the facts; and (4) substantial evidence

supported the Hearing Panel’s decision. The court, however, found that the Board had

applied the correct standard of review and that its decision to deny appellant privileges

was supported by substantial evidence. This appeal followed.

1. Standard of Review

Discussion

Code of Civil Procedure section 1094.5 sets forth the rules of review for

administrative mandamus proceedings. The superior court’s review of a final

administrative decision extends to “questions whether the respondent has proceeded

without, or in excess of jurisdiction; whether there was a fair trial; and whether there was

any prejudicial abuse of discretion. Abuse of discretion is established if the respondent

has not proceeded in the manner required by law, the order or decision is not supported

by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc.,

§ 1094.5, subd. (b).)

Appellant has not disputed that the Hospital is a public hospital governed by a

board of directors in a district organized under section 32000, et. seq. of the Health and

Safety Code. Accordingly, with respect to the substantive medical issues, review of the

Board’s action is governed by the abuse-of-discretion standard. (Code Civ. Proc., §

1094.5, subd. (d).) Abuse of discretion is established “if the court determines that the

findings are not supported by substantial evidence in the light of the whole record.”

(Code Civ. Proc., § 1094.5, subd. (d).)

Our role on appeal “is the same as the superior court’s, which was the same as the

hospital’s governing body. ‘Like the trial court, we also review the administrative record

to determine whether its findings are supported by substantial evidence in light of the

whole record, our object being to ascertain whether the trial court ruled correctly as a

matter of law.’ ” (Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62

Cal.App.4th 1123, 1136-1137 (Hongsathavij).) Review, therefore, involves both a

procedural and a substantive aspect. The court is to determine, on the basis of the

administrative record, whether there was a fair hearing and whether the hospital’s

findings are supported by the evidence.

2. Procedural Due Process

Appellant first argues that she was denied due process both before the hearing and

when the MEC appealed the Hearing Panel’s decision. Before the hearing took place, her

rights were infringed by the suspension of her privileges without giving her an

opportunity to explain the events prompting the suspension. The summary suspension

violated Business and Professions Code section 809.5, subdivision (a), because there was

no showing of “imminent danger to the health of any individual.” The Credentials

Committee, which screened appellant’s application for the MEC, made its

recommendation “in a due process vacuum” — meaning, presumably, without seeking

input from appellant.

Appellant notes that the parties were bound by notice and he aring provisions

contained in the Hospital’s bylaws, but she does not indicate which bylaws were violated

by the summary suspension. She then argues her “due process” rights were violated,

premised on the incorrect assertion that the “fair procedure” to which she was entitled is

equivalent to due process, and without citation to any authority precluding summary

suspension of temporary physician privileges.

Due process and fair procedure are distinct concepts, though “the essence of both

rights is fairness. Adequate notice of charges and a reasonable opportunity to respond are

basic to both sets of rights.” ( Applebaum v. Board of Directors (1980) 104 Cal.App.3d

648, 657; Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555;

Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 829-830.) “The common

law requirement of a fair procedure does not compel formal proceedings with all 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

an applicant to present his position. . . . [T]his court should not attempt to fix a rigid

procedure that must invariably be observed.” ( Pinsker v. Pacific Coast Society of

Orthodontists, supra, 12 Cal.3d at p. 555.) In the hospital context, “courts must not

interfere to set aside decisions regarding hospital staff privileges unless it can be shown

that a procedure is ‘substantively irrational or otherwise unreasonably susceptible of

arbitrary or discriminatory application . . . .’ ” ( Rhee v. El Camino Hospital Dist. (1988)

201 Cal.App.3d 477, 489, quoting Miller v. Eisenhower Medical Center (1980) 27 Cal.3d

614, 626-627.) Furthermore, “[a] physician’s right to practice in a hospital is not

absolute. It ‘must be balanced against other competing interests: the interests of

members of the public in receiving [high-]quality medical care, and the duty of the

hospital to its patients to provide competent staff physicians.’ ” (Goodstein v. Cedars-

