original - aaps · original - 'aul m. hlttelman sbn: ... support of petition for writ of...

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i ORIGINAL -

'AUL M. HlTTELMAN SBN: 33449 'AUL M. HITTELMAN i PROFESSIONAL CORPORATION .2400 Wilshire Boulevard, 15' Floor ,os Angeles, California 90025- 1023

relephone: 3 10-442-0555 :acsmile: 3 10-442-0888

ittorneys for Petitioner

SUPERIOR COURT OF THE STATE

FOR THE COUNTY OF LOS ANGELES

3IL N. MILEIKOWSKY, M.D.,

Petitioner,

V.

WEST HILLS HOSPITAL MEDICAL CENTER, an unknown entity; MEDICAL STAFF of WEST HILLS HOSPITAL MEDICAL CENTER, an unknown entity, HOSPITAL C O R P O R A T I O N OF AMERICA, also known as HCA, INC., a Tennessee Cor oration, JOHN D.

DOES 1 through 100, inclusive, HARWELL; JA d ES R. LAHANA and

Respondents.

CASE NO: BS 091943

PETITIONER'S OPENING BRIEF* IN SUPPORT OF PETITION FOR WRIT OF MANDATE (CODE OF CIVIL PROCEDURE $5 1085 4ND 1094.5)

Date: March 23,2005 Time: 9:30 a.m. Dept: 85

Filed Concurrently with Petitioner's s upplemental Declaration in Support of Petition for Writ of Mandate]

*This Brief supercedes and re laces Petitioner's Memorandum of Points and Authorities in Support of Petition for Writ o&andate filed September 3, 2004.

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PETITIONER'S OPENING BRIEF" IN SUPPORT OF PETITION FOR WRIT OF MANDATE (CODE OF CIVLL PROCEDURE $8 1085 AND 1094.5)

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TABLE OF CONTENTS PaPe No.

TABLE OF CONTENTS ................................................. i

TABLE OF AUTHORITIES ............................................. i i i ...

PREFATORYNOTE .................................................... 1

I. INTRODUCTION ................................................. 1

11. POINTS & AUTHORITIES ......................................... 4

A. BOTH ADMINISTRATIVE AND TRADITIONAL MANDATE ARE PROPER PROCEDURES TO REVIEW RESPONDENTS WRONGFUL ACTION ................ 4

B. PHYSICIANS' PRIVILEGES ARE PROPERTY RIGHTS PROTECTED BY DUE PROCESS; PETITIONER WAS DENIED HIS INALIENABLE FAIR HEARING AND A WRITTEN DECISION OFHISPEERS .............................................. 4

C. PETITIONER WAS DENIED DUE PROCESS AND FAIR PROCEDURE BY THE UNILATERAL APPOINTMENT OF THE BIASED HEARING OFFICER .......... 5

D. NO PERSON OR BODY, NOT EVEN THE JRC, THE HEARING OFFICER, OR THE BOARD, HAD POWER OR AUTHORITY TO DENY PETITIONER THE RIGHT TO AN FAIR, EVIDENTIARY HEARING ............ 8

THE HEARING OFFICER UNLAWFULLY ASSUMED THE POWERS OF A SUPERIOR COURT JUDGE; DISCOVERY SANCTIONS DO NOT EXIST IN ADMINISTRATIVE PROCEEDINGS ........................... 9

E.

F. THE ARBITRARY AND CAPRICIOUS DECISION OF THE BOAI?_= \?()LATEE TEE LETTER AND SPIRIT OF PEER REVIEW PRINCIPLES, CALIFORNIA LAW, THE STAFF BYLAWS AND DUE PROCESS ............... 11

G. THE UNLAWFUL RETROACTIVE TERMINATION OF PETITIONER'S PRIVILEGES AS OF APRIL 5,2002 VIOLATED THE BYLAWS, PETITIONER'S HEARING RIGHTS AND DUE PROCESS ................................ 14

H. THE HEARING OFFICER WAS OBLIGED TO RECUSE HIMSELF ......................................... 15

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TABLE OF CONTENTS (Continued)

Pape No.

THE HEARING OFFICER'S ORDER FOR TERMINATING SANCTIONS VIOLATED DUE PROCESS AND HIS COMMITMENT TO A HEARING . . . . . . . . . . . 17

THE ADDITION OF AMENDED CHARGES WAS FUNDAMENTALLY UNLAWFUL AND IMPROPER . . . . . . . . . . . . . 18

THE HEARING OFFICER'S DECISION WAS ENTIRELY UNFOUNDED, UNLAWFUL, UNREASONABLE AND ARBITRARY . . . . . . , . . . . . . . . . . . . . . . . . . 19

1. The Credentials Committee Never Sought The CSMC Materials Or Advised Petitioner Of A Problem Obtaining Them,. . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Petitioner Cooperated Fully I n Efforts To Procure Records Of The CSMC Proceeding , . . . . . . . . . . . . . . . . . . . . . . . 20

There Was No Legal Basis for the Hearing Officer's Dismissal Order . . . . . , . . . . . . . . . . . . . . . . . , . . . . . . . . . . , . . . . 21

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4. The Hearin Officer's Dismissal Order Was Contrary To TheEvi li ence . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . , . 22

111. CONCLUSION ................................................... 24

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TABLE OF AUTHORITIES

PaPe No.

Cases

Alexander v. Superior Ct.

Anton v. San Antonio Community Hosp.

Ascherman v. Saint Frances Medical Hosp.

Associated Brewers Distribution Co. v. Superior Court

(1993) 5 Cal.4th 1218,1224-25 ............................................ 9

(1977) 19 Cal.3d 802,824; 140 CaLRptr. 442,567 P.2d 116 ..................... 4

(1975) 45 Cal.App.3d 507,119 CaLRptr. 507 ........................... 4

(1967) 65 Cal. 2nd 583,588 ..............................................

221 Cal.App.3d 146,152 ............................................... 4,15

22

Bergeron v. Desert Hospital Corp.,

Deyo v. Kilbourne (1978)84Ca.3rd771,796 ............................................... 22

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Duggan v. Moss

Ezekial v. Winkley

Flora Crane Service, Inc. v. Superior Court

Haas v. City of San Bernardino

Miller v. Eisenhower Medical Center

(1979)98Ca.3rd735,742 ............................................... 22

(1977)20Cal.3d 267 .................................................... 4

(1965) 234 Cal. App. 2nd 767,791 ........................................ 13

(2002) 27 Cal.4th 1017 ............................................ .6,7,8,16

(1980) 27 Cal.3d 614,166 CaLRptr. 826 ..................................... 4

(1979)95Ca.3rd 664,669 ............................................... 22

(2003) Cal. 4'h 81 ..................................................... 16

(1991) 2!1 Cal.App.3d 1434 .......................................... 4

(1962)58 Cal.2d 592 .................................................... 4

(2003)112CalApp4th 1137 .............................................. 4

Morgan v. Ransom

Nightlife Partners v. City of Beverly Hills

Rosenblit v. Su erior Court (Fountain Valley Regional Hospital)

Rosner v. Eden Township Hospital District

Sahlolbei v Providence Healthcare, Inc.,

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TABLE OF AUTHORITIES (Continued)

Page No.

Cases

Sauer v. Superior Court (Oak Industries)

Unterthiner v. Desert Hospital District of Palm Springs

\701picelli v. Torrance Memorial Hospital

Webman v. Little Company of Mary Hospital

Eveinberg v. Cedar's-Sinai Med. Center

.I! (stlake Community Hospital v. Superior Court

Eri'yatt v. Tahoe Forest Hos ita1 District, et al.

(1987)195Ca.3rd213,230 ................................................ 22

(1983) 33 Cal.3d 285,188 Cal.Rptr. 590 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

(1980) 109 Cal.App.3d 242,249.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

(1995) 39 Cal.App.4th 592) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

(2004) 119 Cal.App.4th 1098,1109-1110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

(1976)17 Cal.3d465,468 ................................................ 15

(1959) 174 Cal.App. 4 d 709,345 P.2d 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

,zqrab v. Salinas Valley Memorial Health Care System (2004) 122 Cal.App.4th 474,483-485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 ,6 ,7 ,8 ,16

0 ridcktes

Business and Professions Code 5 805.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Business and Professions Code 5 805.05(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

' Business and Professions Code 5 805.05(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Business and Professions Code 5 809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . 2,5 ,9

Business and Professions Code 0 809.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,13

Business and Professions Code $5 809.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . 7

I( Business and Professions Code 6 809.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,15 I 25 I( Business and Professions Code 5 809.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . 2,8,11 1 26 I/ Business and Professions Code 6 809.2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6 1 27

Business and Professions Code 8 809.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10,21

PETITIONER'S OPENING BRIEF* IN SUPPORT OF PETITION FOR WRIT OF MANDATE (CODE OF CIVIL PROChDURE $5 1085 AND 1094.5)

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TABLE OF AUTHORITIES (Continued)

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Ytatu tes

Business and Professions Code 6 809.3(b)(i)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Business and Professions Code $j 809.3(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Code of Civil Procedure 9 1085. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . 4

Code of Civil Procedure § 1094.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CodeofCivilProcedure$2023 ............................................ 10,21

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Petitioner, Gil N. Milelkowsky, M.D., submits the following Memorandum in support

if his Petition for Writ of Mandate and Application for Preliminary Injunction.

PREFATORY NOTE

References are made herein to Petitioner’s Exhibits ( A - ” N , inclusive) by those

identifying numbers, abbreviated as “Pet. Ex “ ” and to their page numbers in the

Administrative Record abbreviated as “AR Pg : [Line (where applicable.”)]

Such references to Exhibits and the Administrative Record are indexed in the

concurrently filed Petitioner’s Appendix of References of Exhibits and Administrative

Record).

I. INTRODUCTION

Petitioner is a California licensed physician and surgeon specializing in obstetrics and

gynecology and with a subspecialty in infertility cases. In over 14 years of private practice

in the greater Los Angeles community, Petitioner has never been the subject of a patient

complaint concerning the quality of medical care he provides./ Clinical privileges at

sophsticated, well located, well equipped hospitals are essential to Petitioner’s practice.

