Supreme Court of California Justia
Citation 45 Cal. 4th 1259, 203 P.3d 1113, 91 Cal. Rptr. 3d 516

Mileikowsky v. West Hills Hosp.

Filed 4/6/09

IN THE SUPREME COURT OF CALIFORNIA

GIL N. MILEIKOWSKY,
Plaintiff and Appellant,
S156986
v.
Ct.App. 2/8 B186238
WEST HILLS HOSPITAL AND
MEDICAL CENTER et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. BS091943
___________________________________ )

California’s statutory peer review process, Business and Professions Code
section 809 et seq., provides a physician with the right to a hearing for the purpose
of reviewing a hospital peer review committee’s recommendation to deny the
physician’s application for reappointment to staff privileges. A hearing officer
may be appointed to preside at the hearing, but the officer is prohibited by statute
from acting as a prosecutor or advocate or from voting on the merits. (Bus. &
Prof. Code, § 809.2, subd. (b).)1 The merits are determined by the trier of fact,
often a panel drawn from other of the physician’s peers. (Id., subd. (a).) We
conclude the hearing officer lacks authority to prevent a reviewing panel from
reviewing the case by dismissing it on his or her own initiative before the hearing
has been convened, and also lacks authority to terminate the hearing after it has

1
Except as otherwise indicated, all further statutory references are to the
Business and Professions Code.
1


been convened without first securing the approval of the reviewing panel. We
therefore will affirm the judgment of the Court of Appeal.
BACKGROUND
Dr. Gil N. Mileikowsky is a physician and surgeon board certified in
obstetrics and gynecology. He had staff privileges to practice gynecology at West
Hills Hospital and Medical Center (West Hills), an acute care facility. In May
2001, Dr. Mileikowsky applied for obstetrical privileges at West Hills and for
renewal of his gynecological privileges. His applications were reviewed by a peer
review committee, which recommended denial. The recommendation was
submitted to West Hills’s medical executive committee, which also recommended
denial. Dr. Mileikowsky was given formal notice of the recommendation and the
reasons for it: (1) he had failed to notify the medical staff that his privileges at
another facility, Century City Hospital, had been terminated; (2) he had
represented that he had voluntarily resigned from a third facility, the Encino-
Tarzana Regional Medical Center, when in fact he had been summarily
suspended;2 and (3) he had attended a patient at West Hills and attempted to
perform a caesarean section on her when he lacked obstetrical privileges and the
patient had requested he stay away.
On May 23, 2002, Dr. Mileikowsky filed a timely request for a hearing,
challenging the peer review committee’s recommendation. Under West Hills’s
bylaws, hearings are held before a judicial review committee composed of
members of the active staff (the reviewing panel). West Hills’s medical executive
committee appointed a hearing officer to preside over the hearing. The bylaws
specify that hearings are to be held, if possible, no later than 45 days from the date

2
Dr. Mileikowsky’s problems at the Encino-Tarzana Regional Medical
Center are chronicled in Mileikowsky v. Tenet Healthsystem (2005) 128
Cal.App.4th 531.
2


a request for a hearing is received. In Dr. Mileikowsky’s case, however, month
after month went by without a hearing, largely because Dr. Mileikowsky refused
to produce documents requested by West Hills, challenged the hearing officer’s
authority, and refused to comply with the officer’s directions or orders. West Hills
in the meantime amended its notice of the recommendation to include an
allegation that Dr. Mileikowsky had failed to cooperate in West Hills’s
investigation of the actions taken against him by a fourth facility, Cedars-Sinai
Medical Center. The amended notice referred to a report Cedars-Sinai had made
to the Medical Board of California (Medical Board) and to the National
Practitioner Data Bank, indicating Dr. Mileikowsky’s privileges at that facility had
been suspended for actions falling into the adverse action classification of
“Incompetence/Malpractice/Negligence.”
On February 5, 2003, after detailing the many complaints the parties had
made about one another, including West Hills’s complaint that Dr. Mileikowsky
persistently refused to provide information relating to the action taken against him
by Cedars-Sinai Medical Center, the hearing officer ordered Dr. Mileikowsky to
produce the Cedars-Sinai documents, warning he would impose terminating
sanctions should Dr. Mileikowsky fail to comply. Dr. Mileikowsky replied he
would be occupied until March 14 with “other matters” and would respond to the
officer’s order after that date. On March 18, 2003, the hearing officer wrote to the
parties he had received no further communication from Dr. Mileikowsky, ordered
Dr. Mileikowsky to make arrangements to allow inspection and copying of the
Cedars-Sinai documents by March 24, and again warned he would order
terminating sanctions if Dr. Mileikowsky failed to comply.
Dr. Mileikowsky did not comply with the hearing officer’s order. On
March 27, 2003, the hearing officer issued an order dismissing Dr. Mileikowsky’s
request for a hearing, finding Dr. Mileikowsky’s refusal to make the documents
3
available prevented West Hills from prosecuting its case. In dismissing the
proceedings, the officer invoked a provision in West Hills’s bylaws providing that
a physician who fails to request a hearing shall be deemed to have accepted the
action involved, the action will become effective immediately, and the physician
will be deemed to have waived all other rights inuring to him or her under the
bylaws. The order thus declared that the dismissal constituted Dr. Mileikowsky’s
voluntary acceptance of the peer review committee’s recommendation and that the
recommendation therefore “shall become effective immediately.” As a result of
the order, no hearing was convened, and the matter was never submitted to the
reviewing panel for decision.3
Dr. Mileikowsky appealed the order to West Hills’s governing board. The
board adopted the hearing officer’s order, ruling Dr. Mileikowsky had been
afforded a fair hearing in substantial compliance with the bylaws and that the
officer’s decision to dismiss the proceedings was reasonable, warranted, and
supported by the weight of the evidence. Dr. Mileikowsky sought relief in the
superior court by petition for a writ of administrative mandate. The superior court
denied the petition. The Court of Appeal reversed, remanding the matter to the
trial court with directions to enter a judgment directing West Hills and its medical
staff (1) to set aside the governing board’s decision, (2) to convene a hearing
under the provisions of subdivision (c) of section 809.1, and (3) to conduct the