Sinai Medical Center (1998) 66 Cal.App.4th 1257, 1265, quoting Rhee v. El Camino

Hospital Dist., supra , 201 Cal.App.3d at p. 489.) Consequently, hospitals should have

“the widest possible discretion in decisions affecting physician staff privileges.” (Oskooi

v. Fountain Valley Regional Hospital (1996) 42 Cal.App.4th 233, 249.)

a. Pre-hearing Procedures

We see no deprivation of fair procedure in advance of the hearing. Before the

suspension of her temporary privileges, appellant was twice warned of the consequences

of noncompliance with the conditions of her temporary privileges. In the October 14

letter reinstating her temporary privileges, the Hospital reserved the right to suspend her

temporary privileges immediately “[s]hould any untoward event occur.” On

November 25, following the first two breaches of the proctoring conditions, appellant

was again warned that if she violated any condition again her temporary privileges would

be suspended immediately. On both of those occasions appellant was invited to call the

Chief of Staff, the hospital CEO, or the chairperson of the department if she had any

questions about the conditions of her privileges. The same offer was extended in the

January 15, 1999 letter notifying her of the suspension. Appellant apparently declined to

avail herself of those opportunities to challenge the basis of the suspension. Appellant

has not explained why either the law or the Hospital’s bylaws required more.

Furthermore, the Credentials Committee met with appellant on February 1, 1999,

thus giving her an opportunity to discuss the circumstances of the suspension. Appellant

presents no facts supporting her assertion that the Credentials Committee made its

decision in a “due process vacuum.” Nor, of course, does she take issue with any

procedures employed at the administrative hearing.

b. Post-Hearing Procedure

Appellant argues that she was also denied due process after the hearing, when the

MEC failed to state the facts supporting its grounds for appeal. The bylaws require any

request for appeal to include not only an identification of the grounds but also a “clear

and concise statement of the facts in support of the appeal.” The MEC’s request failed to

contain a statement of supporting facts; consequently, appellant told the ARP, she did not
know what the MEC’s contentions were and thus had no way to respond.4
Two grounds were asserted by the MEC for its appeal to the ARP. Quoting the

bylaws, the MEC listed “a. Substantial non-compliance with the procedures required by

these bylaws or applicable law which has created demonstrable prejudice; [¶] b. The

decision was not supported by substantial evidence based upon the hearing record.” We

find it unnecessary to reach the merits of appellant’s contention as to the first ground,

because we believe the MEC misinterpreted the “substantial non-compliance” provision

in making its argument to the ARP. The MEC was entitled to argue that the Hearing

Panel had failed to comply with the procedures established by the bylaws for the hearing.

Its argument on review, however, was essentially that the Hearing Panel had exceeded its

powers under the bylaws in rendering the decision. This argument went to the substance

of the Hearing Panel’s decision based on the evidence, not its compliance with hearing

procedures.

Under the bylaws, the Board was required to affirm the Hearing Panel’s decision if
the hearing was fair and the decision was supported by substantial evidence.5 Neither
party complained of any unfairness or technical violations in the way the hearing was

4
The bylaws allowed each party to submit a written statement in support of the
party’s position on appeal. Appellant submitted her statement before that of the party
appealing, i.e., the MEC.
5
Section J(2)(f) of the Hospital’s bylaws provides that “[t]he decision of the
Hearing Panel shall be subject to such rights of appeal or review as described in these
bylaws, but shall otherwise be affirmed by the Board of Directors as the final action if it
is supported by substantial evidence, following a fair procedure.” Section III(B)(6)(a)
states that except where a fair procedure has not been provided, the Hearing Panel’s
decision must be affirmed if it is supported by substantial evidence.

conducted. Consequently, the only proper question before the ARP was whether
substantial evidence supported the Hearing Panel’s decision. 6
Because the first ground was inappropriately invoked by the MEC, it is

unnecessary to address the MEC’s failure to state the facts supporting its assertion of

procedural noncompliance. As to the second ground of the MEC’s appeal — insufficiency

of the evidence — we find no prejudice in its failure to state “the facts in support of the

appeal,” as required in the bylaws. “[T]he concept of due process in a hospital

disciplinary setting does not require rigid adherence to any particular procedure.