Petitioner seeks a Writ of Mandate to vindicate h s due process and fair hearing rights

directing West Hills Hospital Medical Center (“WHHMC”) to reinstate his wrongfully

aborted judicial review hearing and to restore his wrongfully terminated clinical privileges

pending that proceeding and until exhaustion of his administrative remedies.

c)x ‘*pi! 24, 2002, Petitioner was 2otified that the Medica! EYPClltiVP Cnm-mjttee

(“MEC”) of the WHHMC Medical Staff (“Staff’) had recommended denial of Petitioner’s

200 1 Application for Reappointment (“Application”) to the Staff, without receiving any

report from Petitioner’s clinical department (OB/GYN) and that his privileges then in effect,

extended by the pendency of the Application, had “ . . . expired on April 5,2002 . . .,” not to

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1’ - See Declaration of Petitioner Gil N. Mileikowsky, M.D. in support of Petition for Writ of Mandate of Se tember 2, 2002, 7 22, p. 7.

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De renewed. Petitioner timely requested a judicial review hearing,” which was unlawfully

aborted without hearing by the unauthorized WHHMC selected and paid hearing officer. On

appeal, The WHHMC Board of Trustees (“Board”), without even addressing the merits of

the Application denial issues affirmed this unprecedented destruction of Petitioner’s due

process and fair hearing rights on August 19,2003, leaving him without privileges.

The proceedings directed against Petitioner were implemented as part of a present-day

movement among hospitals and their attorneys to eliminate physicians’ peer review, due

process and hearing rights by arbitrary, deceptive, even underhanded practices.?’

Petitioner’s fair hearing rights were doomed from the outset of his judicial review

proceeding by Respondents’ unilateral appointment and compensation of the hearing officer

John M. Harwell (“Harwell”), who had a lengthy relationship with Respondents’ counsel and

was likely actually biased against Petitioner.

Although he had no such power, Hanvell dismissed the judicial review proceeding

before the review panel was selected, before presentation of any evidence or hearing on the

merits, and without issuance of a decision written by Petitioner’s peers,?’?’ Petitioner’s

constitutionally protected hearing was thus precipitously aborted by the hospital’s paid,

handpicked hearing officer, circumventing the powers of the JRC and wrongfully assuming

the powers of a Superior Court judge. Without authority, Hanvell imposed “terminating

sanctions”, inapplicable to administrative proceedings, dismissing Petitioner’s due process

2‘ An evidentiary hearing conducted by a Judiciai Review Committee (“JXC”) of StaEiviembers is required by Business and Professions Code $ 9 809, et seq and by Articles IX and X of the Bylaws ofthe Staff ofWHHMC (“Bylaws”) (Pet. Ex. DDD; A.R. POO3860-POO3869). No person, officer or body had power or authority to abridge or curtail Petitioner’s evidentiary hearing and his right to a written decision of his peers.

2’ See, for example “Taming the Disruptive Physician” (Exhibit 1 hereto) and Petitioner’s “The

4’ The hearing officer was prohibited by statute (Business and Professions Code $ 809.2(b)) and

2’ All code references herein are to the Business and Professions Code unless otherwise specified.

Rape of the Peer Review Process by Tenet Healthsystems (Exhibit 2 hereto).

Bylaws 10.3-4 (Pet. Ex. DDD; A.R. P003867) from making any dispositive order.

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JRC hearing rights, based upon Petitioner’s alleged failure to provide documents readily

available to Respondents from other sources, concerning matters totally unrelated to the

bases for the recommendation for denial of the Application. The JRC was never finally

selected, never convened, never considered the merits of the recommendation for denial of

Petitioner’s Application and, thus, never issued the written decision required by law and the

Bylaws. Thus, the Governing Board had no authority to act as it did.

At the conclusion of Petitioner’s appeal, the Governing Board nonetheless issued its

arbitrary and capricious “FINDINGS AND DECISION OF THE GOVERNING BOARD OF

WEST HILLS HOSPITAL AND MEDICAL CENTER REGARDING THE REVIEW OF

THE DECISION OF THE HEARJNG OFFICER OF THE MATTER OF GIL

MILEIKOWSKY, M.D.” (Pet. Ex. CCC; A.R. P003815). The decision was based entirely

and exclusively upon the hearing officer’s unlawful, dismissal order and never addressed the

merits of the bases for denial of Petitioner’s reappointment Application. Respondents 5 805

and National Practitioner Databank Report (Pet. Ex. GGG; A.R. POO3896-POO3901) was

issued August 28,2003. Petitioner responded by presenting to the Medical Board of

California I s responsive statement (Pet. Ex. HHH; A.R. P003902-P003903)5’

Issuance of a Writ of Mandate is essential to restore Petitioner’s due process and fair

hearing rights and to reinstate his wrongfully terminated privileges pending completion of the

administrative hearing proceeding that must follow.

5’ The full text of this brief response states: The denial of my Application for privileges and reappointment was not related to the quality of care I provided to my patients at West Hills Hospital Medical Center (“WHHMC’’). The denial was grounded in hospital politics. I h l l y disclosed all information requested. My due process and fair hearing rights were unlawfully terminated by the hospital administration’s hand-picked hearing officer, who had no authority to do so without the knowledge and approval of WHHMC Medical Review [Hearing] Committee. There was, in effect, no hearing. The specious basis for violation of my hearing rights was my alleged failure to provide privileged records of a Cedar’s Sinai Medical Center [CSMC] peer review proceeding over which the WHHMC’s Medical Staff ‘s counsel had presided as Hearing Officer. CSMC rehsed to authorize me to release these records, which were, however, readily available to WHHMC upon its request to CSMC and presentation of authorization forms signed and provided by me. WHHMC made no effort to procure the records from CSMC. I intend to prosecute court proceedings to restore my hearing rights and reinstate m Medical Staff privileges.

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11. POINTS & AUTHORITIES

A. BOTH ADMINISTRATIVE AND TRADITIONAL MANDATE ARE PROPER PROCEDURES TO REVIEW RESPONDENTS WRONGFUL ACTION

Code of Civil Procedure 5 1085 authorizes issuance of a writ of mandate to remedy

abuses of discretion and power by bodies such as Respondents.

Similarly, Code of Civil Procedure 6 1094.5 provides that administrative mandate is

an appropriate means to challenge Respondents’ adverse actions.

B. PHYSICIANS’ PRIVILEGES ARE PROPERTY RIGHTS PROTECTED BY DUE PROCESS; PETITIONER WAS DENIED HIS INALIENABLE FAIR HEARING AND A WRITTEN DECISION OF HIS PEERS

For over forty years, California courts, recognizing that hospital privileges are

property rights, have protected physicians from arbitrary deprivation of their medical staff or

other privileges necessary to practice medicine for reasons that lack a demonstrable nexus to

quality patient care,z’ or by procedures that are not fundamentally fair.!’

The due process requirements for termination of staff privileges have been thoroughly

and recently discussed in Sahlolbei v Providence Healthcare, Inc., (2003) 112 Cal App 4‘

1137 at 1146-1 147:

Once appointed to a hospital medical staff, a physician “may not be denied

reappointment to the medical staff absent a hearing and other procedural prerequisites

consistent with minimal due process protections.” (Anton v San Antonio Cornrnuniy

Hosp. (1977) 19 Cal.3d 802, 824, 140 Cal.Rptr. 442, 567 P.2d 1162.) “[Tlhe full

rights of staff membership vest upon appointment, subject to divestment upon periodic

review only after a showing of adequate cause for such divestment in a proceeding

?See, e.g., Wvatt v. Tahoe Forest Hospital District, et al. (1959) 174 Cal.App.2d 709, 345 P.2d 93; Apulication Saint Frances Medical Hosp. (1975) 45 Cal.App.3d 507, 119 Cal.Rptr. 507; Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 166 CaLRptr. 826; Unterthiner v. Desert Hospital District ofPalm Springs (1983) 33 Cal.3d 285, 188 Cal.Rptr. 590.

E’ Rosner v. Eden Township Hospital District (1962) 58 Cal.2d 592; Anton v. Board of Directors of San Antonio Comm. Hosp. (1977) 19 Cal.3d 802;Ezekialv. Winklev(1977) 20 Cal.3d 267; Berneron v. Desert Hospital Corp. (1990) 221 Cal.App.3d 146; Rosenblit v. Superior Court <Fountain Vallev Revional Hospital) (1991) 23 1 Cal.App.3d 1434.

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consistent with minimal due process requirements.” (Id. At pp. 824-825, 140

Cal.Rptr.442, 567 P.2d 1162.) Due process in this context requires, at least, that a

physician be afforded, among other rights, “a hearing before the deciding board”; “a

written statement of the charges against him”; and “the right to call his own

witnesses.” (Id. At pp. 815-816, fn. 12, 140 Cal.Rptr. 442, 567 P.2d 1162.) The

Legislature similarly has provided safeguards for physicians against unfair peer

review activities in Business & Professions Code $ 5 809, et seq.

The hearing officer’s unilateral appointment, his pre-hearing dismissal order and its

Board affirmance destroyed Petitioner’s rights to a fair hearing, an evidentiary hearing and

hi> right to have the matter determined, in writing, by his peers.

e:. PETITIONER WAS DENIED DUE PROCESS AND FAIR PROCEDURE BY THE UNILATERAL APPOINTMENT OF THE BIASED HEARING OFFICER

Paramount among the many reasons that compellingly call for the issuance of a Writ

GI Mandate in this case is the manifest unfairness of the proceedings based upon the

y - o p e r unilateral appointment and compensation by Respondents of the hearing officer,

larwell.

Whether the hospital’s determination to deny Petitioner’s privileges was made

L ording to a fair procedure is a question of law, based upon the Court’s independent

rcview of the Administrative Record. Ponsona Valley Hospital Medical Center v. Superior

I y k u r t (1997) 55 Cal.App.4th 93, 101. Here, just as in the very recently decided Yaqub v.