3
West Hills cites a second provision of its bylaws that provides that a
physician’s failure to appear and proceed at the hearing shall be deemed to
constitute voluntary acceptance of the recommendation or action involved and acts
as a waiver of all other rights inuring to the physician under the provisions of the
bylaws. But on this record, the only reason Dr. Mileikowsky failed to appear at
the hearing was because the proceedings were dismissed by the hearing officer
before a hearing was convened. In any event, whatever the provisions of the
bylaws invoked, the order’s effect was to dismiss the proceedings before the
reviewing panel had any involvement in them.
4


hearing and any further proceedings in accordance with the provisions of section
809.2 et seq.
DISCUSSION
I.
Decisions concerning medical staff membership and privileges are made
through a process of hospital peer review. Every licensed hospital is required to
have an organized medical staff responsible for the adequacy and quality of the
medical care rendered to patients in the hospital. (Cal. Code Regs., tit. 22,
§ 70703, subd. (a); Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10.) The medical staff
must adopt written bylaws “which provide formal procedures for the evaluation of
staff applications and credentials, appointments, reappointments, assignment of
clinical privileges, appeals mechanisms and such other subjects or conditions
which the medical staff and governing body deem appropriate.” (Cal. Code Regs.,
tit. 22, § 70703, subd. (b); see Bus. & Prof. Code, § 2282.5; Cal. Code Regs, tit.
22, §§ 70701, 70703.) The medical staff acts chiefly through peer review
committees, which, among other things, investigate complaints about physicians
and recommend whether staff privileges should be granted or renewed. (Arnett, at
p. 10.) In 1989, California codified the peer review process at Business and
Professions Code section 809 et seq., making it part of a comprehensive statutory
scheme for the licensure of California physicians and requiring acute care facilities
such as West Hills to include the process in their medical staff bylaws. (§ 809,
subd. (a)(8).)
The primary purpose of the peer review process is to protect the health and
welfare of the people of California by excluding through the peer review
mechanism “those healing arts practitioners who provide substandard care or who
engage in professional misconduct.” (§ 809, subd. (a)(6).) This purpose also
serves the interest of California’s acute care facilities by providing a means of
5
removing incompetent physicians from a hospital’s staff to reduce exposure to
possible malpractice liability. (Kibler v. Northern Inyo County Local Hospital
Dist. (2006) 39 Cal.4th 192, 199; Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 12.)
Another purpose, also if not equally important, is to protect competent
practitioners from being barred from practice for arbitrary or discriminatory
reasons. Thus, section 809 recites: “Peer review, fairly conducted, is essential to
preserving the highest standards of medical practice” (id., subd. (a)(3)), but “[p]eer
review that is not conducted fairly results in harm both to patients and healing arts
practitioners by limiting access to care” (id., subd. (a)(4)). Peer review that is not
conducted fairly and results in the unwarranted loss of a qualified physician’s right
or privilege to use a hospital’s facilities deprives the physician of a property
interest directly connected to the physician’s livelihood. (Anton v. San Antonio
Community Hosp. (1977) 19 Cal.3d 802, 823.) As one author stated: “It is almost
impossible for a physician to practice medicine today unless she is a medical staff
member at one or more hospitals. This is because a doctor cannot regularly admit
or treat patients unless she is a member of the medical staff. Privileges are
especially important for specialists, like surgeons, who perform the majority of
their services in a hospital setting. For this reason, a hospital’s decision to deny
membership or clinical privileges, or to discipline a physician, can have an
immediate and devastating effect on a practitioner’s career.” (Merkely, Physicians
Policing Physicians: The Development of Medical Staff Peer Review Law at
California Hospitals (2003) 38 U.S.F. L.Rev. 301, 302-303.)
The effect of denying staff privileges extends beyond reducing or
eliminating a physician’s access to the denying facility. Section 805, subdivision
(b) requires that hospitals report certain disciplinary actions, including denials of
staff privileges, to the Medical Board. The Medical Board, which licenses
physicians, must maintain a historical record that includes any reports of
6
disciplinary information. (§ 800, subd. (a)(4); see Arnett v. Dal Cielo, supra, 14
Cal.4th at p. 11.) A hospital considering whether to grant or renew a physician’s
staff privileges must contact the Medical Board to learn if some other facility has
reported a disciplinary action involving the physician. (§ 805.5, subd. (a).) And,
as occurred here, a hospital usually is required to report disciplinary actions to the
National Practitioner Data Bank, established for the purpose of tracking the
activities of incompetent physicians. (42 U.S.C. § 11133(a).)4 A hospital’s
decision to deny staff privileges therefore may have the effect of ending the
physician’s career.
The peer review process, while generally delegating responsibility to the
private sector to monitor the professional conduct of physicians, establishes
minimum protections for physicians subject to adverse action in the peer review
system. (Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th
at p. 201; Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478,
1484.) Where, as here, a peer review committee recommends a “final proposed
action” that will require a hospital to file a report with the Medical Board, the
affected physician is entitled to notice and may request a hearing for the purpose
of determining if the recommendation is reasonable and warranted. (§§ 809.1,
subds. (a), (b), 809.3, subd. (b)(1), (2) & (3).) “The hearing shall be held, as

4
The cited section is part of the Health Care Quality Improvement Act of
1986, title 42 United States Code section 11101 et seq. (HCQIA), enacted to
respond to a “national need to restrict the ability of incompetent physicians to
move from State to State without disclosure or discovery of the physician’s
previous damaging or incompetent performance” (42 U.S.C. § 11101(2)). HCQIA
also includes provisions for peer review, but California elected to “opt out” of
those provisions and instead adopt its own statutory peer review process, to
provide a more careful articulation of the protections for those undertaking peer
review activity and those subject to review, and to better integrate public and
private systems of peer review. (See Bus. & Prof. Code, § 809, subd. (a)(1),
(9)(A) & (B).)
7