[Citation.] Moreover, it must be kept in mind that the hospital has a duty not only to

accord due process protection to the doctor, but also to provide quality medical care to its

patients. [Citation.] Consequently, it cannot be said that a violation of a hospital’s

bylaws establishes a denial of due process in every case. [Citation.] Rather the question

is whether the violation resulted in unfairness, in some way depriving the physician of

adequate notice or an opportunity to be heard before impartial judges.” ( Rhee v. El

Camino Hospital Dist., supra , 201 Cal.App.3d at p. 497.)

The MEC’s second ground clearly challenged the sufficiency of the evidence to

support the Hearing Panel’s decision. That it did not lay out every factual finding with

which it disagreed did not prejudice appellant, since the facts were set forth in the

decision for both parties to review and discuss. Appellant was allowed — and took — the

opportunity to review all of the panel’s findings and make her argument that substantial

evidence supported those findings, just as the MEC was permitted to review those same

findings and argue why the evidence did not support them. Both parties orally argued the

6
The MEC’s expansive interpretation of “substantial noncompliance” was not
anticipated by appellant, who argued to the ARP that the MEC should have objected to
any violation of the bylaws during the hearing so that the Hearing Officer could correct
the problem. Obviously appellant was assuming the MEC was going to raise procedural
issues arising at the hearing.

issue before the ARP after submitting their written briefs. We conclude that there was

sufficient notice of the MEC’s position and opportunity to be heard on the question of the

sufficiency of the evidence.

3. Substantial Evidence

The second ground for the MEC’s appeal was the lack of substantial evidence to

support the Hearing Panel’s decision. The ARP agreed with the MEC that the evidence

was insufficient in that the Hearing Panel had disregarded evidence contrary to its
findings.7 Appellant contends that the ARP improperly substituted its own judgment for
that of the Hearing Panel, instead of applying the substantial evidence standard.

Secondly, she argues, substantial evidence supported the decision of the Hearing Panel.

a. Standard used by the ARP

In Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1293, as in this case,

the hospital’s bylaws imposed the same standard of review on the appeal board as on the

trial court and appellate court. The appellate court, however, determined that the

hospital’s appeal board (composed of a quorum of its board of directors) had not applied

the substantial evidence standard, but had instead reweighed the evidence and

independently determined that the physician’s testimony was not credible. ( Id. at pp.

1292, 1294.) Because the appeal board had failed to adhere to the correct standard of

7
Though unnecessary to our resolution of this appeal, we note that the ARP cited a
completely inapposite case, Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38
Cal.App.3d 14, 24 for its assertion that the Hearing Panel improperly disregarded
evidence contrary to its findings. In Northern Inyo Hosp. the appellate court was
emphasizing the role of the reviewing court, which, in evaluating the record for
substantial evidence, “may not isolate only the evidence [that] supports the administrative
finding and disregard other relevant evidence in the record.” ( Ibid.) The ARP
inappropriately assigns this duty to the Hearing Panel, the body that originally heard the
evidence and made the findings of fact. It then faults the Hearing Panel for failing to
follow that inapplicable principle of review.

review, the trial court’s conclusion –that the appeal board’s decision was supported by

substantial evidence — was meaningless. ( Id. at p. 1295.)

In Hongsathavij, supra, 62 Cal.App.4th 1123, the court applied the Huang

reasoning to a hospital appeal board’s reversal of a hearing panel’s decision. The judicial

review committee (JRC) had recommended reinstatement of a physician to the call panel

of the hospital’s emergency room. The appeal board reversed the JRC on the ground that

the JRC’s findings were “so lacking in evidentiary support as to render them

unreasonable.” ( Id. at p. 1137.) The Court of Appeal concluded that the appeal board

had applied the correct standard of review; consequently, the court’s duty was to

determine whether the appeal board’s decision was supported by substantial evidence.

We do not believe the ARP committed the error of the reviewing panel in Huang.

