*1 July No. 31198. [L.A. 1980.] MILLER, Appellant,
DONALD Plaintiff and A. CENTER, and Respondent. EISENHOWER MEDICAL Defendant *4 Counsel and James Newman, Marsh, & Bruce H. Newman
Volk, Karp, Gralla , and Appellant. for Plaintiff H. Karp Mour, Patrie Carl Aronson, Weissburg, C. & Albert Weissburg Defendant Jr., Schwab for B. Douglas Robert W. Lundy, Hooper, Respondent. *5 Hassard, Huber, David E. Howard Hassard, & Bonnington, Rogers Amici Curiae on behalf Defendant as Singer Willett and A. Robert and Respondent,
Opinion Miller, and a licensed
MANUEL, physician Plaintiff DonaldA. J. for a writ of his denying petition from a appeals judgment surgeon, Center, a pri Medical Eisenhower defendant compel mandate sought and membership him staff vate, to grant nonprofit hospital corporation, its hospital facility. privileges of hear- transcripts court on the to the trial
The cause was submitted review committees review and appellate judicial before defendant’s ings facts, as ap- The underlying letters and documents. well as various therefrom, as follows: were in substance pearing of the a member Plaintiff, physician a board certified family Indio, in practicing has been Academy Family Physicians, American at the Eisen- membership He first sought California since 1970. Center, in Palm Desert owned hower Medical private defendant, was application subsequently but by operated him he 1972. After denial reapplied withdrawn in 1974. was de- Again application he application again reapplied nied, request pursuant for plaintiff’s subsequent hearing medical staff was also denied as bylaws being untimely.1
In plaintiff reapplied for medical staff at Ei- again his Along senhower. he submitted letter the application names of 25 physicians whom medical executive committee the hospital might contact recommendations concerning suitability mem- references,3 After comments from all bership.2 soliciting plaintiff’s the medical plaintiff executive committee informed that his application had been denied “on the basis of from recommendations received refer- ” ences furnished letter.... by you your
Plaintiff thereupon made application for a timely hearing before the (See ante.) review judicial committee. fn. He also requested copies recommendations the basis of which his had been denied. He was provided with a compilation responses made to (see 3, ante) each question fn. but was denied the names of the physi- cians provided who had particular responses on the ground that confi- dentiality necessary order to maintain a viable application “[i]n process,...”
At the hearing before the review judicial plaintiff committee *6 behalf; appeared his own the medical executive committee was rep- bylaws provide hearing 1The that must be requested days within 10 of the of notice Apparently plaintiff denial. the explicitly was not right made aware of his hearing to a requisite period for requesting it of application, although denial his 1974 following he was so informed of denial the 1975 which here concerns us. (See Community Hosp. (1976) Westlake v. Superior Court 17 Cal.3d 477-478 Cal.Rptr. 410].) 551 P.2d 2Apparently substantially greater this was a number of references than was custom arily by applicants submitted staff membership. response In question to a at the judicial subsequent hearing plaintiff review committee indicated that in of pre view his rejections thought prudent vious he had to provide references from all fields practice. medicine which were involved in his (1) 3The following questions: long references were asked the “How you have known physician?”; (2) professional (3) this formation on his are capabilities?"; provide “What his “Please in competence (4) physician"; you as a “Do feel he would anbe asset to Staff?”; our Medical “Comments.” that plaintiff's The latter reported resented one of its members. from “good support standpoint your profes- references him gave train- competence, adequacy your sional your knowledge [the] with “came plaintiff up wanting” but that the committee felt that ing” an whether he would be question received on respect opinions ante.) (See permitted Plaintiff was asset to medical staff.4 fn. his All testified fa- four medical as witnesses on behalf. present doctors of the medical each vorably regarding plaintiff’s competence; was staff. One opinion that would be an asset the medical plaintiff indi- he “a which impetuous things cated that he was sometimes little about that but concerning practices procedures wanted be done” An- “in the most were constructive ideas.” long very run of these ideas other, to a concerning areas conflict responding question possible others, stated that he had relationships” although “interpersonal “rumors” he had himself neither nor experienced any heard observed third, A as “a plaintiff per- such conflicts. controversial characterizing son,” went his explain on to that he had reference to tendency himself the evaluation express quite forcefully vigorously another or the competence example, running physician, medical institution. questioned also a number of hearing regarding
Plaintiff was matters, his the circumstances surrounding departure including (Illinois) an at the Cook some internship County from program no that lat- earlier. he had received notice years Protesting ter to be at the and that hearing, a matter of subject concern it, he nev- therefore was not an exact account of he prepared provide kind,” the “a definite of some disagreement ertheless indicated that recall, from departure of which he could not had precipitated details and the and comple- at Cook program County Hospital resumption internship tion of his at another institution. the medical executive commit- upheld review committee judicial decision, was based “upon its conclusion
tee’s stating Doctor Miller’s exists concerning determination that sufficient doubt favorable, 15 were some enthusi responses question approximately of 22 to this 4Out *7 of remaining clearly four were Two astically responses, so. Of the seven unfavorable. dis “Very person. controversial Has been simply: “No.” One answered: these answered knowledge plans Dr. “I have no Miller’s in other situations.” One answered: ruptive knowledge physicians do of several Medical I have regarding Center]. [Eisenhower feelings they would think not.” whose are capabilities concerning plaintiff’s professional or were comments There no adverse physician. competence his as a III, the work with as stated in Article Section ability to others Medical Staff Bylaws.”5
Plaintiff thereupon appealed the decision of the review com judicial (board), mittee to the medical center’s board of trustees in provided the bylaws.6 requested granted He and was the to be right represented counsel at the in by and witnesses his behalf. hearing present Prior to the his counsel hearing requested provided that he be with the names those doctors who had the provided recommendations negative reflected in the compilation furnished to previously plaintiff. Counsel for the board, responding indicated that these names request, would not be disclosed for reasons of His letter also stated: “The confidentiality. basis which Dr. Miller upon has been refused admission the Medical Staff 2(a) failure to with Section of the comply Medical Staff in By-laws particular, and his failure to document his good reputation ability to work with others. The were facts at following presented or will hearing at the presented review to appellate augment the record. 1. The failure to disclose at the the reasons for his hearing [¶] termination from the internship at Cook County Hospital. This was withheld despite questions direct regarding this. 2. The reasons for [¶] the termination of the residency Cook County Hospital which [sic] directly relate to the in qualifications 2(a). Section 3. The letter [¶] Gittleman, from Martin S. Administrator of Indio Community Hospi tal, regarding Dr. Miller’s to work with A ability others. 