.Winas Valley Memorial Health Care System (2004) 122 Cal.App.4th 474, 483-485,2‘

s u a n c e of a writ of mandate is required because the hearing officer had a fatal appearance

of bias caused by his financial conflict of interest based on his unilateral appointment by

Respondents. Whether an actual conflict of interest arose is irrelevant . Harwell had a

lengthy relationship with the medical staffs counsel, James M. Lahana, Esq., who effected

2’ The Court of Appeals decision in Yaqub has been the subject of the Supreme Court’s January 12, 2005 denial of review and denial of the hospital’s depublication request.

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h i s appointment as hearing officer. Harwell had been appointed as the hearing officer on six

prior occasions by hospitals for which Mr. Lahana was counsel in the administrative

proceeding (Transcript of the July 1,2002 voir dire hearing in the underlying administrative

proceeding, (A.R. P001573:24 - P001575)). One of these cases, which involved 6,000 pages

of hearing officer’s record, continued into 2002, just before Harwell was appointed in the

underlying proceeding herein (AR1576:8-15).

This lengthy and economically beneficial relationship necessarily disqualified

Hanvell from presiding as a hearing officer over the administrative proceeding herein.

Yaqub, supra; Haas v. County of Sun Bernadino (2002) 27 Cal.4th 1017, 1020. Here, as in

Yaqub and Haas, the hearing officer was unilaterally selected by the prosecuting entity, here,

the Medical Staff (A.R. P001566: 12-13; A.R. P001582: 18-P001584:6).

In his voir dire, Hanvell disclosed that he devotes 20 to 25 percent of professional

time to service as a hearing officer in proceedings such as that to whch Petitioner was

exposed by Respondents (A.R. P001569).

During his voir dire, Hanvell asserted that he was sensitive to a claim of bias and was

at great pains to mislead Petitioner by repeatedly proclaiming that he was powerless to act

contrary to Petitioner’s interests. Examples of h s statements during his July 1, 2002 voir

dire are these:

Now, mind you, because the hearing officer doesn’t make any decisions, as you know, I cannot rule in our favor or in the hos ital’s favor. That’s the

- And? as I expressed to vou there are two reasons why I don’t think [Haas] applies - that case appfies here. (A.R. P001577: 12-14)

The first is, I cannot hand up a decision, and millions of dollars aid to me cannot sway the five physicians. So I can’t make it - I couldn’t R and u a decision for either party, no matter how hard I tried . . . A.R. P001577:!2-18

Well, again Doctor, it’s because she was . . . all the cases that were cited [in Haas] were cases were udges are able to proper - rofit, sorry - as a result of

them. And it’s a huge difference. I can’t. And I gave you the citation to the Union - to the United Farm Worker’s case which says that, in cases where the hearing officer cannot affect the decision, first the perception of conflict of interest is not the test. It’s actual conflict under the circumstances. And,

power only of the Judicial i eview Committee. (A.k. P001566: 18-21).

handmg up a decision 2 avorable to the person who K ad recommended or hired

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unlike the woman in San Bernardino, I could not - I cannot hand up a decision to the erson who hired me. I do not have the ability to do that. I’m - as you

KO0 1580:2-17).

But the facts - the distinction in the facts are very, very si

. . . all the lawyers who do this recognize that I can’t influence the decision. That’s goin to be in the hands of the Judicial Review Committee, and,

w know, P ’rn strictly prohibited from being involved in the decision-makin

render a decision, and that’s what it was all about. (A.R. r 001581:ll-13).

therefore, w a at I’m loolung to do is to make sure the process is falr. (A.R.

rocess. So that s the danger that they were trying to protect against. ( .R.

ficant. I cannot

PO0 158216- 10).

These deceptive pronouncements mirrored similar remarks written by Harwell shortly

before voir dire. When announcing his appointment on June 17,2002 (Pet. Ex. S; A.R.

PO0 142 1-PO0 1428), Harwell made much of the “limited role of hearing officer”, asserting:

The Hearing Officer rules on legal and rocedural matters, but is prohibited from being a decision marker. . . (Pet.%x. S; A.R. P001424).

Hanvell’s arguments that he had no decisional power and, thus, no potential for

conflicts of interest, pale to insignificance in light of Yaquh ’,r holding that the essence of

disqualification is the method of hearing officer selection and appointment.

It is true that Justice Agliano, unlike the hearing officer in Haas, did not serve as a fact finder, partici ate in the deliberations, or issue a decision

Bylaws, he provided key rulings on admissibility of evidence and access to information. He also ruled on the challenge to his own appointment as hearing officer a determination upheld by the Board itself. . .

We also acknowledge that there was no evidence of actual prejudice or of a direct financial interest in the outcome of the case . . . The b-ial court itself advised the Board to reevaluate the selection process for hearin officers” in light of Haas. It’s suggestion was well taken . . . SVMHS’

amearance of hPartiali6. Appellant’s obiection on this mound was sound, ana his Petition for Writ of Mandate should therefore have been granted. (122 Cal.App.4th at 485-486) [Emphasis Added]

recommending action i y the Administrative Board. Yet, as permitted in the

proce-?lres a for aDpohtiin heariin officers were not cnnsistent with the

There can be no distinction between the circumstances in Yaqub and those present

here. Hanvell ruled on the challenge to his appointment and made key discovery rulings.

Even though actual conflict or bias is not essential under Yaqub and Haas, the facts

also reveal the reasonable likelihood of actual bias. In early March, 2003, shortly before

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dismissing Petitioner’s judicial review proceeding at WHHMC, Harwell had been asked, at

Petitioner’s request, by Century City Hospital to recuse himself as hearing officer of a peer

review proceeding involving Petitioner at that faci1ity.g’ The hospital joined in the request

and recusal quickly followed. The loss of revenue from this potentially lucrative assignment

gives rise to strong inference of actual bias arising several months after appointment..

Under Yaqub, the issuance of a writ of mandate is required. The facts of this case

demand it.

D. NO PERSON OR BODY, NOT EVEN THE m c , THE HEARING OFFICER, OR THE BOARD, HAD POWER OR AUTHORITY TO DENY PETITIONER THE RIGHT TO AN FAIR, EVIDENTIARY HEARING

Petitioner’s right to a fair evidentiary hearing is inalienable; it is guaranteed by law

and the Bylaws. No procedure exists by which that right could be abridged. The statues and

Bylaws require that the JRC hearing can only be resolved on the basis of evidence on the

merits. Bylaws 10.3-9(a) (Pet. Ex. DDD; A.R. P003868) specifies:

The Medical Executive Committee shall bear the burden of persuading the Judicial Review Committee, by a reponderance of the evidence, that its action or recommendation was reasonab P e and warranted.

Bylaw 10.3-9(b) (Pet. Ex. DDD; A.R. P003868-PO03869)specifies:

When any hearing of the Medical Executive Committee or Board of Trustees adversely affects a member of the Medical Staffs membershp status or privileges, the representative of the body concerned shall have the obligation to introduce evidence in support of its action and recommendations, and to bear the burden of persuading the trier of fact by a preponderance of the evidence that the action or recommendation in question was reasonable and warranted.

The hearing officer is required to insure an evidentiary hearing. Bylaw 10.3-4 (Pet.

Ex. DDD; A.R. P003867) provides that the hearing officer:

“...shall reside over the hearing ... act to insure that all participants in the

and documentary evidence and that decorum is maintained.” hearing s E all have a reasonable opportunity to be heard and to present all oral

Section 809.2(b) specifies that the role of the hearing officer is to preside at a hearing;

he cannot act as a prosecuting officer or advocate and he has no vote. Pre-hearing

E’ See the concurrently filed Supplemental Declaration of Petitioner f i 3 and 4, p. 2-3 and Exhibits 000 PPP, QSQ, RRR and SSS thereto.

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;emination or dismissal of petitioner’s hearing rights by order of the JRC or the hearing

iffcer, rather than by written decision of the JRC based on evidence, is not provided for.”

The hearing officer’s dismissal of the JRC proceeding also violated the letter and

spirit of the peer review provisions of $8 809 et seq., which require that peer review

proceedings must be conducted and determined by licentiates. Credentialing decisions must

in the first instance be made by the Medical Staff. Alexander v. Superior Ct. (1993) 5

Cal.4th 1218, 1224-25.

E. THE HEARING OFFICER UNLAWFULLY ASSUMED THE POWERS OF A SUPERIOR COURT JUDGE; DISCOVERY SANCTIONS DO NOT EXIST IN ADMINISTRATIVE PROCEEDINGS

The hearing officer’s dismissal order was based on Petitioner’s alleged failure to

zomply with discovery. Nothing in law or the Bylaws permit discovery sanctions. Identical

provisions of the Bylaws and 5809.2 provide that the only prescribed consequence of the

failure to give discovery is continuance of the hearing, if requested, not dismissa1.g’

Sanctions are not mentioned.

Petitioner’s position should be no cause for alarm or concern that an unexcused

refusal to provide material documents in discovery can have no adverse consequence for

u’ The hearing officer, in his March 27, 2003 terminating sanctions order [Pet. Ex. 00; A.R. P003509, et seq.], and the MEC in its brief to the Governing Board, attempted to manufacture authority for the hearing officer’s usurpation of the JRC power by citing Bylaw 10.1-7 (Pet. Ex. DDD; A.R. POO3863-POO3864) which gives no such power to the hearing officer. That Bylaw specifies that the failure of “ ... a member of the Staff requesting the hearing to appear and proceed at such hearing shall be deemed to constitute voluntary acceptance of the recommenda6ons or action involvzb.” [Emphasis Addedj Petiiioiier coiisisieiiily appeaieb aiid iespurided ai pre-hearing proceedings. No hearing was ever convened at which petitioner could appear.