There the board actually reweighed the evidence before it and reached contrary factual

findings based on its own evaluation of the witnesses’ credibility. The board

independently determined that the physician did in fact verbally abuse and threaten a

nurse, even though the judicial review committee had found he had not done so. (220

Cal.App.3d at p. 1294.) Here the ARP relied on facts found by the Hearing Panel but

reached a different conclusion from those facts regarding both appellant’s competence

and her integrity. For example, the Hearing Panel credited the statements of the five

physicians who had observed appellant’s performance, but it rejected their concerns,

concluding that appellant was sufficiently skilled notwithstanding their criticisms. In one

instance Dr. Watkins had criticized appellant’s use of vacuum extraction on a baby in

distress. The Hearing Panel viewed appellant’s conduct as a “reasonable exercise in

judgment.” The ARP, however, cited this incident as an example of an observer’s

negative assessment of appellant’s judgment. It formed the opinion that appellant’s skill

was “substandard for the Hospital.”

Similarly, the Hearing Panel acknowledged that appellant had violated the

observer condition; it determined, however, that appellant had not intentionally frustrated

the requirement. She had successfully arranged an observer for six of nine abdominal

surgeries she had performed, and she had “clearly tried” to find one for two of the three

other surgeries. The Hearing Panel thus concluded that any breach was “understandable.”

The ARP, on the other hand, was unwilling to excuse appellant’s violations.

It is apparent from the analyses of these two panels that the ARP disagreed

primarily with the ultimate judgment, not the factual findings, of the Hearing Panel. In

the ARP’s view, denial of privileges was warranted based on any one of the grounds

proved by the MEC. Appellant maintains, however, that “[t]o substitute the Board’s

members [sic] own medical opinions was error.” Apparently, in her view the Board was

not permitted to overturn the recommendations of the Hearing Panel if the latter’s factual

findings were supported by substantial evidence. She cites neither case authority nor a

provision of the bylaws to support this position. If the Board is not authorized to reach a

different medical conclusion than the Hearing Panel, what then, is its function? The

Board, like the appeal board in Hongsathavij, is the final decision-making entity. If the

governing body has applied the correct standard of review, as the ARP and Board did in

this case, judicial scrutiny is focused solely on whether substantial evidence supports the

governing body’s decision, not the recommendations of the committee or panel that hears

the evidence. If the court were to review only the latter, “there would be no purpose for

the bylaw provision [that] permits review of that decision by the hospital’s governing

body, which then issues the final administrative decision.” (Hongsathavij, supra , 62

Cal.App.4th at p. 1136.)

“A hospital is required to establish high professional and ethical standards and to

maintain those standards through careful selection and review of its staff.” (Unnamed

Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 617, citing Rhee v. El Camino

Hospital Dist., supra, 201 Cal.App.3d 477, 489.) ” ‘[I]t is not the function of reviewing

courts to resolve differences of medical judgment.’ ” ( Bonner v. Sisters of Providence

Corp. (1987) 194 Cal.App.3d 437, 447.) Our task is instead to determine whether the

Board’s decision to deny appellant’s application was supported by substantial evidence.

(Hongsathavij, supra, 62 Cal.App.4th at p. 1137.)

b. Sufficiency of the Evidence

As noted earlier, our task on appeal is the same as that of the superior court. If the

Board properly adhered to the substantial evidence standard, we review the

administrative record as a whole to determine whether the Board’s decision is supported

by substantial evidence. ( Hongsathavij, supra, 62 Cal.App.4th at pp. 1135-1136.)

Because we have found that the Board did apply the correct standard of review, we
independently examine the record before us 8 to determine whether substantial evidence
supports the Board’s decision to deny appellant privileges.

” ‘The substantial evidence rule provides that where a finding of fact is attacked on

the ground it is not sustained by the evidence, the power of an appellate court begins and

ends with a determination whether there is any substantial evidence, contradicted or

uncontradicted, which supports the finding.’ [Citation.] The court must consider the

evidence in the light most favorable to the prevailing party, giving him the benefit of

every reasonable inference and resolving conflicts in support of the judgment. [Citation.]