4. letter [¶] setting forth gross which Dr. Miller wrote to inaccuracies the Compre 5The provides part “Only physicians indicated section in relevant as follows: and den California, practice tists licensed to in the State of who can document their background, experience, training competence, and demonstrated their adherence to the others, profession, good reputation, ethics their their and their to work with adequacy with sufficient any patient to assure the Medical Staff and the of Trustees that Board care, by given high quality treated them in the will be of medical qualified (Italics added.) shall be on the Medical Staff.” VIII, time, governs grounds, bylaws appel 6Article section 4 of the and nature provides: Appellate review d. “d. Nature late the board. Subsection thereof proceedings an appel Review. The late provided the Board of Trustees shall be the nature of committee, judicial hearing hearing based record of the review before the discretion, governing body may, accept or writ its additional oral subject provided rights ten evidence at the to the same of cross-examination or confrontation judicial hearing. right party present Each have the review committee shall discretion, position appeal, written statement in of his and in its sole support may appear party representative personally allowed, Board of Trustees make oral allow each argument. argument, At of oral if Board of the conclusion may thereupon Trustees at a time convenient to itself conduct deliberations outside presence appellant respondent representatives. their of Trust Board affirm, or, committee, may modify judicial ees or reverse the decision of the review discretion, its refer the matter further review and recommendation.” *8 hensive Health Association Planning which included an intemperate assault ... on Eisenhower Medical Center. 5. The existence aof [¶] sufficient of negative number comments or lack of comments on re from which sponses Dr. Miller’s references indicate his inability work and, with cooperate others therefore results in his failure to meet Medical present Staff at the time.” requirements doctors called by two additional were hearing
At the review appellate that had a plaintiff Each testified executive committee. the medical that with his One stated colleagues. along poorly reputation getting friends in communi- few the relatively and “has he “creates dissension” with most members along that he “does not get the other ty,” however, Neither, personal- that he had indicated community.” medical in with the care plaintiff difficulty working together had any ly relationship a business had had prior Each of these doctors patients. the ownership with plaintiff been associated with one had plaintiff: plaintiff’s having concerning particular objections and had hospital a the hospital; oth- competing room at to run emergency contracted Three of four practice. with plaintiff er been associated had review judicial behalf before testified in plaintiff’s who had doctors at the review appellate testimony similar substantially committee gave difficul- experienced had ever any these doctors none of hearing. Again patients. care of mutual ty plaintiff internship 1961-1962 was plaintiff’s matter of termination County A the medical of the Cook Hos also raised. letter from director introduced; was that had been plaintiff was therein indicated pital his was leave which subse completion internship, asked to before he “because did not assume his completed hospital, another quently and his second patients.” Apparently responsibilities also letter presented, explaining letter from the same party his an un taking dismissal involved plaintiff’s the circumstances was examined at some length vacation.7 Plaintiff authorized one-week of the incident the details concerning his own and counsel opposing review committee them at the judicial to recall alleged inability and his no notice of any he had been given he Again protested hearing. was to internship that the matter of his latter prior hearing kind execu of concern medical had been a matter be raised there or had He indicated that he application.8 in its denial of his tive committee occurring 7The second us. Discussion at the letter not included in record before however, hearing, appellate provides review a clear indication of its contents. above, committee plaintiff 8As indicated had that the medical executive been advised received references had denied “on the basis of recommendations from
623 answered the best “to but.. couldn’t my ability recall the exact .just time, details” at that I hadn’t that known was a problem.” “[s]ince refreshed his Having the by interim means of memory contacting involved, certain parties he stated that he had now a vivid recollection of the matter and was to to fully prepared respond questions concerning it. He proceeded to do so.
The medical executive committee also introduced a which letter directed plaintiff had the summer the preceding to executive director of the Comprehensive Health In Planning Association. this letter plaintiff voiced strenuous the an objection to for more granting application hospital beds one of by the area at hospitals, one that suggesting point the opposition to had been pursuant silenced to a secret agreement between the hospital and the Eisenhower subject Medical Center to relevant suppress information. The letter also contained de rogatory remarks the establishment of the concerning Eisenhower Medical Center. letter, Plaintiff was questioned about this extensively it, motivation the writing and factual bases its alle upon which gations were grounded. He conceded that certain statements contained within it have been might inaccurate or but “presumptuous” indicated that he had been time of upset the its what writing by he perceived to be a plot to favor hospitals certain at one end Coachella Valley at the of another expense bed hospital having in Indio. adequate space the
Following on March hearing was informed plaintiff by letter that the board had “determined that pro- substantial evidence was duced, at both Committee your Judicial Review and hearing before the hearing Appellate Board, Review Committee of this to sup- port the previous conclusion of Medical Staff that do not meet you your He you furnished had also been subsequent letter....” advised a letter furnishing compilation responses him a references’ Medical Ex- “[t]he ecutive based Committee its decision these recommendations.” Valley years 9The following letter closed on the note: “Problems in our started five recall, ago you with the additional As will in order Eisenhower Medical Center. [i/c] attempt justify community, the need for those additional beds in our the million project strictly gimmick, aires who Stanford supported a tax subscribed to University perform to establish need for beds To their project research here. knew, dismay, frankly and was no already report as most us stated that there community, need for additional beds in our and those individuals to look to advised they community areas if wanted ser geographic truly supply needed medical Nevertheless, constructed, political regional vices. Medical Center was due to and influence, quality organization community of medical in our bad care ly single disrupted....There rhyme adding or reason no bed distortion, only agreements Coachella Valley, because of deliberate secret based, pow misrepresentations your original have those selfish which decisions were proceeded ers thus far.” *10 the for Medical of Eisenhower requirements membership the Staff the Medical Center. the of Trustees has affirmed Therefore Board [1i] action of- the such Medical Staff and denied your application membership.” 29, 1977,
On March more than after the date of the aforesaid year letter, commenced the instant The trial court con- plaintiff proceeding. cluded that the were rational and not requirements or that all arbitrary, capricious, public policy; contrary proceedings had been in a with fair procedure; conducted manner comporting the of had not resulted from or discrimina- rejection plaintiff arbitrary conduct; motivation was substantial evidence in tory or there made; the that the of support of determination defense laches was from applicable. appeals ensuing denying Plaintiff judgment petition.