Section 809.2(d) provides:

“the peer review body shall have the right to inspect and co y at the peer review body s ex ense any documentary information relevant to t R e charges which the

of the eer review body’s re uest. The failure by either party to provide access to

a continuance ... [Emphases Added]

licentiate R as in his or her possession or control as soon as practicable after receipt

this in F ormation at least 30 c? ays before the heamg shall constitute good cause for

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’etitioner. Nothing in the law or Bylaws would, in the context of a properly convened fair

widentiary hearing, prevent the JRC from considering an unexcused refusal to cooperate in

liscovery as a basis to rule against Petitioner. Here, also, it is appropriate to recall that the

ZSMC matter was not a basis of the April 24,2002 denial of the Application, the CSMC

naterials were readily available from other sources and the facts relating to the issue of

sanctions and Petitioner’s reasons for non-production were never submitted to the JRC or to

Petitioner’s peers.

Neither the Board nor the hearing officer has power like that of a judge under Code of

Civil Procedure $2023 to grant terminating sanctions. Hearing officers in peer review

proceedings are not analogous to judges. The power of a judge in court proceedings to grant

discovery sanctions is expressly provided by statute and follows from the judge’s broad

dispositive powers. Conversely, hearing officers’ powers are strictly limited to non

dispositive and advisory matters. Any attempt to liken peer review proceedings to court

proceedings and hearing officers to judges is unprecedented and mischievous.

The provisions of statute and Bylaws giving the hearing officer authority to impose

safeguards in discovery did not give h m power to destroy Petitioner’s rights to due process

and a fair hearing. This would be a naked and unsupportable misconstruing of Business and

Professions Code Section 809.2, which has never been so construed, and Bylaw 10-3.2C.

(Pet. Ex. DDD; A.R. P003866), the obvious purpose of which are to enable the hearing

officer, in ruling upon the propriety of discovery requests, to protect privacy and privileged

materials and to avoid such tpica! discovery &uses as the prepowdig of oppressive,

harassing and burdensome discovery requests. The plain language of that Bylaw makes clear

that it does not even address failures to produce. “Safeguards” involve protective

mechanisms benefitting responders, not devices to punish them.

Had the legislature intended Business and Professions Code Section 809.2(d)

to empower the hearing officer to impose harsh sanctions upon responding parties in the

discovery context, the legislature would have so provided. Equally clearly, had the drafters

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3f WHHMC Bylaw 10.3-2c intended to empower the hearing officer to impose sanctions

upon responding parties in the discovery context for unexcused non-production, the bylaw

would have been drafted to so specify. Neither the statutes or Bylaws grant the hearing

afficer any sanctioning or dispositive powers.

F. THE ARBITRARY AND CAPRICIOUS DECISION OF THE BOARD VIOLATED THE LETTER AND SPIRIT OF PEER REVIEW PRINCIPLES, CALIFORNIA LAW, THE STAFF BYLAWS AND DUE PROCESS.

Long established due process principles are the subject of statutory and Bylaw

provisions which specie Petitioner’s rights. These include: 8 Peer review must be conducted by licentiates (Business and Professions Code 5 809.05; A JRC must be comprised of members of the Staff (Bylaw 10.1-4);

The designated hearing body, the JRC, must:

. . . make a report and recommendations in writing to the Medical Executive Committee I -. - _ and to the Board of Trustees. Such a report shall include (1) findmns of fact and a conclusion articulating a connection between the evidence produced at the hearing and the decision . . .[Emphasis added] [Bylaws 5 10.1-81 (Pet. Ex. DDD; A.R. P003864)

8 A judicial review hearing may not be determined without the introduction by

the Staff of evidence in support of its action and recommendations; The MEC must

persuade the JRC, by preponderance of evidence, that its action or recommendation

was reasonable and warranted. (Bylaws 10.3-9(a)); 5 809.3(b)(i)(iii)). (Pet. Ex.

DDD; A.R. P003868)

The hearing officer appointed to preside over the hearing has no decision

making power and is not entitled to vote ( 5 809.2(b)); Bylaws 10.3-4. (Pet. Ex. DDD;

A.R. P003867)

Each party has the full range of rights to present evidence, cross examine,

impeach witnesses and submit a closing brief (Bylaw 10.3-7). (Pet. Ex. DDD; A.R.

POO3867-POO3868)

No statute or Bylaw gives power of disposition without hearing to anyone, certainly

not to the hearing officer. No statute or Bylaw provides for early termination of a hearing or

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-evocation of hearing rights. The hearing must continue until the evidence has been

)resented and considered to the stage where a written decision has been made by the JRC.

The Board’s decision adopting and affirming Hanvell’s order unlawfully and

wrongfully affirmed the unwarranted and unauthorized eradication of Petitioner’s due

xocess and fair hearing rights by the hearing officer, who arrogantly unlawfully arrogated to

h s e l f the powers of a superior court judge and in a context wherein neither he, nor the

3ody he was engaged to advise, the JRC, had the power to deny or revoke Petitioner’s right

:o a hearing.

The Board did not even give passing notice to the merits or lack of merit of the

underlying bases of rejection of Petitioner’s reappointment Application. The Governing

Board’s decision stated:

. . . the Committee, usin its independent judgment, unanimously found that: 1) Dr. Milelkow& was afforded a f a r hearing procedure in substantial compliance with the Medical Staff Bylaws; 2) Further, the Committee of the Governing: Board unanimously found that the decision of the Hearing Officer in dismissing the appeal of Gil Mileikowsky, M.D. was reasonable and warranted, supported by the weight of the evidence, and the Committee of the Governing Board recommended that it be acce ted in its entirety.

The above recommendation of the 8 ommittee was presented to the full Governin Board on August 19,2003. At that meeting, the Governing Board

the decision of the hearinn officer appointed to the Medica is the final action of the Governing Board. (Pet. Ex. CCC; A.R. P003815). [Emphasis Added]

84; adopted ti? e recommendation of the Committee. Accordin 1 , the adoption of eview Committee

The Governing Board thereby failed entirely to address either the lack of JRC hearing and

decision depriving the Board of authority or the merits z’ of the purported reasons for denial

L?’ Ignoring the clarity and brevity of this Decision in an excess of hyperbole and zeal, Respondents wrongly and prejudicially asserted in opposition to Petitioner’s Application for Preliminary Injunction, that the Governing Board’s decision addressed more than just the hearing officer’s dismissal of the proceedings for Petitioner’s failure to cooperate in discovery, and asserting without basis in the Decision:

“. . . the West Hills Governing Board has the right to refkse to grant Medical Staff privileges to Petitioner because Petitioner lied on his Application, refksed to provide the Cedars Sinai Documents and engaged in inappropriate and disruptive behavior in the West Hills OR. Not only is each of these actions independently sufficiently to support the denial of Petitioner’s Application, the Governing Board itself has the power and authority to deny privileges on these grounds even if the Medical Staff or Peer Review Committee had not.” (Respondents’ Points and

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of Petitioner’s Application, which had never been reviewed by a Judicial Review Committee.

The Board’s decision revealed that it thoroughly misunderstood the bases of the hearing

officer’s appointment, his role and powers. The hearing officer was never “. . . appointed

the Medical Review Committee . . .” a body that could be comprised only of medical

licentiates. The implication that the hearing officer had decisional power as a part of the

“Medical Review Committee” is entirely false, unwarranted, capricious and arbitrary.

The fmal, August 19, 2003, appellate decision of the Board upholding the dismissal

order thus violated fundamental principles of the controlling law, Business & Professions

Code 9 809.05, which requires that “...peer review be performed by licentiates.” and that,

“In all peer review matters, the governing body shall give great wei&t to the actions of peer

review bodies and, in no event, shall act in an arbitrarv or camicious manner.” The Board

had no power to act in the absence of a written decision and report of the JRC. (Bylaw 10.1-

8) (Petitioner’s Ex DDD; A.R. P003864) The adoption and a f f k g by the Board of the

unlawfbl hearing officer’s dismissal order was arbitrary, capricious, unreasonable, unlawful

malicious and a consummate abuse of discretion.

Hanvell’s decision trammeled upon virtually all of Petitioner’s due process rights. L.

Petitioner was denied a hearing before his peers on the JRC; he was denied the right to call

and cross examine witnesses and present his evidence; the matter was decided by an

attorney, not a medical licentiate; he was denied a written decision by his peers; he was

denied the right to have the Board consider a written decision of h s peers. Thus, the Board

had no power to act except to remand the matter for an evidentiary heariig. The Bc?zd’s

affirmance compounded the denial of Petitioner’s fair hearing rights.

There can, therefore, be no inference or presumption of correctness of the

Authorities in Opposition to Petitioner’s Order to Show Cause Re Preliminary Junction, page 7, lines 7 - 12).

The Governing Board addressed none of these matters. In Weinberg v. Cedars-Sinai Med. Center (2004) 1 19 Cal.App.4th 1098, 1109-1 110, upon which Respondents relied, there had been a hll, evidentiary JRC hearing, the results of which the Governing Board reversed. The present case is conclusively distinguishable as, here, there was no JRC hearing and the Governing Board’s sole decision was to adopt the wronghl dismissal of the proceedings by the Hearing Oficer.

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ldministrative or appellate process at the Board level. The Board violated the fundamental

requirements of 6 805.05. It gave no weight to any action of the peer review body, the JRC,

‘6 i 805.05(a)) as that body never acted. The Board acted arbitrarily, capriciously, unlawfully

snd abused its discretion (6 805.05(b)) by adopting and affirming the hearing officer’s order,

and his circumvention of the JRC, as the sole basis of its decision.

G. THE UNLAWFUL RETROACTIVE TERMINATION OF PETITIONER’S PRIVILEGES AS OF APRIL 5,2002 VIOLATED THE BYLAWS, PETITIONER’S HEARING RIGHTS AND DUE PROCESS

Long before the wrongful dismissal of Petitioner’s JRC proceeding by the Harwell,

Petitioner’s livelhood was crippled by the inappropriate, unfair, wrongful and unlawful

cancellation of his clinical privileges, in flagrant violation of the automatic extension

provisions of Bylaw 6-5-9141. (Pet. Ex. DDD; A.R.PO03850) Defying this provision, in the

Application denial letter of April 24, 2002 [Pet. Ex. N; A.R. P003330, et seq.]E’,

Respondents notified Petitioner that his privileges, extended on February 12, 2002 [See Pet.