determined by the peer review body, before a trier of fact, which shall be an
arbitrator or arbitrators selected by a process mutually acceptable to the licentiate
[i.e., the physician] and the peer review body, or before a panel of unbiased
individuals . . . which shall include, where feasible, an individual practicing the
same specialty as the licentiate.” (§ 809.2, subd. (a).) At the hearing, both parties
have the right to call, examine, and cross-examine witnesses and to present and
rebut evidence. (§ 809.3, subd. (a)(3), (4).) Upon the completion of the hearing,
the parties are entitled to the written decision of the trier of fact, “including
findings of fact and a conclusion articulating the connection between the evidence
produced at the hearing and the decision reached.” (§ 809.4, subd. (a)(1).) Under
West Hills’s bylaws, the reviewing panel is composed of no fewer than five
members of the medical staff. A physician therefore has the right to have a second
body of peers independently determine whether a peer review committee’s
recommendation to deny the physician’s application for privileges is reasonable
and warranted after considering not only the evidence that led to the peer review
committee’s findings, but also any additional evidence produced at the hearing.
II.
Both the Business and Professions Code and West Hills’s bylaws provide
for the appointment of a hearing officer, but both also carefully limit the authority
of the officer. If a physician requests a hearing, the code provides that the medical
executive committee may, but need not, select a hearing officer to preside over the
hearing to be held before the reviewing panel. (§ 809.2, subd. (b).) West Hills’s
bylaws confer authority on the officer to maintain decorum at the hearing and
ensure that all parties have a reasonable opportunity to be heard and to present oral
and documentary evidence. Both the statutory scheme and West Hills’s bylaws
caution that the hearing officer is not to act as a prosecuting officer or advocate,
and both recite that the hearing officer “shall not be entitled to vote.” (§ 809.2,
8
subd. (b).) The reviewing panel resolves any conflicts in the evidence, determines
its sufficiency, and determines the reasonableness of the recommended
disciplinary action.
A hearing officer without the authority to determine sufficiency of the
evidence may not entertain a motion to dismiss the proceedings for lack of
evidence. (See Frost v. State Personnel Board (1961) 190 Cal.App.2d 1, 3-7.)
Here, while the hearing officer did not dismiss the proceedings for lack of
evidence, by dismissing the proceedings before the hearing was convened the
officer prevented the reviewing panel from considering the evidence and
eliminated the reviewing panel’s role in the decisionmaking process. Whether the
hearing officer had the power to take such action presents a question of law which
we review de novo. (Mileikowsky v. Tenet Healthsystem, supra, 128 Cal.App.4th
at p. 555; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607,
618-619; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1442-1444.)
No provision in either the Business and Professions Code or West Hills’s
bylaws expressly confers authority on a hearing officer to issue terminating
sanctions. West Hills, however, contends such authority is implicit in section
809.2, subdivision (d). That subdivision grants each party the right to inspect and
copy relevant documentary information in the other party’s possession. It then
provides: “The failure by either party to provide access to this information at least
30 days before the hearing shall constitute good cause for a continuance. The
right to inspect and copy by either party does not extend to confidential
information referring solely to individually identifiable licentiates, other than the
licentiate under review. The arbitrator or presiding officer shall consider and rule
upon any request for access to information, and may impose any safeguards the
protection of the peer review process and justice requires.” (§ 809.2, subd. (d).)
9
In West Hills’s view, a hearing officer’s power to impose safeguards to
protect the peer review process embraces the authority to issue terminating
sanctions for a party’s failure to comply with requests for information. But that
the Legislature intended for section 809.2, subdivision (d) to confer on the hearing
officer the power to impose sanctions beyond granting or denying continuances is
dubious. After generally stating the right of each party to have access to
information in the other party’s possession, subdivision (d) addresses two
situations. The first is that a party might fail to provide access to information.
After identifying that possibility, subdivision (d) states that the failure to provide
timely access “shall constitute good cause for a continuance.” The second is that a
document might contain confidential information relating to someone who is not a
party to the proceedings. After identifying that possibility, subdivision (d) confers
authority on the hearing officer to “rule upon any request for access to
information, [and to] impose any safeguards the protection of the peer review
process and justice requires.” Read in context, the provision for imposing
safeguards clearly seems directed to the situation in which the material a physician
requests to inspect or copy includes confidential information related to physicians
who are not parties to the proceedings; in that case, the statute authorizes the
hearing officer to redact or otherwise limit the information to protect the
confidentiality of the nonparty physicians while still protecting “the peer review
process and justice” by providing the physician access to otherwise discoverable
material.
While the statutory language seems clear, a broad interpretation of the
officer’s statutory powers might nonetheless be justified if granting the hearing
officer authority to issue terminating sanctions were consistent with the goals of
the statutory review process and its allocation of responsibilities for reviewing a
peer review committee’s recommendation. But it is not. The purpose for
10
providing a physician with a review of the peer review committee’s
recommendation is to secure for the physician an independent review of that
recommendation by a qualified person or entity, here the reviewing panel. That
purpose is defeated if the matter is dismissed before the reviewing panel becomes
involved. Further, irrespective of a hearing officer’s authority at the hearing or
over the evidence adduced there, the officer, who “shall not be entitled to vote”
(§ 809.2, subd. (b)), has no part in the decisionmaking process and no authority to
prevent the reviewing panel from reviewing the recommendation. Yet, in effect, a
hearing officer who prevents the reviewing panel from conducting its review
“votes” by ensuring that the peer review committee’s recommendation will be the
final decision.
A physician’s refusal to cooperate in an investigation of reported problems
may support a recommendation that the physician’s staff privileges be denied.
(See Webman v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592, 602-
603.)5 However, it also is settled that a physician may not be denied staff
privileges merely because he or she is argumentative or has difficulty getting
along with other physicians or hospital staff, when those traits do not relate to the

5
In Webman, the peer review committee recommended denial of a
physician’s staff privileges for the physician’s failure to cooperate in an
investigation of an adverse action taken against him at another facility. The
reviewing panel affirmed the recommendation. The court agreed, pointing out the
hospital had reason to be concerned about the quality of care the physician might
provide and was justified in denying privileges to the physician for his conduct in
obstructing the investigation, conduct that made it difficult or impossible for the
hospital to learn whether or not its concerns were well founded. (Webman v. Little
Co. of Mary Hospital
, supra, 39 Cal.App.4th at pp. 602-603.) The hearing officer
apparently adopted the same reasoning here, concluding that Dr. Mileikowsky’s
failure to cooperate justified the recommendation to deny staff privileges. But
whether Dr. Mileikowsky’s conduct disclosed that he was unable to deliver high
quality medical care at West Hills was a question for the reviewing panel, not the
hearing officer.
11