I
We first address the issue of laches.
v. Board
Service Commis
As we
out in Conti
Civil
pointed
337,
(1969)
617],
461 P.2d
Cal.Rptr.
sioners [82 unreasonable in requires delay bringing affirmative defense of laches complains in the act about which plaintiff suit either “plus acquiesence (Id., 359, at p. from resulting delay.” or the defendant prejudice must omitted.) rather it be affirma presumed; fns. never Prejudice in order sustain burdens of demonstrated defendant tively (Id., 361.) at Gen p. of evidence on issue. production and the proof laches is a of fact to be question the existence of erally speaking, circum all of the light applicable the trial court determined a lack of substantial stances, manifest or injustice and in the absence of (See will be its sustained. Rouse the evidence determination support 316, 437]; (1966) Cal.Rptr. 242 323 Cal.App.2d v. Underwood [51 147, 158 (1966) Cal.App.2d Cal.Rptr. 239 Verissimo Teixeira v. [48 Desert, Inc. v. Board Su Palm also Concerned Citizens 496]; see 338]; 265-266 Cal.Rptr. 38 Cal.App.3d pervisors [113 44].) 152 (1970) Cal.App.3d Cal.Rptr. v. Saito McClung of an cases review administra seeking that in We also suggested have supporting finding reasons for be substantial there may tive decision statute applicable the period “far less than” delays of laches for 3; Cal. Ad see also (Conti, Deering, fn. p. supra, of limitations. 125-127; 1966) 8.5, id. (Cont.Ed.Bar pp. Mandamus § ministrative 8.5-8.5A, 86-88.) 1977) pp. (Cont.Ed.Bar Supp. §§ trial lacks sub urges finding Plaintiff that the court’s laches stantial It is that even if the support argued one-year- record. board’s final decision and the between the and-seventeen-day delay unreasonable, suit the record offers commencement of be deemed no defense—i.e., basis which the second element either ac quiescence part on his to the defendant—could prejudice reasonably that, above, be found to It is respect exist. notable indicated record; the matter was submitted on the administrative defendant solely *11 made no effort or acquiescence to introduce evidence of The prejudice.10 record contained nothing indicating acquiescence plaintiff’s part to the board’s decision.
With respect defendant, to the however, matter to the prejudice defendant calls our attention to in provisions bylaws to the effect that all staff are of appointments one duration with year’s reappoint- ment subject to annual a review through process involving report by the departmental chairman. These it is are provisions, argued, clearly intended to insure that all physicians the staff currently admitted meet the standards for admission. Defendant concludes that plaintiff, more than delaying before review year seeking judicial decision, board’s presented court with an application evidence and, which was such, necessarily “stale” as not could form possibly Thus, basis for current admission. it is urged, prejudice clearly appears. We do not agree. respect itself, With form application which is a part of the record, instant it appears the form filled by plain- out tiff at the time original application in 1971 was thereafter used by defendant as the basis of all subsequent 1972, applications—i.e., 1974, involved, and the application here 1975.11 Insofar matters aliunde the application considered, form are to be there is no showing made that members the medical staff seeking reappointment are re- quired to provide any new information additional documents con- their cerning qualifications each nor is it year, suggested or offered to replication 10PlaintifFs failure to file a requires the answer that all ultimate facts accepted (See contained therein be unless by proof. as true countervailed May- Hunt v. (1948) or & 31 426]; Council Riverside Cal.2d 623 P.2d Most v. First [191 Diego (1966) Cal.App.2d 669].) Nat. Bank San 246 Cal.Rptr. 432 The an [54 however, allegations concerning prejudice, largely swer’s were conclusory in nature and any in event were in the met material administrative record. specifically 11The form reflects the in action taken 1972 and 1974, and its inclusion the record at defendant’s instance would in the indicate ab any sence of other similar form in the record that it utilized processing was also application. of the 1975
626 be shown that have any relevant occurred changes plaintiff’s qualifi- cations. The no record reflects recent alterations in the appointment or in process the situation of staff De- regarding availability positions. fendant, short, This asks that we we simply presume prejudice. may laches, conclude, not do. trial court’s we is not finding supported by the evidence.
II
Plaintiff,
Rosner
Eden
on cases such as
principally
relying
(1962)
375
Cal.Rptr.
627 (Lewin or public policy St. procedurally Joseph Hospital unfair.” Orange Cal.App.3d Cal.Rptr. 892], italics added.) token, attest, the By same and as the cases we have cited a rule governing admission of qualified to staff physicians membership hospital,12 whether any public or cannot stand if private, establishes a standard for which admission or substantively irrational otherwise un- reasonably susceptible of arbitrary discriminatory application.13 We turn to the whether question the rule before us said can be to suffer from this failing.