Ex. L, A.R. PO03290 et seq.] for sixty days, expired April 5,2002, without cause, notice or

hearingE‘.

There is no lawful basis for limiting the duration of Practitioner’s privileges without

notice and hearing to any period of time less than the time that the Application would remain

2’ This section provides: “If it a pears that an Application for reap ointment will not be

reappointment process, the Medical Executive Committee and the Board of rustees s h a approve a time and member‘s specific extension of the member’s status and clinical m. With respect to such delays not caused b the staff member, if for any reasons

or the extension time runs out prior to completion of the reappointment procedures, the member’s membership and privileges shall nonetheless contmue until processing of his reapplication is completed. Pmphases Added]

fully processed by the ex iration !i ate of the member’s appointment, F or reasons other than due to the reapplicant’s F ailure to return documents or otherwise tmely coo erate in the

%e Medical Executive Committee and/or Board of ? rustees fails to approve an extension

?p

% - 151 (( . . . Accordin ly, your Medical Staff membership and privilepes exuired on April 5,

2002 and will not e renewed.” [Emphasis added] - -

Ei That Petitioner was thereafter without privileges was later declared by the WHHMC’s and its Staffs attorne Lahana, by letter of June 26, 2002 (Exhibit V; A.R. P003378).

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pending and, if unfavorably acted upon until the review, fair hearing and appeal procedures

ran their course.

The Bylaws (Articles IX and X (Pet. Ex. DDD; A.R. POO3860-POO3869) and

gfj809.1, et. seq. specify that, except in the rare circumstance, not present here, when

exercise of privileges would result in imminent danger to a patient, clinical privileges mav

not be terminated. limited or suspended without written notice and hearing prior to the actual

imDosition of the final decision (fjfj809.l(a), 809(2)). Westlake Community Hospital v.

Superior Court (1976) 17 Cal.3d 465, 468; Volpicelli v. Torrance Memorial Hospital, (1980)

109 Cal.App.3d 242, 249; Bergeron v. Desert Hospital Corp., supra, 221 Cal.App.3d 146,

152.

Unquestionably, the denial of privileges while the Application was pending and

before exhaustion of Petitioner’s administrative remedies at WHHMC denied due process

and was tantamount to a baseless summary termination of privileges.

H. THE HEARING OFFICER WAS OBLIGED TO RECUSE HIMSELF

The hearing officer, Harwell, was requested by Petitioner to recuse himself for

countless conflicts. Those conflicts included:

1. He was serving as a hearing officer at WHHMC at the same time he was

serving as a hearing officer in a similar matter involving Petitioner at

Century City Hospital, [A.R. POO1566-POO1567; Pet. Ex. T (A.R.

P003359, et seq; Pet. Exs. 000- SSS; A.R. 004080-P004088];

There was a long standing personal and economic. relationship h e ~ e e n

Harwell and Lahana, WHHMC and Staff counsel, which included

professional associations and several designations of Hanvell as a

hearing officer when Lahana represented other Medical Staffs or

institutions (A.R. P001573:24-P001576: 15). This would give rise to the

expectation of continued referrals and create a financial dependency that

unavoidably leads to a lack of impartiality. [Yaqub v. Salinas Valley

2.

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Hospital, supra, 122 Cal.App.4th 474 Haas v. City of San Bernardino

(2002) 27 Cal.4th 1017; See also Nightlfe Partners v. City of Beverly

Hills (2003) Cal. 4‘ 81 stressing the prosecuting attorney’s advice to the

hearing officer.]

Hanvell refused recusal, asserting that he was not in a conflict of interest position,

stating that the Haas principle, which condemns the ad hoc appointment of hearing officers,

did not apply to him since he was only serving as presiding officer and advisor on law and

procedure, not as an adjudicator. (Pet. Ex.“W’, A.R. P003384, et seq.).

Harwell was asked by Petitioner on June 23,2002 to recuse himself in light of the

then recently decided Haas v. County of San Bernardino, supra (see Petitioner’s recusal

request letter, Pet. Ex. T; A.R. POO3359-POO3368). Responding in a June 27,2002 letter

addressing Haas [Pet Ex. W; A.R. P003384-P003389), Harwell found Haas inapplicable

asserting :

in Haas, the hearing officer was a decision maker and a fact finder, and issued a decision rendered by herself. . . . in medical staff cases, unless an arbitrator is mutually selected b the parties, the hearing officer is strictly prohbited from being a

in an way on the decision made b the independent member of the peer review

He continued, seeking to distinguish United Farm Workers v. Superior Court (1985)

decision maker or fy act finder. The hearing officer does not render a decision or vote

pane. 7 (Pet. Ex. W; A.R. P003385f

170 Cal.App.3rd 97, 104-105, declaring:

Where, as here, the Hearing Officer is limited to rulin s on law and procedure, [see Bylaws Article X, Section 10.3-41 the concerns o B conflict are greatly reduced. (Pet. Ex. W; A.R. P003385).

Finally, he presented th is uitimateiy seif-serving pronouncement:

In sum, the danger of the temptation of makin decisions favorable to the

not does not exist, as no ability to make such decisions is within the power of such hearing officers. (Pet. Ex. W; A.R. P003386).

Incredibly, and in an exercise of consummate self serving, flawed reasoning, Harwell

lawyer or entity which selected the hearing o a icer in medical staff cases does

found he had the power to dismiss Petitioner’s JRC review proceeding without a hearing, and

without the advice or consent of the JRC, notwithstanding h s closely reasoned justifications

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for declining recusal based upon his utter lack of any such power. (Pet. Ex. 00; A.R.

P003509, et seq.)

When Harwell’s recusal at CCH resulted from Petitioner’s request in March, 2003u’,

he was obliged to recuse himself at WHHMC as well.

Harwell’s aggressive activism in advancing WHHMC’s and its Staffs objectives by

circumventing the JRC demonstrates his disqualifjmg lack of impartiality.

I. THE HEARING OFFICER’S ORDER FOR TERMINATING SANCTIONS VIOLATED DUE PROCESS AND HIS COMMITMENT TO A HEARING

The terminating sanctionsldismissal order (Pet. Ex. 00; A.R. P003509, et seq.) was

issued on March 27,2003, without notice or hearing. On March 26,2003, the Staffs

counsel had written requesting an order for terminating sanctionsg/ (Pet. Ex. NN; A.R.

Po03507). The hearing officer’s carefully worded 12 page order (Pet. Ex. 00; A.R.

Pi!03509, et seq.) granting the terminating sanction of dismissal was issued the very next

day, without any notice to petitioner or a hearing, notwithstanding these prior commitments

o f the hearing officer to hear the parties’ positions and arguments:

A. In his letter of February 5,2003 (Pet. Ex. LL; A.R. P003489, et seq.) the

hearing officer declared:

Unless Dr. Mileikowsky provides these documents, the hearing officer will issue terminating sanchons, either issue preclusion . . . or termmation sanction, . . . The hearing officer will seek the position of the parties on which sanction is appropriate if Dr. Mileikowsky fails to provide the documents requested

g‘ See discussion in 4 D, ante at p. 9.

8’ Staff Counsel’s March 26,2003 letter to the hearing officer requesting dismissal (Pet. Ex. NN; A.R. P003507) violated the Bylaws, which prevent the Staff from being represented by counsel when the petitioner is not (Bylaws Article X, 4 10.3-3) (“The hearings provided for in theseBylaws are for the purpose of intraprofessional resolution of matters bearing on professional competency and conduct. The member and Medical Executive Committee may be represented in any phase of the hearing by legal counsel; provided, however, that the Medical Executive Committee shall not be represented by legal counsel ifthe member is not so represented.”) [Emphasis added] 3 809.3(c) expressly prohibits peer review bodies from being represented by counsel if the licentiate is not so represented. Staffs counsel also violated the hndamental principle that matters concerning privileges must be resolved by medical licentiates. Attorneys cannot usurp duties and prerogatives of medical staff committees.

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[A.R. PO035031 [Emphasis Added]

B. Later, in his letter of March 18,2003 [Pet. Ex. MM; A.R. P003504) the

hearing officer declared:

Dr. Mileikows for the ins ection and . . within seven B ays of this letter

sanctions will be ordered. The , and discussion will be sought from

theparties, but at the moment the hearin officer is inclined to issue terminating sanctions , . . [Emphasis Ad B ed]

The hearing officer lacked authority to act in the manner he did. He even chose to

violate his own commitments to entertain argument. Thus, he violated the most fundamental

precepts of due process, notice and fair hearing.

J. THE ADDITION OF AMENDED CHARGES WAS FUNDAMENTALLY UNLAWFUL AND IMPROPER

The hearing officer’s dismissal order was based entirely on Petitioner’s alleged refusal

to produce documents concerning the CSMC peer review proceeding, a matter never

mentioned in the April 24, 2002 Application _ - denial recommendation letter (Pet. Ex. N; A.R.

P003530, et seq.). CSMC was mentioned for the first time in an August 21,2002

“amendment of charges” letter. (Pet. Ex. EE; A.R. PC00343 1, et seq.)

Bylaw 10.1-l(b) (Pet. Ex. DDD; A.R. P003862) requires that when the Governing

Board or MEC recommends an action, such as reappointment denial, which gives rise to

hearing rights, prompt notice shall be given to the affected Staff member of the proposed

action and of his right to appeal and:

. , . shall state in writing. in concise language, the acts or omission(s) with which the Staff member is charged, or other reasons for the final proposed action taken or recommended. pmphases Added]

Petitioner was sent a letter stating the reasons for the recommendation of denial of i

Application on April 24, 2002 [Pet. Ex. N; A.R. P003330, et seq.]. There was no statement

of charges. This letter specified, as the reasons for the MEC’s recommendation for denial,

certain representations andor omissions of information in the Application, none of which

E’ That this interval was only six days seems to have been overlooked by the hearing officer. eadmgsPetrt Crnb Bnef upd


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made any reference to the CSMC matter or its records. Bylaw 10.1-l(b) (Pet. Ex. DDD;

A.R. P003862) does not authorize amendment of the statement of reasons for a denial

recommendation.