quality of medical care the physician is able to provide. (Miller v. Eisenhower
Medical Center (1980) 27 Cal.3d 614, 627-629; Rosner v. Eden Township
Hospital Dist. (1962) 58 Cal.2d 592, 598.) For similar reasons, a physician’s
obstructiveness in connection with the reviewing process might, but will not
necessarily, support a conclusion the physician is unable to function in a hospital
setting. As it is the reviewing panel and not the hearing officer that determines
whether the peer review committee’s recommendation is warranted, it is the
reviewing panel that should decide whether or not the physician’s inability or
refusal to engage in the reviewing process suffices to render any further
proceedings unnecessary.
We hold, therefore, that the hearing officer lacked authority to prevent the
reviewing panel from fulfilling its statutory duty to review the peer review
committee’s recommendation to deny Dr. Mileikowsky’s applications.6
III.
The error was not in any way cured by Dr. Mileikowsky’s subsequent
appeal to West Hills’s governing board and the board’s affirmation of the hearing
officer’s order. Hospitals have a dual structure. The administrative governing
body, which might not include health care professionals, takes ultimate
responsibility for the quality and performance of the hospital. The hospital’s
medical staff evaluates staff applications and credentials, appointments,
reappointments, and assignments of clinical privileges. (Alexander v. Superior
Court (1993) 5 Cal.4th 1218, 1224.) It is not inconceivable a governing body
would wish to remove a physician from a hospital staff for reasons having no

6
Nothing in our decision should be understood to limit the power of an
arbitrator or panel of arbitrators to impose terminating sanctions when the
arbitrator or panel of arbitrators is appointed under section 809.2, subdivision (a)
to both preside over the hearing and determine the merits of the peer review
committee’s recommendation.
12


bearing on quality of care. In Smith v. Selma Community Hospital, supra, 164
Cal.App.4th 1478, for example, there was evidence suggesting a hospital’s
governing board might have sought to terminate a physician’s privileges because
the physician owned and operated clinics that competed with the hospital’s
corporate owner, or because of a lawsuit between the physician and the corporate
owner arising from the owner’s failed attempt to purchase the physician’s clinics.
(Id. at pp. 1489-1490, 1512-1513, 1517.) Accordingly, although a hospital’s
administrative governing body makes the ultimate decision about whether to grant
or deny staff privileges, it does so based on the recommendation of its medical
staff committee (Alexander, at pp. 1218, 1224), giving “great weight to the actions
of peer review bodies . . .” (§ 809.05, subd. (a)). Here, the board gave no weight
to the actions of any peer review body. It simply affirmed the hearing officer’s
order on its finding that Dr. Mileikowsky’s prehearing conduct justified
termination of the proceedings. This procedure violated both the letter and the
underlying principles of the statutory peer review process.
IV.
We are not unmindful of the burdens the hearing process imposes on busy
practitioners who voluntarily serve on a reviewing panel. Our decision here
should not be understood to mean the reviewing panel must involve itself in
procedural or evidentiary issues. Neither do we intend to suggest the hearing
officer lacks the power to preside over the hearing, including, as required by West
Hills’s bylaws, the power to maintain decorum and ensure that all participants in
the hearing have a reasonable opportunity to be heard and to present oral and
documentary evidence. But an order dismissing the proceedings is a far cry from
a ruling on a procedural or evidentiary issue, and a reviewing panel is equally if
not more qualified to determine when a party’s refusal to cooperate has so
interfered with the panel’s ability to resolve the issues as to justify sanctions.
13
We hold only that once a hearing has been requested, the review process may not
be concluded without the reviewing panel’s informed approval. Mileikowsky v.
Tenet Healthsystem, supra, 128 Cal.App.4th 531, therefore is disapproved to the
extent it holds that a hearing officer without the approval of the reviewing entity
may terminate a hearing as a sanction for the physician’s conduct in disobeying
orders or disrupting hearing sessions. (Id. at pp. 560-562.) But we have no
complaint with the hearing officer’s ruling in that case that the hearing would be
recessed whenever Dr. Mileikowsky, who had reacted emotionally and yelled in
reaction to a ruling, was “out of control” (id. at p. 542), or the officer’s ruling that
the hospital could disclose to the reviewing panel that Dr. Mileikowsky had
violated the officer’s discovery orders (id. at p. 543).
We also are cognizant of the arguments that limiting a hearing officer’s
remedial power to granting continuances will encourage disruptive behavior and
that unless a hearing officer has the power to impose sanctions, an obstructive
physician may be able to extend the review process unreasonably, endangering the
public health and welfare and forcing a facility’s other practitioners to monitor the
physician’s actions until his or her appointment expires or the hearing is
completed. The arguments raise legitimate concerns, but we are not convinced
they justify allowing a hearing officer to impose terminating sanctions.
In the most severe cases, where the failure to take action may result in an
imminent danger to the health of any individual, the physician’s clinical privileges
can be summarily suspended. (§ 809.5.) Even when there is no summary
suspension, a physician generally would wish to have the hearing held as soon as
possible, if only to resolve uncertainty about his or her status at the hospital. A
delay in the proceedings will injure a physician economically when the
physician’s privileges have been denied, summarily suspended, or restricted, or if
they expire without the physician’s reappointment. In the present case, for
14
example, Dr. Mileikowsky could not practice obstetrics at West Hills because he
was never granted privileges for that practice. He was entitled to practice
gynecology until his gynecological privileges expired, and he was allowed a 60-
day extension of those privileges, but even that extension expired long before the
hearing officer dismissed the proceedings. And, that a physician’s staff privileges
expire in the absence of reappointment protects the hospital against the possibility
a physician whose work is substandard could forever impede the hospital’s ability
to deliver quality medical care.7
In addition, section 809.6, subdivision (a) authorizes hospitals to develop
their own procedures and provides that parties to peer review proceedings “are
bound by any additional notice and hearing provisions contained in any applicable
professional society or medical staff bylaws which are not inconsistent with [the
statutory peer review process].” A hospital therefore has power through its bylaws
to provide additional protections against obstructive behavior. Thus, although we
conclude a hearing officer may not on his or her own initiative dismiss the
proceedings, we see no reason why a hospital might not create through its bylaws
a simplified procedure that would allow a reviewing panel to consider and adopt a
hearing officer’s recommendation that the proceedings be dismissed for a
physician’s failure to cooperate. And a reviewing panel reasonably could infer
from a physician’s failure to provide information that the information in question