Plaintiff’s contention specific relates aspect of rule subject permits which exclusion from staff basis of a solely to work with In physician’s others.” he “ability respect, urges, rule is subject case,14 similar in our bylaw involved Rosner supra, which, indicated, we there posed substantial danger application “as a subterfuge where considerations no having relevance fitness are (58 Here, present.” 598.) Cal.2d he p. urges, bylaw question poses same the exclusion of danger, permitting one otherwise im- peccable qualifications on the which, basis of personal qualities while perhaps offensive some, or abrasive to lack any demonstrable relation- ship or fitness. capability surgery, 12The as a fact that defendant “has facilities trial court found *13 medicine, together radiology angiography, and with other laboratory,
complete nuclear facilities, alleged continuing by plaintiff, program and a education for its staff.” It is belief, only “is the by for that defendant and denied defendant lack of information facilities; these trial court made no possesses in the a number of the hospital area” that out, however, application of finding “the the point. recently pointed on this As we have judi The depend ‘monopoly’ power.... law on the of common cial rule does not existence rather, entity of the inquiry, consistently practical power on the has been focused (Ezekial Winkley substantially economic interest.” question important in to affect an Cal.Rptr. 418, 267, (1977) 32].) 20 572 P.2d Cal.3d 277 [142 course, that, concluding, by words 13In so we no means declare in the of the dis of senting apply opinion, applicable public hospitals equally staff admission to “rules for 636.) opinion, hospitals.” (Dis. opn., post, pur We note that while private p. to at the state, adopts Appeal a Court of porting quarrel to with rule which we do as its own the privileges may for admission opinion explicitly which declares that “standards to staff ambiguous arbitrary vague provide danger be ‘so a substantial dis not to of added)—and (dis. post, p. application’” opn., in their italics then crimination very proceeds apply to standard to case before us. that rare the bylaw permitted 14The in Rosner based of the appli exclusion determination others, cooperation, ability get along cant’s apparent “‘characteristics of to with general qualifications personality opinion of which insure in the would [creden committee, applicant that the temperamentally psychologically would be tials] for cooperative hospital suited the functions with other members of Medical Staff (58 596.) and with other hospital personnel.’” p. Cal.2d 628
We do not Not is Rosner on technical only distinguishable agree. but the there bears marked differences from grounds,15 bylaw involved the one which here concerns us. In the first the Rosner place bylaw others,” in spoke terms of whereas “apparent along to ability get the instant its focus others.” bylaw places on thfe work with “ability We perceive a substantial distinction between these two requirements, the second the focus from to the shifting general compatibility ability in the functions. cooperate performance More hospital significantly, Rosner, here in must in our view be bylaw question, unlike that read to demand that there be a demonstrable nexus the appli- between cant’s with” ability to “work others and the effect on the ability short, quality patient care What is that an provided. required, applicant demonstrate that he with” has “work others ability which, in a hospital environment manner in the of the bylaw, words will insure in the will patient “that treated any hospital giv- by [him] en a high of medical care. ...” quality construed,
We do not this believe that as so be said to bylaw, may suffer from which plaintiff the substantive irrationality complains. (Cf. Morrison v. State Board Education 230- Cal.3d 461 P.2d It cannot Cal.Rptr. 375].) be denied that is, providing patient care high quality quite properly, primary concern of all bears the hospital institutions. governing authority is achieved ex- responsibility assuring goal greatest tent its decisions into possible, and to medical staff must take relating account all factors which have a it. We are legitimate relationship not that an to work with medi- prepared applicant’s say cal not have a clear effect on personnel hospital setting may hospital a local district 15The involved in Rosner one maintained (Health & governed Law. provisions as such was of The Local District Code, eligi Although language applicable to seq.) our decision contains Saf. 32000 et § eligibility in holding narrow was that the standards bility general, standards in our *14 32128, Safety Code which hospitals forth in and section district were those set Health general competence suit only to and made no reference to then constituted looked as eligibility. Section has since been hospital a ability practice for as condition of Provision for hospital of a shall include “2. provide that the rules district amended as the stan reappointment provided medical staff and of procedure appointment Hospitals.” on Accreditation of of the Joint Committee dards [.r/c] which Hospitals, of Accreditation of bylaws the Joint Commission on The model of Code, 452, provi- (h)), eligibility a (Evid. contain staff judicial subd. we take notice § (See Joint Commission we here consider. substantially identical the one which is sion Bylaws, of Staff Medical Guidelines for Formulation Hospitals, on Accreditation of Ill, (See San Anto- 7.) generally Anton v. (1971) 2(a), Regulations p. art. and § Rules 567 P.2d Cal.Rptr. (1977) 818-820 Community 19 Cal.3d Hosp. [140 nio 1162].) (See Note, of level care patient provided. generally, Staff Privileges: The Need (1965) 916.) Legislation 17 Stan.L.Rev. however, What we do in is that order to avoid the of arbi- say, danger trary irrational that concommitant such danger a used bylaw be “as a may subterfuge where considerations no having (Rosner, 598), relevance to fitness are at present” must be supra, p. read to demand a in cases of on this that showing, rejection ground, an with applicant’s inability “work others” in the is hospital setting such to present as a real and substantial that danger patients treated himby might receive other than a of medical care” “high quality facility he if were admitted to membership.
Defendant
that we
not
number
need
so far.
on a
of
urges
go
Relying
decisions from other
that
v.
jurisdictions—most notably
Huffaker
Bailey
P.2d
highly conjectural.” subject bylaw, defendant, in the manner would preted suggested by permit exclusion of an otherwise on such qualified physician just “conjectural” Ac- grounds. preclude and to this we must danger, in order insist cordingly, upon we narrower have indicated.17 interpretation
Ill record, there what must we encounter be termed Turning a the content of state of considerable confusion the standard concerning have appears to be On the one hand it been the view of the applied. that a showing significant medical executive committee limitations an with other “get along” hospital personnel applicant’s ability in and itself under the rejection subject bylaw. sufficient to justify have been view that the appears plaintiff’s only On the other hand rejection which the would on bylaw permit showing subject in applicant’s would one grounds incompatibility indicating with other doctors harmoniously to work effectively Faced with these particular patient. points care of a joint conflicting view, (i.e., bodies involved the members of two deliberative committee) review at sever review and the appellate committee judicial as the correct standard to be al manifested points uncertainty applied.18 note, Hawaii, heavily upon by relied defendant we a case Supreme 17The Court itself, pointed of team a view: has been out that ‘considerations stated similar “It has for skill in recommendations