Denial of reappointment of privileges must be based upon a determination of the

Clinical department and the Credentials Committee (Bylaw 6.5.5 (Pet. Ex. DDD; A.R.

POO3489-POO3490) before consideration by the MEC. No department or committee ever

raised or considered the CSMC matters referred to in the “amendment”. The MEC’s

recommendation for the denial of Petitioner’s Application must therefore, stand or fall on the

efficacy of the original reasons stated on April 24, 2002 (Pet. Ex. N; A.R. P003330, et seq.).

The August 2 1, 2002 “amendment of charges” was a wrongful, even malicious, illogical

expansion of the issues.

Nonetheless, the hearing officer later slavishly based his order dismissing the JRC

review on the entirely trumped assertion that Petitioner had refused to provide discovery of

privileged material that concerned or& the CSMC peer review records first referenced in the

August 21, 2002 “amendment” (Pet. Ex. EE; A.R. PO0343 1, et seq.).

K. THE HEARING OFFICER’S DECISION WAS ENTIRELY UNFOUNDED, UNLAWFUL, UNREASONABLE AND ARBITRARY

Even if the hearing officer had dispositive powers, which he did not, his order was

unwarranted, arbitrary and without basis in fact.

1. The Credentials Committee Never Sought the Csmc Materials or Advised Petitioner of a Problem Obtaining Them.

The sole basis of the hearing officer’s terminating sanctions order was petitioner’s

alleged failure to produce privileged records of the CSMC peer review proceeding, referred

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o only in the improper “amended charge” concerning those records.20’2’ Issues concerning

3 M C peer review records entered the picture with respect to the Application only after it

lad been denied and petitioner had timely requested a JRC review hearing. Prior to the

jenial of petitioner’s Application, no effort was made by the Credentials Committee to

3rocure the CSMC records; no reference was made to the lack of such records; no claim

was made that they affected the credentialing decisi0n.a

There is no legal, factual or procedural justification for basing any decision

:oncerning the April 24, 2002 recommendation for denial of Petitioner’s Application for

Reappointment upon matters relating to the CSMC peer review proceeding or records

hereof.

2. Petitioner Cooperated Fully In Efforts To Procure Records Of The CSMC Proceeding.

The hearing officer’s finding that petitioner failed to cooperate in procuring the

CSMC peer review records is baseless. What is clear is that WHHMC’s counsel, who had

presided as hearing officer of Petitioner’s CSMC proceeding, and the hearing officer,

knowing that Petitioner had been instructed by CSMC not to produce records of that

?roceeding (Pet. Ex. B; A.R. P003235, P003240-P003241), undertook to entrap him in an

msolvable dilemma.

The procedures for reappointment and the processing of reappointment applications

ire provided by Bylaw 6.5 (Pet. Ex. DDD; A.R. POO3848-POO3850). Its provisions spec ie

E’ The identifylng information found in the foot of the amendment letter (Pet. Ex. EE; A.R. P003433) shows that it was prepared by Lahana. The computer log line at the end of that letter reads “JRL\clm; West HillsWileikowskyM1eikowsky24.” This interference by counsel in the proceedings is as inappropriate and as reprehensible as is the later, March 26, 2003 request for terminating sanctions. (Pet. Ex. NN; A.R. P003507) also obviously prepared by Lahana.

G/ These fabricated “charges” were forcefilly refited by petitioner in writing (see, e.g., Pet. Ex. JJ; A.R. P003446, et seq.).

2 WHHMC’s improprieties and denials of due process began when the Credentials Committee failed to follow the necessary pre-recommendation procedures, by acting without receipt of a report from petitioner’s clinical department, the Department of Obstetrics and Gynecology, a report re uired b j Bjlaw 6.5-4 (Pet. Ex. DDD; A.R. P003849). adm%Petit Cmb. nef pd


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that the burden of verifying the applicant’s information is fust upon the Credentials

Committee:

The Credentials Committee, or its designees, shall in a timely fashion, seek to collect or veri& the additional information made available on each reappointrpent form .and to collect any other materials or information deemed

ertment, mcluding mformatron regardin the members professional achvihes, Lerformance and conduct in this Hospitaf The Credentials Committee shall

romptlv notifv the member of anv problems in obtaining the information !e w e d . The member. shall then have the same burden of roducing adequate k t i o n and resolwng doubts as provided. [Emphases ldded] [Bylaw 6.5-3; A.R. PO038491

Thus, Petitioner was entitled to rely upon the initial responsibility of the Credentials

Committee to request and procure information from CSMC, using Petitioner’s authorizations,

and to follow-up or notify petitioner of any lack of success.

Petitioner believed, in good faith, as a result of the letter earlier received from

CSMC’s counsel, that he was prevented from producing the records himself (Pet. Ex. B;

A.R. P003235; POO3240-POO3241). He relied upon the Credentials Committee to procure

any records it sought by direct contact with CSMC, utilizing Petitioner’s several

authorizations.

The Credentials Committee made no effort after the Application was submitted to

procure the CSMC proceeding records. Petitioner’s discovery requests to procure

documentation of such efforts were rebuffed. Moreover, the Credentials Committee never

communicated to Petitioner anv difficulty in procuring the CSMC records.2’ No duty of

Petitioner to produce the CSMC records ever arose.

3. There Was No Legal Basis for the Hearing Officer’s Dismissal Order

As previously stated, the consequence of pre-hearing non- production of documents is

continuance of the JRC hearing if requested. ( 5 809.2(d), Bylaw 10.3-2b (Pet. Ex. DDD;

A.R. P003866))

Discovery sanctions under California Law (Code of Civil Procedure $2023 et. seq.)

3’ There is no record that the Credentials Committee even considered the CSMC matter in evaluatin etitioner’s Application.

:admgsiPetit Crn&BR,fwpd

PETITIONER’S OPENING BRIEF“ IN SUPPORT OF PETITION FOR WRIT OF MANDATE (CODE OF CIVIL PROCEDURE §§ 1085 AND 1094.5)

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x e available pursuant to statutes only in court, not in administrative proceedings, and then

mly upon notice and hearing after disobedience of a court order compelling discovery.

rhere is no provision of statute or Bylaw authorizing sanctions in hospital administrative

Proceedings.

A motion for terminating sanctions cannot be granted by a court without notice and

hearing. Sanctions are not automatic, a noticed motion for sanctions is required (e.g.,

CCP§2030(k), (1); Duggan v. Moss (1979) 98 Ca. 3rd 735, 742).

Typically, a litigant seelung to compel production of documents must show good

Gause. (C.C.P. $203 l(m); Flora Crane Sewice, Inc. v. Superior Court (1965) 234 Cal. App.

Znd 767, 791), which is typically established by competent evidence that there is no

dternative source for the information sought. (Associated Brewers Distribution Co. v.

Superior Court (1967) 65 Cal. 2"d 583, 588). Here there was a willing source for the records

sought, CSMC itself (see Pet. Ex. B; A.R. P003241). Nonetheless, WHHMC, the Staff and

their counselg' deliberately chose not to request the documents from CSMC.

A court may impose terminating discovery sanctions only when lesser sanctions do

not achieve the desired result (Deyo v. Kilbourne (1978) 84 Ca, 3rd 77 1, 796) and where

failure to give discovery actually impairs the ability of a party to prepare for and proceed to

h-ial (Sauer v. Superior Court (Oak Industries) (1987) 195 Ca. 3'd 213, 230). This power may

not be employed when the documents sou&t are available from other sources. (See Morgan

v. Ransom (1979) 95 Ca. 3rd 664, 669). Here, there were alternative sources of the

documents, including CSMC itself.

4. The Hearing Officer's Dismissal Order Was Contrary To The Evidence

Even if law applicable to court proceedings was applicable to the WHHMC JRC

hearing, and due notice had been given, terminating sanctions would be contrary to the

evidence. The availability of the CSMC records from other sources (CSMC and Mr. Lahana)

E' Since Lahana, WHHMC's and Staffs counsel, had been the hearing officer at Petitioner's CSMCxeer review proceeding, he undoubtedly had records of the proceeding.

eadings\Pettt b Bnef wpd

PETITIONER'S OPENING BRIEF" IN SUPPORT OF PETITION FOR WRIT OF MANDATE (CODE OF CIVIL PROCEDURE $5 1085 AND 1094.5)

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Dther than Petitioner, and Mr. Lahana's unique relationship with CSMC, destroy any basis

for sanctions.

Moreover, Petitioner fully and promptly cooperated, within the limits of the constraints

placed upon him by CSMC and the law imposing confidentiality upon peer review

proceedings, by doing the following:

Furnishing copies of the three CSMC medical charts of patients

referred to in the original CSMC charges (Pet. Ex. B; A.R. P003235;

and G; A.R. P003271; A.R. POO1908-POO2407)

Providing the National Practitioner Data Bank Statements of Petitioner

and CSMC (Pet. Ex. B; A.R. P003244)

Providing the California Medical Board's no action letter of August 23,

2000 concluding, its investigation of the CSMC matter in favor of

petitioner [Pet. Ex. B; A.R. P003242; Pet. Ex. D; A.R. POO3253)l;

Furnishing two or three unrestricted, unqualified information

Authorization and Release forms, one specifically directed to CSMC

(Pet. Ex. F; A.R. P003264; A.R. P003269); Pet. Ex. I, A.R. P003276)

Making no contact with Cedars Sinai Medical Center to prevent its

preparation or transmittal of the records.

Offering to answer any and all questions concerning the CSMC matter

(Pet. Ex. G; A.R. P003270). None were never asked.