7
We held in Anton v. San Antonio Community Hosp., supra, 19 Cal.3d 802,
that a physician with staff privileges had a right to reappointment until the
governing authorities determined after a fair hearing that the physician did not
meet the reasonable standards of the hospital. (Id. at pp. 824-825.) We were not
there confronted with a delay caused by the physician’s failure to cooperate, and
our remarks should not be construed to suggest a hospital is required to renew or
extend an existing appointment when the proceedings are delayed by the
physician’s obstructive conduct.
15


is unfavorable or tends to show the physician cannot or will not cooperate with
others and for that reason may be unwilling or unable to function effectively in a
hospital setting.
Finally, we question West Hills’s assertion that it could not proceed without
evidence only Dr. Mileikowsky could provide. West Hills’s peer review
committee, as a result of an informal investigation, determined grounds existed for
denying or refusing to extend staff privileges to Dr. Mileikowsky. West Hills
presumably had some evidence to support the peer review committee’s
allegations. It had no need for information possessed by Dr. Mileikowsky to
establish the validity of the allegation that he had failed to notify the medical staff
his privileges at Century City Hospital had been terminated or the allegation that
he had misrepresented that his resignation from Encino-Tarzana Regional Medical
Center had been voluntary. Similarly, West Hills did not need Dr. Mileikowsky’s
evidence to substantiate the allegation that Dr. Mileikowsky had attended a patient
at West Hills and had prepared to perform a caesarian section on her even though
he lacked obstetrical privileges and she had requested he stay away. Nor did West
Hills require information in Dr. Mileikowsky’s possession to persuade the
reviewing panel Dr. Mileikowsky had failed to cooperate in West Hills’s
investigation of the actions taken against him by the other hospitals. The validity
of the allegation Cedars-Sinai Medical Center had reported Dr. Mileikowsky’s
privileges had been suspended for actions falling into the adverse action
classification of “Incompetence/Malpractice/Negligence” is fully supported by the
existence of the report itself, a document West Hills was required to, and did,
obtain from the Medical Board. (§ 805.5.) There seems little reason to conclude
Dr. Mileikowsky’s refusal to provide information would have prevented West
Hills from making its case had the hearing been held within the 45-day period set
16
forth in West Hills’s bylaws or the 60-day period contained in section 809.2,
subdivision (h).
The code contains protections against the possibility a physician might
attempt to obtain some advantage by refusing to reveal the nature of his arguments
or supporting evidence until the hearing. For example, the hearing officer is
entitled to consider a party’s lack of cooperation when ruling on that party’s own
request for information. (§ 809.2, subd. (e)(4).) Initial applicants for hospital
privileges may not introduce “information not produced upon request of the peer
review body during the application process, unless the initial applicant establishes
that the information could not have been produced previously in the exercise of
reasonable diligence.” (§ 809.3, subd. (b)(2).) In all cases, the hearing officer, as
indicated, has the power to grant a continuance if a party fails to provide access to
information in that party’s possession. (§ 809.2, subd. (d).) A party’s failure to
disclose the identity of a witness or produce copies of documents the party expects
to submit at the hearing at least 10 days before the hearing also is good cause for a
continuance. (§ 809.2, subd. (f).) Similarly, section 809.2, subdivision (h), which
requires that a hearing be commenced within 60 days after receipt of the request
for a hearing and that the peer review process be completed within a reasonable
time, creates an exception when the physician fails to comply with the obligation
to allow inspection and copying of documentary information.
V.
In sum, we are not persuaded the power granted the hearing officer to
“impose any safeguards the protection of the peer review process and justice
requires” (§809.2, subd. (d)) includes authority to terminate the peer review
process without the reviewing panel’s approval, or that the interests of the people
of California and their medical facilities to preserve the highest standards of
17
medical practice cannot be protected without implying such authority into the
statutory scheme. It follows that the hearing officer’s order dismissing the
proceedings was unauthorized. And, as decisions relating to clinical privileges are
the province of a hospital’s peer review bodies and not its governing body, West
Hills’s governing board similarly lacked the authority to ratify the order of
dismissal.
We therefore affirm the judgment of the Court of Appeal.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

18





DISSENTING OPINION BY KENNARD, J.

Plaintiff physician Gil N. Mileikowsky applied for obstetrical privileges
and renewal of gynecological privileges at defendant West Hills Hospital and
Medical Center in Los Angeles County. Defendant’s medical executive
committee recommended a denial for these reasons: (1) plaintiff failed to disclose
termination of his staff privileges at Century City Hospital in Los Angeles County;
(2) plaintiff misrepresented that his resignation from Encino-Tarzana Regional
Medical Center in Los Angeles County was voluntary; and (3) plaintiff attempted
to perform a caesarean section on a patient at defendant hospital when he lacked
obstetrical privileges there and ignored the patient’s request that he not treat her.
When plaintiff thereafter asked for a hearing, defendant hospital appointed
an attorney as a hearing officer, as well as a reviewing panel consisting of
defendant’s active physician members.
In the ensuing statutorily authorized discovery process, which spanned
eight months, plaintiff repeatedly refused numerous requests for access to
documents related to the revocation of his staff privileges at Cedars-Sinai Medical
Center. Twice, the hearing officer issued an order for production of those
documents, to no avail. Eventually, the hearing officer imposed, for plaintiff’s
noncompliance and abuse of the peer review process, the sanction of terminating
1


the proceedings.1 The majority holds that the hearing officer lacked the authority
to do so. I disagree.
I
Pertinent here is Business and Professions Code section 809.2, subdivision
(d). That provision governs the discovery obligations and rights of the physician
and the peer review body.2 It states that breach of those obligations is “good
cause” for a continuance of the hearing, and provides that the discovery right does
not extend to disclosure of confidential information regarding licensed personnel
other than the physician in question. It then states: “The arbitrator or presiding
officer shall consider and rule upon any request for access to information, and
may impose any safeguards the protection of the peer review process and justice
requires.” (Italics added.)3 The majority construes that provision as authorizing a