spirit cooperativeness important can be as technical or, competence hospital practice way, professional appointments; put another should, for theory, qualities cooperative needed according include to modern Note, 17 L.Rev. Legislation, Stan. Privileges: The Need staff work.’ Staff 900, cooperative personality does not (1965). doctor have a requirement that a mean, however, merito upheld will be for other than by hospital board that exclusion a physician’s been denial respect In it has held rious reasons. ‘[a] disharmony among the will cause application upon appointment the basis that his record the record. The clearly supported by persuasively must be medical staff disharmony prob clearly prospective that such persuasively indicate should also annoy merely displease not ably patient care and have an adverse on will effect (Silver Hosp., v. Castle Memorial physicians certain supra, and administrators' [Citation.]” 479, added.) Hawaii fn. italics at their the two deliberative bodies following by members of inquiries—posed 18The committee [judicial review hearings—are representative: member]: statement “Cone respective III, Article there Section membership, under qualifications Under point. coming question at this into I think that is ability to work with others and about in these occasions and on several been mentioned This attitude that has controversial me, get can’t a handle disturbing I because is somewhat and that recommendations that and I think it, I don’t understand to mean. supposed that is I don’t know what *16 The evidence reflected this The views. medical execu- divergence committee, tive concentrated its efforts on generally speaking, that establishing plaintiff, what was termed through frequently more “controversial” or “flamboyant” aspects. of his had personality, succeeded in a substantial alienating local medical com- segment Emphasis on munity. placed certain business which dealings doctors, plaintiff had had with other of his association in history doctors, with practice other and his alleged propensity litigation, readiness to express his views on the treatment practices of other doc- tors and made, however, hospital administrative matters. No effort was to establish direct19 link any between these considerations and their po- Plaintiff, tential effect patient hand, on care. on the other directed his efforts toward his level of medical establishing competence; he also establish, to sought particularly through cross-examination of hostile witnesses, that his traits had never resulted in personality dif- perceived in the mutual care ficulty of individual patients. us, indicated, here before bylaw provision as we have must be
read preclude to of an otherwise rejection qualified physician from point it is a fundamental explanation we need this hoped you and I would be able provide us with it.” to Counselor, [appellate getting “Simon review committee I’m lost here and I member]: question. want to ask they get along question always a Each time Dr. Miller asks this he refers to how care, patient questions they get along with his counsel asks of how with doctors, which, get now ability along where are we? Are we on his to with other ability get along concerning doctors or are we on his to patient with other doctors care? getting I’m lost in the shuffle and there’s lots of words.” through 19The tes- attempt point medical executive committee did at one to establish timony inability “get along” inherently that to with adverse effect other doctors had an patient the level of care: [attorney May question. “Mour one Dr. medical executive I ask committee]: Tarleton, looking ability get along hospital to milieu of in the entire efficient committees, working working patient and efficient of the staff which all bears care, that, you agree along meetings ability get would with that the in these staff your regarding physicians, relationship and with a fellow whether or it’s a one to one not patient, important quality patient care? the overall agree “Tarleton I would to that statement. [witness]: you agree you physician “Mour: And would that if who is disliked a rea- have ability sonably large get along will interfere with that physicians number of his fellow that it type quality patient and render that care? agree. “Tarleton: I would community is such that re- you reputation Do think that Dr. Miller’s in the “Mour: might gardless relationship particular you case that have had of the one to one general get along or work with others you reputation inability that his believe impair the patient render effective care or impair would quality patient care? inability say yes. I think Dr. Miller’s your I understand statement I would “Tarleton: ” get along people proven itself numerous times.... has *17 manifests an unless it can be shown that he membership medical staff which, reason with in the hospital setting by to “work others” inability character, a real and substantial presents danger of its particular than a “high him the receive other facility might treated patients by This stan- membership. medical care” if he were admitted to quality dard, view, is so broad as defendant conceives nor so in our neither hand, the one there well be circum- may narrow as asserts. On plaintiff with” stances in which a doctor’s limited to “work other ability it results in no demonstrable conflict the joint personnel, although be shown to have a clear care of individual nevertheless patients, might care” offered adverse effect on the overall of medical “quality to be offered the appli- therefore on care facility—and quality hand, we do not believe that that cant’s as well. On patients that a admission to physician seeking nexus be fact may presumed. is characteristics of personality shown to manifest membership find personally disagree- which other staff members or administrators view, in our to justify rejection able or is not in itself annoying enough, An otherwise competent physician, under the subject bylaw provision. “controversial,” abrasive, outspoken, hypercritical, considered although or otherwise offensive some of his hospital colleagues, personally function as a valuable member of nevertheless have the may be denied the to do opportunity and should not hospital community or resentments alone. To permit so as a result of animosities personal would, Rosner, in the words of question such application bylaw “as a where consid- subterfuge a substantial pose danger on this Rejection no relevance to fitness are present.” erations having therefore, when it can be shown can permitted, only basis is limited setting with others in the hospital to work applicant’s ability threat to the specific qual- would a realistic and pose in a manner which institution. at the patients of medical care to be afforded ity estab- us falls far short of the record before As we have suggested, made to link that was actually The sole attempt such a lishing showing. effect on to a foreseeable concrete characteristics personality plaintiff’s couched questions of two leading care is patient comprised the level of 18, ante.) common law (See Although fn. in vague generalities. “[t]he proceedings formal compel fair does not procedure of a requirement single nor adherence to a a court trial... the embellishments of all Orthodontists, (Pinsker Society Coast process” mode of Pacific 541, 555), hospital seeking must insist that a we 12 Cal.3d supra, qualified physician otherwise from an withhold staff with evi- forward to come must be prepared we here consider ground dence of a more concrete and specific nature—directed toward the indicated link establishing between conduct and potential effect— than that we here consider. however,
It that even if the determination reached suggested, *18 defendant lacks substantial on the basis of the by support evidence discussed, in above there is additional evidence the record to ample sup it. Particular is drawn to two areas of port attention reflected inquiry which, asserted, the record it is a basis on which defendant provide plaintiff’s veracity could have determined that properly subject (1) that his recollection of the de question—namely concerning faulty tails the termination of his at Cook surrounding internship County 8, ante, (see text) fns. 7 and cer accompanying tain libelous and untrue statements made allegedly by plaintiff his (see letter to the Health Comprehensive Association fn. Planning ante, text). short, It is that an accompanying urged, applicant’s veracity a matter which a board can certainly con properly sider in whether for staff determining requirements membership met, have been and that because the instant record reveals a substantial basis for determining plaintiff had been untruthful in the indicated respects, decision denying must be membership upheld.