In connection with the Application, the Medical Staff and Credentials Committee exercised

no diligence in seeking to procure the CSMC records. Petitioner's efforts to discover

evidence of such efforts were denied by Hanvell

The authorizations and the unconflicting evidence that Petitioner did not delay,

impede, impair or prevent CSMC, which had offered direct cooperation in 1999 (Pet. Ex. B;

A.R. POO3240-POO3241) from producing the records, make it clear that, unlike the physician

in Webnian v. Little Company ofMary Hospital (1995) 39 Cal.App.4th 592) Petitioner did a1

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hat he could to produce the CSMC records, while WHHMC deliberately sat on its hands.

I’hus, it was manifestly unreasonable, arbitrary and unfair for Harwell to find that Petitioner

iid not cooperate. It was a gross malicious miscarriage of justice for the hearing officer to

xadicate Petitioner’s JRC hearing rights in those circumstances.

Receipt of the records from CSMC would have deprived WHHMC and its Staff of the

ioomsday issue they wanted and the hearing officer employed. Hence, they were not sought

iy direct request. Thus, after the unlawful “amendment”, WHHMC, Staff and their counsel

mdertook to create an issue by wrongly asserting that only Petitioner could provide those

naterials,g’ while refraining from any direct efforts to procure them.

[II. CONCLUSION

The court is respectfully urged: 1) to find that Petitioner’s due process and fair

iearing rights were wronghlly, arbitrarily, capriciously, unlawfully and maliciously denied

iy WHHMC, its Staff, its MEC and its Board; 2) to issue its Writ of Mandate remanding the

matter to WHHMC for the required JRC evidentiary hearing, decision and report or,

diel-ilaiiveiy, to reverse the denial of Petitioner’s Application, and 3) to order reinstatement

of Petitioner’s privileges pending conclusion of the mandated JRC hearing and any resulting

Further administrative proceedings.

The requested reinstatement can have no ill effects for Respondents or the public. In

more than 1000 hospital admissions over his more than 14 year career in private practice;

there has never been a patient complaint concerning quality of care.26’

DATED: January 21,2005

Attorneys for Petitioner

z’ The Staffs post-appeal argument submission of a December, 2000 letter adds nothing to the

2&i See footnote 1, ante, p. 1.

evidence; the materials submitted did not relate to the 2001 Application for Reappointment.

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PROOF OF SERVICE

STATE OF CALIFORNLA

COUNTY OF LOS ANGELES

[ am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a arty to the within action. My business address is 12400 Wilshire Boulevard, 15* e loor, Los Angeles, Califorrua 90025-1023.

3 n Janu

OF CIVIL PROCEDURE @ 1085 AND 1094.5) on the interested parties in this acbon by placing a true copy thereof enclosed in a sealed envelope, addressed as follows:

21, 2005, I served the fore oin document s) described as: PETITIONER’S OPENIS BRIEF* IN SUPPORT 8~ P%TITION 6 OR WRIT OF MANDATE (CODE

Ron S. Kaufinan, Es .

Fenigstein & Kaufman 1900 Avenue of the Stars, Suite 2300 Los Angeles, California 90067-43 14

Devin M. Senelick, 2 sq.

[XI (BY MAIL) In accordance with the regular mail collection and processing ractices 3f this business office with which I am familiar, b means of which mail is deposite !i with ihe United States Postal Service at Los An eles, cy alifornia that same day in the ordinary

jate following ordinary business practices, :ourse of business, I deposited such seale B envelope for collection and mailing on this same

: ] (BY PERSONAL SERVICE)

i ] By personally delivering copies to the person served.

[ 3 I delivered the referenced document(s) by hand to the office of the addressee pursuant to C.C.P. $ 1011.

[ 1 I caused the referenced document s) to be delivered by hand to the office of the addressee

caused the referenced document(s) to be delivered to the office of the addressee by

either by overnight courier or by loca i courier service.

te [ I ecopier I or facsimile machine to the telephone number listed. Proof of such delivery is attached to this Proof of Service.

STATE

[XI I declare under penal of perjury under the laws of the State of California that the above is true and correct. Xxecuted on January 21, 2005 at Los Angeles, California.

admgsWetit Crnb Bnef wpd

PETITIONER’S OPENING BRIEF” IN SUPPORT OF PETITION FOR WRIT OF MANDATE (CODE OF C M L PROCEDURE $8 1085 AND 1094.5)

’ I C L J

001527

Fecrtureh Article October 2002

7’;iming The Disruptive Physiciaii By .~&~ZK~wa,ESo.

Anyone who has worked in a hospital for any Jengtli of time probably knows one -- and wishes he didn’t. I’m talking about the disruptive physician. You know h e type, he (and with increasiiig ikqueiicy, she) throws temper tantrums, yells at colleagues. threatens lawsuits if his conduct or iiiedical practice is reviewed, complains to patients about tlie niirsing staff’ and generdly adheres LO tlic belief U i a ~ tlic hospital’s a i d Mcdical Slai‘f’s rules apply to eveiyone but him. The disruptive physician’s impact on patielit care and liospital operations caii be severe. Nurses and support staff may be so intimidated by the disruptive physician’s conduct ‘that they hesitate conttlctiiig him about patient issues for fear of incurring his wrath. Medical Staff‘ iiieiiibers may find liiin so tibusive that: they choose to iiiove their practice elsewliere. Hospital adniiiiistrators may find theill sel ves constanily addressing employee coin pl aiii ts and tlirea ts ol’ hostile work eiivironnienl l i tigaljoii.

So how do you break the cycle and tame the seemingly uiltalnable‘! Here’s a few tips. Jdcnri/j, (”ondiic! 7hc i i 1.v iliiacccpnhlc All applicants to the Medical Staff should be notified a i the time h e y apply for privileges (and when diey are nppoinkd end reappointed) diat disruptive behavior will not: be tolerated. ‘The admoiiition should clearly descri be what conduct is unacceptable and the consequences for acting iiiappropriatdy. The standards should bc set fod i in both the Medical Staff Bylaws m d i n a writtcn Policy and Procediire. Send ‘I ‘he Mc).s,~agc ?*ha/ Ijismpiivc C”onditc[ Will Nor He 7b lcmrcd

Sollietimes the physicinii’s anger or frustration isjustificd, but his reaction is not. For cxmiple, E\ physician may have ci lcgitilnate cause for aiiger il’a iiurse gives h e wrong medication. Yet rather tliaii calmly addressing the situation through ZI private one-on-one conversation, or raising the imtter with the nurse’s sitpervisor, die physician screams at tlie nurse, writes nn inappropriate note in the medical records 01- makes commeiits to the piitieiit about the i iwc‘ s

I

2/6 001528

I , . purported inco etence. SiLuations such as Ilicse must be addressed wilh the physician firmly and inimediutefy. Ignoring abusive conduct unt i l i t becomes intolerable sends tlie wrong message. IC tells others that h a t disruptive physicians are welcome nt your institution. I t also makes it difficult when you Giially do take disciplinaiy action. The physician will point to other physicians who have not been disciplined and argue that hc is being unfairly singled 0111.

(Jse Progressive Discipline

I

A lirst time offender should be counseled face to face by his or her Department Chair. if the physician’s conduct is directed a t a hospital employee, the Chief Executive Officer and/or Hunian Resoiirces representative should attend as well. The Chief of Staff should avoid involvement at l h i s stage since it m y be deemed ti11 “investigdon” under the Medical Staff bylaws and trigger reporting obligations to die Medical Board and Data Baiik if the physician sii b sequ e n t l y v 01 LI i i tn ri I y resigns. The Lolie of the niectiiig slioirld be iion-tlwakniiig, however the physician should be warned that fiirrher disruptive conduct could rcsull in disciplinary action. A subsequcnt inl?actioii should be addressed in another face to face meeting led by die Department Chair and die Chiefof Staff. The tone of the meeting should be harsher. At this point, it inay be appropriate to require the physician to sign a “behavior contract” which sets fol-Lh the Medical Staffs expectations tiiid identifies the

persist. Followiiig the meeting, the Department Chair or Chief 01’ S tafl” should send the physician a letter suiiiniariziiig the ineetirig and reiterating that disruptive conduct will not bedolernted. YX-ing IJiscipLintrry Action - Ile C‘rentivc At solile point, the warnings must end and consequences imposed. I n some instances, this may be done through adiiiiniskative - as opposed to medical staff - sanctions. For example, if die physician‘s priiiiary abuse is yelling at Medical Staff Ofice employees, die facility’s Adiiiiiiistrator cui ban the physician froni tlie Medical Staff OKice. Likewise, if the physician physically tlwes~teiis others,

I the Admiiiislrator ciiii assign a security officer to -lollow the physician diroughout the fi\ci!ity. Bccause diese’ reiiiedies are adminiskative in nahirc arid do not impose a liiiiitntioii on the practi tioner’s privilcges, itley arc mi-repoi-table and do not requirt: ii liir.iiearing prior to implcmentiitg. Preparing For An Admini.vimiive Henring Sometimes Uie only viable rcnicdy is to sanction the pliysician through the Medical Staff’s peer review hearing process. lf so. remember the. following: Uocu m en I disrtrp rive heh (I vior immediate Ly with incident rep o r1.y or rhroirgh olher esrnhlishcd reporring mechrrnisms. I’roseciiliiig disri1I;tive physician cases sometimes requires showing a patteim and practice of disruptive conduct spanning seuerzil years. Due to the passage of time, S O I ~ C witnesses may no longer work a t the facility and cannot be located; other witnesses may have lhiilty mcmories. An incident report, prepared a1 the tiinc ol‘llie incident,