The court is without power to judge the effect or value of the evidence, weigh the

evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in

the reasonable inferences that may be drawn from it. [Citation.] Unless a finding,

viewed in light of the entire record, is so lacking in evidentiary support as to render it

unreasonable, it may not be set aside. [Citation.]” ( Huang v. Board of Directors, supra,

220 Cal.App.3d at pp. 1293-1294.)

Code of Civil Procedure section 1094.5 “clearly contemplates that at minimum,

the reviewing court must determine both whether substantial evidence supports the

8
Only excerpts of the hearing transcript are contained in the administrative record.

administrative agency’s findings and whether the findings support the agency’s decision.”

(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,

514-515.) “[I]mplicit in section 1094.5 is a requirement that the agency [that] renders the

challenged decision must set forth findings to bridge the analytic gap between the raw

evidence and ultimate decision or order. . . . By focusing . . . upon the relationships

between evidence and findings and between findings and ultimate action , the Legislature

sought to direct the reviewing court’s attention to the analytic route the administrative

agency traveled from evidence to action.” ( Id. at p. 515, emphasis added.)

The ARP focused on issues of both appellant’s competence and her ethics. It

described the October 7, 1998 surgery in which Dr. Sugar was concerned about

appellant’s “apparent inexperience” and “worried that if a difficulty occurred, Dr. Jensen

would not be able to address it properly, and the baby could die.” This description

accurately reflected Dr. Sugar’s testimony. The ARP also noted Dr. Watkins’s accounts

of the two procedures he had observed, the delivery in which she had used vacuum

extraction on a compromised baby and the surgery in which she had failed to react

immediately to a severed artery. The ARP acknowledged the testimony of Dr. Ross, who

supported appellant, but pointed out that this physician, who was in practice with

appellant, was the only witness (other than appellant herself) who expressed confidence

in appellant’s ability. This, too, was an accurate representation of the facts in the record.

Both the Hearing Panel and the ARP agreed that appellant had failed to comply

with the conditions of her temporary privileges. Unlike the Hearing Panel, however, the

ARP refused to excuse the violations and concluded that appellant’s “ethics were

insufficient.” As for her lack of truthfulness to Dr. Falkoff, the Hearing Panel found that

appellant was “probably the lead surgeon” in the procedure in which she had told Dr.

Falkoff she had assisted Dr. Yaqub. The ARP agreed with this finding, which was

supported by the documents in that patient’s medical file and the sworn statements of

three eyewitnesses. The ARP took the next inferential step in concluding that appellant

had “lied to the Chief of Staff about whether she [had] performed the surgery.” This was

a permissible inference based on the evidence, and it permitted the further conclusion that

appellant’s ethical standards did not merit staff membership at the Hospital.

Appellant offers no authority demonstrating that the ARP violated any of the

bylaws or any provision of state law in reaching these conclusions. On the contrary, “a

hospital [that] closes its eyes to questionable competence and resolves all doubts in favor

of the doctor does so at the peril of the public.” ( Rhee v. El Camino Hospital Dist.,

supra , 201 Cal.App.3d at p. 489; accord Webman v. Little Co. of Mary Hospital (1995)

39 Cal.App.4th 592, 601). Indeed, it is the policy of this state “to exclude, through the

peer review mechanism as provided for by California law, those healing arts practitioners

who provide substandard care or who engage in professional misconduct, regardless of

the effect of that exclusion on competition.” (Bus. & Prof. Code § 809, subd. (a)(6).)

The ARP sought to correct the disparity between the facts established by the

evidence and the Hearing Panel’s determination that the Hospital should grant appellant

privileges. Because the ARP’s findings are supported by substantial evidence and its

conclusions are supported by its findings, we are compelled to conclude that the Board

did not abuse its discretion in denying appellant’s application for privileges. The superior

court therefore properly denied the petition.

The judgment is affirmed.

Disposition

______________________________

Elia, J.

WE CONCUR:

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Premo, Acting P.J.

_____________________________

Mihara, J.