We cannot In agree. the first place we are troubled by questions of fair notice. As out, we have pointed the administrative proceedings herein were initiated by plaintiff in the first instance after he was in- formed that his application for staff had been rejected “on the basis of recommendations received from references furnished” him in the letter his accompanying application. compilation of rec- ommendations which plaintiff subsequently received contained nothing relating to his veracity, there although were several which termed him “controversial” or “disruptive.” The latter characterizations formed the focus of the judicial review followed; committee which hearing was at this hearing questions concerning plaintiff’s internship were initial- ly raised—and it was here that there occurred the temporizations on which defendant now such places heavy emphasis. The judicial review committee upheld the prior rejection, its conclusion basing “upon determination that sufficient doubt exists concerning Doctor Miller’s ” ability work with others. . .. Upon determination, appealing plaintiff was informed letter that the basis ior refusal was his “fail- ure to document his good reputation his to work with (italics added); others” it was also indicated that the matter of his in- ternship, as well as the matter of his letter to the Comprehensive Association, the appellate
Health would be Planning explored it was. hearing—as
As we indicated in our second Pinsker decision 12 Cal. 3d {supra, 541), the common law of fair be satisfied requirement procedure “may one of a which afford a by any variety procedures fair opportunity such, for an applicant present position. As this court should not to fix a that must In- attempt rigid procedure observed. invariably stead, the associations themselves the initial should retain and primary a method which an ade- responsibility devising provides applicant quate notice him and a reasonable ‘charges’ against opportunity (12 omitted, added.) Cal.3d at p. fn. italics Here the respond.” form of adopted notice initial the medical upon plaintiff’s rejection by *19 committee, went, executive in while our view as far as it fell adequate short of him of the full advising scope pursued to be inquiry review committee that he had re- judicial hearing. stating been By jected “on the basis of recommendations received from references 3, (italics furnished added), letter 1975” it by you your September of had the effect of to him that the focus of further suggesting any pro- him ceedings requested would be those recommendations and by upon that his preparation for such similar proceedings might properly adopt circumstances, think, focus. In these we it lies ill in the mouth of defen- dant that suggest in his any uncertainty vagueness appearing answers at the review committee on the of his judicial subject hearing internship, which had occurred some 14 is to be inter- years previously, preted on his mendacity guile part.
There is another reason we think that defendant’s substantial yet why evidence what it as evidence of im- argument—premised perceives in this record—must be As we have paired veracity rejected. pointed out, the with dominant focus of all of the administrative proceedings which we are here concerned was that of to work plaintiff’s ability in a manner which would not hospital personnel impair qual- all of medical care offered. The attention of ity participants and medical executive commit- applicant proceedings—the contending tee, counsel, and members of each of the two delibera- their respective leaving trained this issue in a manner upon tive bodies involved—was out, however, this little doubt as to its As we have centrality. pointed compre- misdirected a failure to by attention was diffused and largely To applied. uphold the standard to be hend the true nature of of, which outside lay the basis of evidence determination thus made on 635 of, thrust would major inquiry or at least at the this periphery not, think, we in the circumstances. appropriate settled, course, the imposition
It cases involving is well of a action an administrative body, or other penalty disciplinary when are the evi charges it that some of the not sustained appears dence, will be body matter returned administrative all there is a doubt” as redetermination in cases in which “real been proper whether the same action would have taken assess (See (1955) ment of v. 45 Cal.2d the evidence. Bonham McConnell 304, 306 State Bd. Medical Examiners 502]; P.2d v. Cooper [288 630, (1950) 242, 593]; 35 252 18 A.L.R.2d see also Cal.2d P.2d [217 (1950) 155, v. Beach 35 Cal.2d 159-160 English Long City [217 22, (1963) P.2d 18 A.L.R.2d cf. 219 547]; Byrd Savage Cal.App.2d 396, 402-403 Strode v. Board Medical Examin Cal.Rptr. 881]; [32 (1961) ers Cal.App.2d 879]; 195 303-304 Steele v. Cal.Rptr. [15 (1958) L.A. 166 Civil Service Com. County Cal.App.2d [333 P.2d State 171]; Mast v. Board Optometry Cal.App.2d however, drawn, 91-93 A 148].) P.2d distinction has been be tween cases of kind and an for a those license involving or other such cases careful privilege, being suggested scrutiny (See of this nature requisite. is not Sica v. Board Police especially *20 (1962) 137, Commissioners 200 141 Cal.App.2d Cal.Rptr. 277]; [19 see also (1965) Hora v. & 233 City County San Francisco Cal.App. 2d cases, however, 379 Even in these it is inti Cal.Rptr. 527].) [43 mated that the existence of a “real doubt” determina probable tion of the administrative view of the evidence will body upon proper Sica, (See 142-146; necessitate a at pp. redetermination. Morris supra, Ins. 34 Unemployment Appeals Bd. Cal.App.3d Cal.Rptr. 630]; see also Cal. Administrative Mandamus Deering, [110 (Cont.Ed.Bar 1966) 5.41, 59.) p. §
We believe that the is instant case one which the principle “real indicated, doubt” should As we properly applied. have dominant focus of these blurred a failure proceedings drastically of the deliberative bodies involved—and indeed the and their parties counsel as well—to understand and own properly apply hospital’s standards for admission to staff membership insofar as concerned they an applicant’s ability to “work with” Although others. evidence was also presented matters, on other our of the record whole raises reading as a a significant and real doubt in our minds as to whether the deliberative involved, evidence, bodies had been faced with such they only the result that did. In case it is clear that they any would have reached content of the proper hospital’s stan- misconception concerning dards for admission resulted in a severe of the kind misapprehension for admission. In qualifications these circum- quality plaintiffs stances, course is to return the matter to defendant proper we think further administrative in order that undertake di- may proceedings rected to the assessment of for admission to its plaintiffs qualifications medical staff in of a of its standards. light proper interpretation is reversed with directions to issue a writ peremptory
The judgment aside its decision denying plain- mandate defendant to set directing either tiffs for medical staff application grant or, alternative, to undertake further proceedings of this light opinion. Newman, J., Richardson, J., Tobriner, J., concurred. J.,
Bird, C. MOSK, J. I dissent. private hospitals of this court impose upon
Once again
majority
(1977)
637 Blank as- prohibited. merely are agencies, public private, by any and cited Willis. sumed the issue arguendo of a
The
interference with
exception
operations
one
that may justify
in which the institution enjoys
arises in those instances
private hospital
status. From James v.
(1944)
If this has plaintiff hospital can establish that the defendant factually area, such a in its and that denial of staff at that monopoly has the effect him hospital profession, from preventing pursuing then he seek to invoke to those may procedures comparable applicable public hospitals. evidence,
In however, the absence of such I would reach the same Kaufman, conclusion as that of Justice in the Court dissenting Ap- a peal, position us urged upon amicus curiae California Medical in toto Justice Kaufman’s Association. Therefore I adopt opinion my own. It follows: I In dissent. effort to rescue one misguided litigant from the consequences of his own irresponsible irascibility majority preclude in the State of every hospital California from considering medical staff admission decisions factor vital to the competent oper- ation of a and the medical services— delivery high quality ability physician-applicant to work others. cooperatively
As noted, has been cogently “... it is difficult to understand how a hospital is to adhere to modern concepts hospital administration if it ” cannot consider the its staff members to .. . cooperate. (Note, The Need Privileges: Legislation Staff 900, 916.) Stan.L.Rev. “When the interest of considering patient, is not enough that his doctor possess the skills necessary of his profes sion. The absence of a compatible team could working together impair the doctor’s performance undermine the consequently effectiveness *22 (Silver of the treatment v. Castle Memorial Hospi given patient.” tal (1972) 475, 564, 53 Hawaii 479 “It 568].) P.2d has been [497 out that pointed ‘considerations of team spirit cooperativeness can be as important technical skill in recommendations for staff appoint
638
ments; or, hospital competence practice another put way, professional should, needed qualities modern include according hospital theory, (Id., 568, 4, quoting Hospi for staff at fn. from cooperative p. work.’” tal Need 17 Sir n.L.Rev. at Privileges: Legislation, supra, The Staff for p. 905.)