iypes oldiscipiiiie the physician wiii face if hqher violations I

001529

can proside adni. ible evidence of the physiciai; disruptive COlldU c 1. t;JJ.&&hfjSh +rhe fink hcl ween disruptive conducr- wdpatient-cnre. Utider Califorilia law, a physician’s abusive conduct, by itself. is iiisufficieiit to justify disc,iplhary action. The coriduct must impact patient care. See, e .g , Miller v. Eisenhower Medical Center, ( I 980) 27 ,Cn2.3d 614. Under h e federal Health Care Quality Improvement Act (C‘HCQIA’.’), iniaiuiiity exists only if the corrective action is taken h furtherance of quality health care. 42 11.S.C. I I I //. Often the link between conduct.and patient care will be easy to find. A p1iysic;ian who routinely yells nt nurses every t h e they call Iiim at honic impacts patient care if die niirses become too intimidated to make fi..~r.tl~er calls; Likewise, a physician who is constantly late tu h e operutiiig room iiupach patient care especially if his patients are wider general anestliesia during the delay. CJsc an exper1 w i t m w s . There are experts (generally psychiatrists) who are knowledgeable mid well qualified to opine on the psyche of the disruptive physician. Hearing pariel meii>bers who nlay not f~il ly appreciate the disruptive iinpact of a physician may benefit fro111 die testimouy of an expert.. l.’i,czrs on the Mccliccil Stuif’s w., prior counseiitjlg eJfjhrtx Ad i i i i ii j s baa ti 11 e h e a r. i ng pan e I s a 1111 os t a 1 w n y s cons i sts o f , fe 1 I o LV physiciansi By arid ltii-ge, they are a forgiving group when i t coines to iiiiposiiig discipliiic. Tliiis, if the peer- review body believes die disruptive physician did not gel suficient wa~miiig or was otherwise tre a led. unf’il i r 1 y . the d i sr 11 11 ti ve pli y s i c i a 11 w i 1 1 w i 11. cons eq ue 11 t l y einboldeniiig 11iin w i h i*espect to future behavior., i t is therefore imperatise to eniphasize the Medical StafT’s efi’o1-t.s to modify the

’ physicinii’s coiidtict 1)rIor to initiating disciplinary action. ,

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Sent by Fax 3/21\02 - I 1 :30pm

Re: Rape of the Medical Peer Review Process by TENET Health System

Dear Mr. Willick,

A recent government study found that tens of thousands of Americans die each year because of medical errors, (To ERR is Human: Building a Safer Health System” by Kohn) One of the most important tools available to assure the quality of the medical care provided by Physicians, Nurses, Laboratories is the Medical Peer Review Process. It’s purpose is educational but also its duty is to monitor, proctor and recommend solutions in order to prevent that any negligence be repeated in order to protect our patients.

Webster’s Dictionaw -Encvclopedia Edition

Rape: -7. To seize and carry off by force 2. To destroy ( a city, etc.. ,.) as in warfare

At ETRMC and Century City Hospital, both TENET facilities, there is no Medical Peer Review for “insiders”. At Encino Tarzana Regional Medical Center I know of at least 2 cases of f!agrant negligence that did not undergo any review by the OB/GYN Department’s meeting. Strangely, it appears that the Tissue Committee did not review the following 2 cases either. The reason these 2 cases escaped anyreview and, such cases will continue to evade review is that the administration of these Hospitals do not want them to b e reviewed.

It is the duty of the Q & A (Quality Assurance), PI (Performance Improvement) and Risk Management departments to bring those cases to the respective committees for review, These departments of the administration failed to do so. But, that did E t prevent these patients from filing lawsuits against ETRMC and the responsible physicians. Following, please find pertinent documents of the public records of the following 2 cases:

1. 2. Mr. And Mrs. D. Head vs. Micahel Vermesh, M.D., Sunit, Ben-Ozer, M.D. and ETRMC.

Barbara Klein vs . Michael Vermesh, M.D., Sunit, Ben-Ozer, M.D. and ETRMC.

In t h e case of Mrs. Barbara Klein, both Dr. Verrnesh and Dr. Ben-Ozer failed to remove the ectopic pregnancy and removed the wrong tube ! When they realized their mistake, they took Mrs. B. Klein back to the operating room about 10 days later and removed the only remaining tube with the ectopic pregnandy.

In the case of Mrs. Mead, the same 2 physicians removed both of her tubes. The ectopic was in one of these tubes. The consent form signed by M r s . Head prior to

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surgery at ETRMC reads as follows: “Ectopic pregnancy, laparoscopy”. There is no consent for removal of anythinq let alone 2 tubes !!

Furthermore, there is no explanation for the disappearance of 3 frozen embryos! Since, this ectopic pregnancy resulted from an In-Vitro-Fertilization procedure performed by the same medical group, Mrs. Head thought she could get pregnant with those 3 frozen embryos and have another chance.

‘ I strongly believe that had the case of Mrs. Barbara Klein been reviewed with Dr. Verrnesh and Ben-Ozer in the presence of the OBlGYN physicians members of t h e Peer and Chart Review Committee and the OB/GYN Department, they might have not committed the negligence they did about a year later with Mrs. Head.

One of the most important purposes of a genuine Medical Peer Review is to assist the physician in improving the quality of the delivery of the care he I she provides. By depriving these physicians from appropriate Peer Review, this Administration not only violates its own Bylaws, California and Federal Laws, Joint Commission of Accreditation of Hospital Organizatipn (JCAHO) requirements and the Department of Health Setvices (DHS) requirements, but they are responsible for the harm done to patients as a consequence of this lack of “balance and check“.

A “feedback” mechanism is very important for anv organization or living organism. If a bank lacks such a mechanism, it will suffer financial losses. If a Hospital lacks such an important ftinctioti, patients wiii suffer the consequences possibly DEATH. Instead of facing reality, tackle the real issues and attempt to resolve problems, TENET’S Administration maintain a continuous policy of deceit and cover-up.. In your ruling dated 211 9/02, page 1 line 12 you write that: “appropriate medical staff peer review is essential to the operations of Hospitals.. .”. Paradoxically, your statement may not be accurate. In fact, the more complications a physician has, the more income he or she generates for the Hospital. As an example, because Or. Vermesh and Ben-Ozer removed the wrong tube of Mrs. Barbara Klein, missing the tube containing the ectopic pregnancy (which was in the other fallopian tube), they had to re-operate h e r about I O days after the first surgery at ETRMC. Was the 2”d surgery performed at no charge ? Of course not. So, financially it’s to the benefit of the Hospital.

For TENET a “good” physician is a physician that generates “income” which helps the “earnings” of the company at large. But, a physician that generates more money is not necessarily a better physician than another physician that generates relatively less income for the Hospital. For instance, unnecessary Le. not medically indicated, admissions or surgeries will also increase the Hospital’s income even without any complications.

Thus, the hospital has a vested economic interest to “protect” the reputation of such negligent physicians otherwise, any damage to the reputation of those physicians can damage the income of the Hospital. How else can one explain the extra-ordinary motivation and efficiency of ETRMC in “controlling the circulation of the adverse

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information”. No one in the Department of Obstetrics and Gynecology at ETRMC ever heard of either Mrs. Barbara Klein or Mrs. D. Head. The only reason I know about Barbara Klein is because she came to me after Dr. Verrnesh and Ben-Ozer committed their negligent act.

The only reason I know of M f s , & Mr. Head is because their attorney, J. Nutter, called me to ask for my opinion as she was searching for an expert witness.’ Since, 1 have served I3 years on the Peer and Review Committee of our department and never saw either one of these 2 charts reviewed. 1 was stunned to discover how effective the “control of the circulation of information” is at ETRMG. I

You see Mr, Willick, If I had ever removed 2 fallopian tubes from a patient at ETRMC without her consent, I would have had my privileges summarily suspended that same day ! The double standards at ETRMC and other TENET facilities around the country is extra-ordinary.

I h o p e that you now understand why I want the members of this Hearing Committee to be aware of this double standard in these proceedings. According to your statement of 2/19/02; “Appropriate Medical Staff Peer Review.. . .depends upon the participants abiding by the applicable rules” (page 7 line 12 and I 3 of your 2/19/02 ruling). In other words, If I do not comply with your ruling, 1 “compromise” t he “procedure” (line 16). What if your ruling violates not only my rights, but leads to unacceptable lack of fairness? Not only is your statement narrow minded but, extremely dangerous as a matter of public policy.

You see, if a plane crashes, the FAA investigators look for the “black box”. That’s how they were able to determine that a defect in the tail of the DC-9 of Alaska Airlines caused it to nose-dive into the Pacific Ocean off the shores of Los Angeles a few years ago, Thanks to that knowledge, all DC-9 planes around the world had their tail checked and that piece was replaced. Do you realize how many lives were saved thanks to that knowledge? Legitimate, genuine Medical Peer Review is the equivalent of the “black box” that allows FAA investigators to prevent future disasters and loss of human lives.

At ETRMC, physicians who are “insiders” Le. significant income providers do not have their negligent acts reviewed at all. That‘s vety dangerous, On the other hand, physicians like myself who stand up for quality of care and attempt to introduce criteria that will detect such problems are subjected to the most ferocious lynching.

This Hearing has nothing in common with a “bona fide” Medical Peer Review since, it does not intend to enhance in any way the quality of t h e delivery of the medical care I provide.

People who know you Mr. Willick, say: “He used to be a good guy but, since most of his income originate from Hospitals where he serves as a Hearing officer, he got corrupted.

’ Ms. Nutter found my name in the Los Angeles Bar Association Directory of Experts

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If he does not favor the Hospitals they will not call upon him.” They say that the Hospital attorneys refer to you as “Willing Willick”, because you follow diligently their requests. There is most certainly plenty of evidence of it in this alleged Hearing. It saddens me to see what has become of your, once upon a time, distinguished career, I hope for you that you don’t fall one day victim of a negligent insider physician.

I do not know if this letter has helped you grasp the dimension and broad impact of your conduct during these proceedings, at least I made a record of how differently we perceive the same words, “Medical Staff Peer Review”.

Sincerelv Yours.

v / Gil Mileikowsky, M.D.

CC: Medical Staff Office - ETRMC

Er,ricls:rres: I . Cover page of law suit filed by B. Klein on 11/24/97 Case No: LC043226 against M. Vermesh, M,D., TENET et al,

2, Cover page of law s u i t filed by Mrs. & Mr. Head on 12/30/98 Case No: LC046932 against M. Vermesh, M.D., Sunit Ben-Ozer, M.D., ETRMC et al.

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