1
This is the third case in which a termination sanction has been imposed
against plaintiff for willful abuse of discovery obligations to produce documents.
Just four years ago, in Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th
262, the Court of Appeal upheld a trial court order terminating, as a sanction,
plaintiff’s civil lawsuits against Tenet Healthsystem, Encino-Tarzana Regional
Medical Center, and numerous individuals. And in Mileikowsky v. Tenet
Healthsystem
(2005) 128 Cal.App.4th 531, disapproved by the majority here (maj.
opn., ante, at p. 14), the same Court of Appeal panel upheld a hearing officer’s
sanction of terminating a hospital peer review proceeding for, among other things,
plaintiff’s noncompliance with orders to produce documents relating to Cedars-
Sinai Medical Center’s termination of plaintiff’s medical staff privileges — the
same information that plaintiff refused to furnish here — and disruptions of the
peer review hearing sessions by yelling, disobeying the hearing officer’s rulings,
and using abusive language against witnesses, the hearing officer, and others. (Id.
at pp. 542-552.)
2
The definition of “peer review body” includes the medical staff of a health
care facility. (Bus. & Prof. Code, § 805, subd. (a)(1)(A).) If a physician requests
a hearing concerning a hospital’s proposed action to deny staff privileges, a
hearing is held either before an arbitrator or a panel that is mutually acceptable to
the physician and the “peer review body.”
3
Business and Professions Code section 809.2, subdivision (d), provides:
“The licentiate shall have the right to inspect and copy at the licentiate’s expense
any documentary information relevant to the charges which the peer review body
2


hearing officer only to grant continuances and to redact or otherwise limit
disclosure of confidential information relating to nonparties. (Maj. opn., ante, at
p. 10.) I do not share that overly restrictive interpretation.
In my view, the provision’s critical phrase is the one that I have just
italicized, stating that, in ruling on “any request for access to information,” the
hearing officer “may impose any safeguards” to protect the peer review process
and to advance justice. On its face, this is language granting expansive authority,
not language restricting authority.
According to the majority, however, the provision’s last sentence, which
permits the hearing officer to “ ‘impose any safeguards the protection of the peer
review process and justice requires,’ ” refers only to that provision’s penultimate
sentence, which pertains to “the situation in which the material a party requests to
inspect or copy includes confidential information related to physicians who are not
parties to the proceedings . . . .” (Maj. opn., ante, at p. 10, italics added.) In that
situation, the majority states, subdivision (d)’s last sentence “authorizes the
hearing officer to redact or otherwise limit the information to protect the
confidentiality of the nonparty physician while . . . providing the physician access
to otherwise discoverable material.” (Maj. opn., ante, at p. 10.) But that
interpretation is inconsistent with the rest of the statutory language that the hearing
officer’s power to take appropriate action to protect the peer review process and to

has in its possession or under its control, as soon as practicable after the receipt of
the licentiate’s request for a hearing. The peer review body shall have the right to
inspect and copy at the peer review body’s expense any documentary information
relevant to the charges which the licentiate has in his or her possession or control
as soon as practicable after receipt of the peer review body’s request. The failure
by either party to provide access to this information at least 30 days before the
hearing shall constitute good cause for a continuance. The right to inspect and
copy by either party does not extend to confidential information referring solely to
individually identifiable licentiates, other than the licentiate under review. The
arbitrator or presiding officer shall consider and rule upon any request for access
to information, and may impose any safeguards the protection of the peer review
process and justice requires.”
3


advance justice applies to “any request for access to information” (Bus. & Prof.
Code, § 809.2, subd. (d), italics added), not just those involving nonparty
physicians.
To not allow a hearing officer presiding over a peer review proceeding to
impose a termination sanction for a party’s egregious abuse of the discovery
process would undermine the hearing officer’s ability to control recalcitrant parties
and curb flagrant abuses of the statutory discovery process. Contrary to the
majority’s assertion (maj. opn., ante, at p. 11), such authority would not interfere
with the reviewing panel’s task of determining whether the physician possesses
the requisite professional competence or qualifications. The sanctioning power at
issue is aimed at protecting the integrity of the peer review process. Just as a court
has the power to order dismissal as a sanction for egregious abuse of the discovery
process (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subd. (d)), so too
should a hearing officer presiding over a peer review proceeding have the power
to impose a termination sanction. In either instance, great leeway is necessary to
control parties who deliberately flout orders for discovery compliance. Without
such authority, a physician who is the subject of a peer review proceeding can,
through obstructive conduct, unduly delay the statutorily required reporting to the
Medical Board of California of an unfavorable decision. (Bus. & Prof. Code,
§ 805, subd. (b).)
In summary, I am of the view that a hearing officer presiding over a peer
review proceeding does have the power to impose a sanction of terminating the
proceeding, but only in egregious circumstances. This case fits into that category,
as discussed below.
4
II
I summarize the events leading up to the hearing officer’s order to
terminate the peer review proceeding as a sanction for plaintiff’s willful
noncompliance with rulings and orders made in the discovery process:
1. On July 16, 2002, the hearing officer wrote to the parties to complete the
exchange of documents so that a hearing could be scheduled.
2. On July 17, the attorney for defendant hospital’s medical staff wrote to
plaintiff that the medical staff had not received documents relating to actions taken
against plaintiff by Cedars-Sinai Medical Center and that continued failure to
produce the documents would result in amending the charges to include a failure
to cooperate.
3. On July 29, plaintiff wrote back, stating that he would respond by
August 5.
4. On August 21, after plaintiff had failed to respond, the medical staff
amended the notice of charges to include plaintiff’s refusal to cooperate in
defendant hospital’s investigation of plaintiff’s suspension from Cedars-Sinai
Medical Center. As the majority notes, the “amended notice referred to a report
Cedars-Sinai had made to the Medical Board of California (Medical Board) and to
the National Practitioner Data Bank, indicating Dr. Mileikowsky’s privileges at
that facility had been suspended for actions falling into the adverse action
classification of ‘Incompetence/Malpractice/Negligence.’ ” (Maj. opn., ante, at
p. 3.)
5. On September 3, plaintiff wrote to the hearing officer that he would not
be able to respond to the amended charge until September 10.
6. On October 3, the medical staff notified the hearing officer that plaintiff
still had not furnished the requested Cedars-Sinai Medical Center documents, and
it requested the hearing officer to order plaintiff to comply.
5

7. On November 27, the medical staff wrote to the hearing officer that
plaintiff’s failure to provide the Cedars-Sinai Medical Center documents made it
difficult to set a formal hearing date.
8. On December 6, the hearing officer ordered the parties to exchange by
January 10, 2003, all information and documents requested.
9. On January 6, 2003, the medical staff notified the hearing officer that
plaintiff had furnished some of the requested documents, but not the Cedars-Sinai
Medical Center documents.
10. On January 12, plaintiff wrote to the medical staff demanding
reinstatement of his privileges and stating that he had provided releases
authorizing defendant hospital and Cedars-Sinai Medical Center to exchange
information.4
11. On January 14, the medical staff notified the hearing officer that the
requested Cedars-Sinai Medical Center documents were in the possession of either
plaintiff or his counsel, and it asked that the peer review proceeding be terminated.
12. On February 5, the hearing officer determined that plaintiff had failed
to respond to the various requests for information he was required to produce, that
the Cedars-Sinai Medical Center documents were clearly relevant, and that
plaintiff’s refusal to produce those documents was “deliberate and intentional.”
The hearing officer, however, denied the medical staff’s request that termination
of the peer review proceedings be imposed as a sanction, but he did order plaintiff
to produce the documents at issue and advised him that failure to comply would
lead to termination of the peer review proceeding.