I rule do statement of the of law quarrel not with the majority’s not be “so vague standards for admission to privileges may arbitrary of discrimina provide danger as to substantial ambiguous (Rosner Dist. v. Eden Township Hospital tion in application.” their (1962) 592, 551, accord: 431]; Cal.2d 598 375 P.2d Cal.Rptr. 58 [25 Memorial Hosp. (1975) 45 Cal.App.3d Ascherman Saint Francis v. v. Concord 507, Community Hosp. Martino 507]; 513 Cal.Rptr. [119 Cal.Rptr. 255]; Wyatt Dist. (1965) v. 233 58-60 Cal.App.2d [43 Tahoe Forest Dist. (1959) 174 715 Hospital Cal.App.2d However, P.2d the standard 93].) the conclusion of majority is here at is rule the deci required by issue invalid under stated not sions or of public policy promote delivery nor does serve sound medical services. good to work “ability content of standard the substantive
Admittedly,
others,
high quality
to assure...
with sufficient adequacy
but “‘in the area
with precision,
be quantified
medical care” cannot
diffi
standards are
precise
staff privileges
fitness
medical
personal
selection
. The
subjectives
. .
if
to articulate.
impossible
cult
not
a board of
The governing
be
codified.
simply
minutely
cannot
necessary
prescribing
latitude
great
must
therefore
given
Bailey
(Huffaker
v.
....’”
applicants
qualifications
potential
v.
from Sosa
1400], quoting
P.2d
Dist., Community Concord 598; Martino v. p. at supra, Cal.2d Dist., For- Tahoe 59-60; Wyatt Hosp. Cal.App.2d supra, pp. Dist., view, 715.) In est at p. my 174 Cal.App.2d supra, others, standard, adequacy with sufficient work with “ability to care,” indefinite so vague of medical not assure.. .a high quality as to its invalidation. require *23 and in
Courts are laws required apply uniformly nondiscriminatory too, fashion to have no appear great difficulty so judges doing “reasonable,” cause,” even when with such standards as dealing “good and “abuse of discretion.” Courts are called upon every day apply standards the substantive content of which is no more definite than the standard here in question. jurisprudential technique insuring uniform and of most reasonably nondiscriminatory application legal standards is review for abuse of discretion. The same would technique well in As serve at hand. Court of problem Supreme Oregon stated in Bailey, supra, P.2d at 1399-1400: “Rath- pp. Huffaker er than the discretion at the outset for failure curtailing to define that event, which would be difficult to define in the court should any more look to the exercise of the appropriately discretion to see if has been abused.”
The trial court determined that not respondent’s decision to grant ap- pellant’s application for staff was supported substantial evidence and was not arbitrary and did discriminatory not constitute an abuse of discretion. The trial court’s determination was cor- clearly rect. the evidence Viewing most to the favorably and the judgment determination, administrative a duty entirely neglected majority, an abundance of evidence from which apparent could respondent quite conclude properly would, that appellant’s admission to staff with- out any redeeming justification, disruptive endanger quality of medical service to patients.
Dr. Russell Dunlop, a physician specializing general surgery prac- in Indio and a ticing member of the staff of respondent as well as the staffs of Indio Community Hospital Memorial tes- Valley Hospital, tified that appellant’s reputation community getting along bad; other members of the medical profession was that “Dr. Miller creates dissension.” That the entire staff at virtually Indio Community there; unhappy about on the staff appellant being that at least 10 named physicians on the staff at Indio Community Hospital had expressed to him their should not be feeling appellant staff and 4 other on that staff had physicians their expressed unhappi- ness with appellant’s all within the membership, preceding year. Dr. Dunlop stated that one of the reasons for appellant’s reputation was the manner in which he conducted the room at Indio Com- emergency when munity Hospital he was in of it. In charge Dr. Dunlop’s opinion appellant admitted too many people room and over- emergency *24 into the red “out of hospital the in an to attempt get
treated such people had Moreover, appellant Dunlop’s opinion it was Dr. the black.” conduct his Community Hospital of Indio the reputation damaged testi- Dr. Dunlop In this regard room. of its charge emergency while to a group was sold Community Hospital fied that when Indio the sale as a condition of the sellers the purchasers required physicians, contract; not en- would they room appellant’s emergency to off the pay in charge if remained appellant transaction ter into the room. emergency in Coachella Valley practicing Tar who had been
Dr. Harold letón members of with most along did not get testified that appellant to get stated that Dr. Tar letón also medical community. milieu, work and committee including in the hospital with others along care and that work, patient the overall quality important re- impair with others would or work along appellant’s inability get impair care and would render effective patient spondent’s ability furnished. of care quality well with others was verified to a large to work
Appellant’s inability Dr. Pinnell stated that example, even his own witnesses. For degree had a number of different Coachella appellant brought physicians with him and that of them had become dissatis- to work Valley many fied, with appellant. because could not apparently they get along addition,
In that when was asked appellant cannot be overlooked terminated from his in- whether he realized he had been involuntarily he evasive and less than candid Hospital at Cook ternship County gave was introduced from answers. At the review a letter appellate hearing that appel- Cook which showed County Hospital medical director of at Cook internship County lant served seven months of a rotating 1962; “D” that he received from 1961 until July February examination, cooperation attitude toward (poor) patients, for “physical and and hospital personnel, personality appearance”; 1, 1962, before the completion that he was “asked to leave on February did assume his responsibilities of his because he not Internship, “didn’t remember” It is patients.” unlikely appellant residency. of the termination of his the details invalidation compel do not majority The cases upon by relied Dist., member- supra, Forest Hospital In v. Tahoe Wyatt standard. limited medical staff was to licensed ship physicians surgeons insures, in the judgment “whose background, experience training *25 Directors, the Board of that admitted... treated... will any patient {Id., be the best care and skill.” at professional given possible 712-713.) that the statute did not After autho- pp. holding applicable rize the a standard the “also... noted” that promulgation of such court (174 715.) Cal.App.2d the rule was too and uncertain. at The vague p. are is the best court’s rhetorical “What questions revealing: possible care and Would limit the of medicine in professional practice skill? the Tahoe District to and who are physicians surgeons recog- respective nized authorities in their fields? what standards do By the directors who are all individuals determine what is the lay best possible is care and The standard set such that professional skill? admission up {Id., staff can whim of the to the on the and directors.” depend caprice added.) italics Dist.,
In Martino Community Concord the Hosp: supra, of bylaws the medical staff the authorized credentials committee “‘to conduct a at which shall hearing the be examined and in applicant orally writing, tests, written, be such given oral and as the Credentials Committee (233 54.) shall in its discretion determine.’” at The Cal.App.2d p. court concluded: forth requirement examination set in the medical “[T]he bylaws.. staff . the credentials to authorizes committee that an require take tests far more applicant covering competence than his his own field It particular of medicine. is.. . that the apparent examination re- quirement couched in such and vague ambiguous as to language the furnish committee with no for adequate standards said re- applying (233 60.) at quirement.” Cal.App.2d p. Dist., v. Eden Rosner Township Hospital
Cursory analysis supra, However, does lend some the to more de- support majority’s position. it is tailed discloses that not There the analysis controlling. governing an provided instruments “that for shall applicant submit character, of worthiness of excellence as proof reputation to profes- ethics, sional and for and general suitability practice, that the hospital credentials committee in the shall determine his investigating applicant others, ‘characteristics of cooperation, apparent get along would general qualifications which insure in the personality of the opinion committee that the applicant would temperamentally suited for psychologically cooperative hospital functions with members other of the Medical Staff and with hospital personnel.’” (58 596.) at Cal.2d p. interpreted applicable provi- court first restrictively statutory district was not
sions and held that public statutorily court, authorized such a standard staff admission. Then the adopt that “[m]oreover,” stated the rule standards are so vague as to a substantial discrimina- ambiguous provide danger arbitrary However, tion in are invalid. court’s application their rule of the standard referring temperamental was to that un- part (58 598); Cal.2d hospital practice p. suitability paragraph rule, forth setting discussing void-for-vagueness part with others applicant’s ability get along standard relating respect not mentioned. What court stated with part *26 doctor, “The fact that a due to criticisms made himby standard was: hospital to treatment or has been ‘unable relating patients practices, of hospital with’ some or is not a sufficient personnel to doctors get along him use of to exclude from the hospitals. Obviously physicians ground for a or as proper will not to the treatment to agree patient always (58 p. added.) in a Cal.2d at italics hospital.” the proper practices interpreted A decision cannot be without reference judicial properly with of the standard in- respect part dealing its With to that to facts. others, said what it to with what the court and meant get along where the to inability get along the decision was that in Rosner proce- of treatment and is to have resulted from criticisms others shown substandard, were even the negligent, dures that the felt applicant that The staff on account. facts cannot be denied admission applicant treatment, pro- had criticized certain that the applicant in Rosner were treatment the end of better obtaining and personnel cedures merits “Insofar as the of the controver- court observed: As the patients. from the record those can be determined at hospitals sies occurring the us, favorable than light in a more before Dr. Rosner appears 595.) (58 Dr. Rosner stated p. Cal.2d at medical involved.” personnel had appar- malpractice constituted that certain events opinion his the entire cases. Underlying in malpractice for plaintiffs testified ently “The of providing statement: goal court’s revealing decision was permitted that requires physicians medical care of standards high improper is patients that when feel treatment views they assert their Considerations are followed. being hospital practices negligent of patients the welfare where must give way of harmony known, whether or his making objections involved, a physician by is his to practice to risk done, right be required should not not tactfully 598.) at (58 Cal.2d p. medicine.”
In the case bench the evidence firmly supports conclusion to work with others was not appellant’s inability substantially related to attempt improve of medical services any part quality being furnished to It patients. is true that executive committee introduced into evidence a letter written to the executive director by appellant Health Comprehensive Planning Association objecting grant of an ing additional beds Desert Hospital which he made derogatory statements about Desert respondent, Hospital a number of other persons. A this letter fragment one- (approximately half page letter) five-and-a-half page set forth in footnote opinion. majority fragment the letter selected major fact, however, ity depicts appellant a favorable In light. the letter appellant stated as facts that Desert had falsified the Hospital statisti CHPA, cal data presented to that Desert respondent had colluded and entered into secret agreement all eliminate opposition to Desert Hospital’s beds, proposal for additional that such agreement was carried out through misrepresentations attorneys and other “by community politicians” and constituted the “deliberate suppression of material contrary to Desert Hospital’s *27 proposed plan additional hos pital beds. . .because those individuals so the representing opposition ” were off '. . . . ‘bought
The trial court did not find that appellant was denied staff admission letter, because of the fact he wrote that and although the im majority that that have ply might been a reason appellant’s application for staff privileges was refer to no rejected, evidence they supporting impli Moreover, cation. on being questioned about the letter appellant that, admitted other than he had hearsay, no awareness of the results of or, indeed, the Stanford University research project whether such any was ever project conducted. He could not recall whether he knew who off.” When “bought asked whether he believed his statement hospital was respondent supported by millionaires as a strictly tax gim mick, “Oh, appellant stated: I have made a mistake at may the time and I’ll admit a lot of it was In hearsay....” appellant addition ad mitted he did not have facts with any respect the tax alleged involved gimmick and stated: I was a little “[M]aybe presumptuous.” Were there factual supported evidence that finding appellant letter, was denied on the basis of his the writing decision, case fall within might purview the Rosner but I am Moreover, aware of no such or evidence. it would finding be un- hardly reasonable or irrational conclude from the evidence that appellant’s having potential seriously affecting
writing deliv- letter, investigating ery area, the desert without of health care services in irresponsibility. height facts constituted Appellant’s would are without merit. I affirm contentions judgment. J.,
Clark, concurred.