4
The majority suggests that whatever evidence defendant hospital still
needed after the investigation, it could obtain that information from sources other
than plaintiff. (Maj. opn., ante, at p. 16.) What the majority overlooks is
defendant hospital’s right to discovery from plaintiff. (Bus. & Prof. Code, § 809.2,
subd. (d).) In addition, at oral argument, counsel for defendant hospital mentioned
that a hospital lacks subpoena power and that Cedars-Sinai Medical Center, which
had suspended plaintiff, did not respond to defendant hospital’s request for
information pertaining to the suspension.
6



13. Plaintiff then informed the hearing officer that he would respond after
March 14.
14. On March 18, when plaintiff still had not complied, the hearing officer
ordered plaintiff to respond by March 24 and told him that failure to do so would
lead to an order terminating the proceedings.
15. On March 27, when plaintiff still had not responded, the hearing
officer, in a 12-page decision, imposed the termination sanction. The decision
noted: “The record reflects that the Medical Staff made many requests for this
documentary information and many orders were made by the hearing officer
directing Dr. Mileikowsky to produce such documents. Dr. Mileikowsky did not
comply with these orders to produce documentary information. Dr. Mileikowsky
failed to comply with many orders made by the hearing officer in this matter,
involving such disparate issues as improper ex parte communications, manner and
delivery of notices, motions and briefs and other procedural [and] substantive []
orders seeking civility and courtesy. Dr. Mileikowsky advised the hearing officer
on several occasions that he had a right to ignore the hearing officer’s orders.”
As summarized above, the record before this court shows that plaintiff
repeatedly ignored the dates set to produce the documents requested. It was only
when plaintiff disobeyed the hearing officer’s order for production of the
requested documents that the termination sanction was imposed. Plaintiff’s
egregious abuse of the discovery process justified that sanction.5
The aim of the discovery process is to ferret out the truth and thus promote
justice. This goal underlies Business and Professions Code section 809.2,
subdivision (d), which governs the discovery rights and obligations of the

5
Business and Profession Code section 809.2, subdivision (d), specifically
states that the “peer review body,” that is, the medical staff (see fn. 3, ante), “shall
have the right to inspect and copy at the [medical staff’s] expense any
documentary information relevant to the charges which the [physician] has in his
or her possession or control as soon as practicable after receipt of the [medical
staff’s] request.”
7


physician and the peer review body. This is apparent from the provision’s phrase
that, in ruling “upon any request for access to information,” the hearing officer
“may impose any safeguards the protection of the peer review process and justice
requires.” (Ibid., italics added.) To not allow a hearing officer to impose a
sanction of terminating a peer review proceeding for a party’s egregious abuse of
the discovery process would make a mockery of the Legislature’s statement I just
quoted.
I would reverse the judgment of the Court of Appeal.
KENNARD,
J.
I CONCUR:
BAXTER, J.
8
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Mileikowsky v. West Hills Hospital & Medical Center
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 154 Cal.App.4th 752
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S156986
Date Filed: April 6, 2009

__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Dzintra I. Janavs

__________________________________________________________________________________

Attorneys for Appellant:

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

Davis, Cowell & Bowe and Andrew J. Kahn for Union of American Physicians and Dentists as Amicus
Curiae on behalf of Plaintiff and Appellant.

Center for Constitutional Litigation, Valerie Nannery; The Arkin Law Firm and Sharon J. Arkin for
American Association for Justice, Association of American Physicians & Surgeons, Consumer Attorneys
of California, The E-Accountability Foundation, Government Accountability Project, Health
Administration Responsibility Project, Inc., Health Care Patient Advocates, Legal Affairs Council, The
Liberty Coalition, National Whistleblower Center, No Fear Coalition, OSC Watch, Semmelweis Society
International and U.S. Bill of Rights Foundation as Amici Curiae on behalf of Plaintiff and Appellant.

Francisco J. Silva and Astrid G. Meghrigian for American Medical Association and California Medical
Association as Amici Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Horvitz & Levy, David S. Ettinger, H. Thomas Watson; Fenigstein & Kaufman, Ron S. Kaufman and Nina
B. Ries for Defendants and Respondents.

Manatt, Phelps & Phillips, Barry S. Landsberg and Terri D. Keville for Catholic Healthcare West and Tenet
Healthcare Corporation as Amici Curiae on behalf of Defendants and Respondents.

Arent Fox, Lowell C. Brown and Patricia M. Kosich for Kaiser Foundation Health Plan, Inc., Kaiser
Foundation Hospitals, The Permanente Medical Group, Inc., and The Southern California Permanente
Medical Group as Amici Curiae on behalf of Defendants and Respondents.


Page 2 – S156896 – counsel continued

Attorneys for Respondent:

Lois Richardson; Arent Fox, Lowell C. Brown and Patricia M. Kosich for California Hospital Association
as Amicus Curiae on behalf of Defendants and Respondents.

Van Hall Law Offices and Suzanne F. Van Hall as Amici Curiae on behalf of Defendants and Respondents.

Ware Law Group and Kimberly Ware as Amici Curiae on behalf of Defendants and Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Charles M. Kagay
Spiegel Liao & Kagay
388 Market Street, Suite 900
San Francisco, CA 94105
(415) 956-5959

H. Thomas Watson
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800

Lowell C. Brown
Arent Fox
555 W. Fifth Street, 49th Floor
Los Angeles, CA 90013-1065
(213) 629-7400


Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issue: Does the presiding hearing officer in a medical peer review proceeding have the authority to terminate the hearing as a sanction for a party's failure to cooperate in discovery, or must that decision be made by the hearing committee empowered to decide the case on the merits?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 04/06/200945 Cal. 4th 1259, 203 P.3d 1113, 91 Cal. Rptr. 3d 516S156986Review - Civil Appealclosed; remittitur issued

Parties
1Mileikowsky, Gil N. (Plaintiff and Appellant)
Represented by Charles M. Kagay
Spiegel Liao & Kagay, LLP
388 Market Street, Suite 900
San Francisco, CA

2Mileikowsky, Gil N. (Plaintiff and Appellant)
Represented by Paul M. Hittelman
Attorney at Law
11999 San Vincente Boulevard, Suite 350
Los Angeles, CA

3West Hills Hospital Medical Center (Defendant and Respondent)
Represented by H. Thomas Watson
Horvitz & Levy, LLP
15760 Ventura Boulevard, 18th Floor
Encino, CA

4West Hills Hospital Medical Center (Defendant and Respondent)
Represented by Ron S. Kaufman
Fenigstein & Kaufman
1900 Avenue of the Stars, Suite 2300
Los Angeles, CA

5Medical Staff Of West Hills Hospital Medical Center (Defendant and Respondent)
Represented by H. Thomas Watson
Horvitz & Levy, LLP
15760 Ventura Boulevard, 18th Floor
Encino, CA

6Medical Staff Of West Hills Hospital Medical Center (Defendant and Respondent)
Represented by Ron S. Kaufman
Fenigstein & Kaufman
1900 Avenue of the Stars, Suite 2300
Los Angeles, CA

7Union Of American Physicians & Dentists (Amicus curiae)
Represented by Andrew J. Kahn
Davis Cowell & Bowe
595 Market Street, Suite 1400
San Francisco, CA

8American Medical Association (Amicus curiae)
Represented by Astrid Gloria Meghrigian
California Medical Association
1201 "J" Street, Suite 200
Sacramento, CA

9California Academy Of Attorneys For Health Care Professional (Amicus curiae)
28441 Highridge Road, Suite 201
Rolling Hills Estate, CA 90274

10California Medical Association (Amicus curiae)
Represented by Astrid Gloria Meghrigian
CMA Legal Counsel
221 Main Street
Suite 200
San Francisco, CA

11California Medical Association (Amicus curiae)
Represented by Francisco Javier Silva
California Medical Association
221 Main Street, Suite 560
San Francisco, CA

12Van Hall Law Offices (Amicus curiae)
Represented by Suzanne Fullerton Vanhall
Van Hall Law Offices
31692 Horseshoe Drive
Evergreen, CO

13Ware Law Group (Amicus curiae)
Represented by Kimberly S Ware
Ware Law Group
1500 Park Avenue, Suite 212
Emeryville, CA

14Catholic Healthcare West (Amicus curiae)
Represented by Terri D. Keville
Manatt Phelps et al.
11355 West Olympic Boulevard
Los Angeles, CA

15Tenet Healthcare Corporation (Amicus curiae)
Represented by Terri D. Keville
Manatt Phelps et al.
11355 West Olympic Boulevard
Los Angeles, CA

16Kaiser Foundation Health Plan, Inc. (Amicus curiae)
Represented by Lowell C. Brown
Arent Fox, LLP
555 W. Fifth Street, 48th Floor
Los Angeles, CA

17Kaiser Foundation Hospitals (Amicus curiae)
Represented by Lowell C. Brown
Arent Fox, LLP
555 W. Fifth Street, 48th Floor
Los Angeles, CA

18Permanente Medical Group, Inc. (Amicus curiae)
Represented by Lowell C. Brown
Arent Fox, LLP
555 W. Fifth Street, 48th Floor
Los Angeles, CA

19Southern California Permanente Medical Group (Amicus curiae)
Represented by Lowell C. Brown
Arent Fox, LLP
555 W. Fifth Street, 48th Floor
Los Angeles, CA

20California Hospital Association (Amicus curiae)
Represented by Lois Jeanne Richardson
California Healthcare Association
1215 "K" Street, Suite 800
Sacramento, CA

21California Hospital Association (Amicus curiae)
Represented by Lowell C. Brown
Arent Fox, LLP
555 W. Fifth Street, 48th Floor
Los Angeles, CA

22American Association For Justice (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

23American Association For Justice (Amicus curiae)
Represented by Sharon J. Arkin
The Arkin Law Firm
333 S. Grand Avenue, 25th Floor
Los Angeles, CA

24Association Of American Physicians & Surgeons (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

25Consumer Attorneys Of California (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

26E-Accountability Foundation (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

27Government Accountability Project (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

28Health Administration Responsibility Project, Inc. (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

29Health Care Patient Advocates (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

30Legal Affairs Council (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

31Liberty Coalition (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

32National Whistleblower Center (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

33No Fear Coalition (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

34Osc Watch (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

35Semmelweis Society International (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC

36U.S. Bill Of Rights Foundation (Amicus curiae)
Represented by Valerie Maria Nannery
Center for Constitutional Litigation, P.C.
777 Sixth Street N.W., Suite 520
Washington, DC


Opinion Authors
OpinionJustice Kathryn M. Werdegar
ConcurJustice Joyce L. Kennard

Disposition
Apr 6 2009Opinion: Affirmed

Dockets
Oct 5 2007Petition for review filed
  West Hils Hospital Medical Center and Medical Staff of West Hills Hospital Medical Center, respondents by H. Thomas Watson, counsel
Oct 5 2007Record requested
 
Oct 10 2007Received Court of Appeal record
 
Oct 15 2007Request for extension of time filed
  Appellant (Gil M. Mileikowsky) requesting extension till November 14, 2007, to file his answer to pettiion for review. by Charles M. Kagay, counsel
Oct 19 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's answer to the petition for review is extended to and including November 2, 2007.
Oct 29 2007Answer to petition for review filed
  Gil N. Mileikowsky, appellant Charles M. Kagay, counsel
Nov 9 2007Reply to answer to petition filed
  West Hills Hospital Medical Center, et al., respondents H. Thomas Watson, counsel CRC 8.25b
Nov 28 2007Received:
  letter in support of defdts/petrs or in the alternative, depub request; from atty Lowell C. Brown for the Calif. Hospital Assn. (Note: time to file depub request expired 10/26/07)
Nov 30 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including January 3, 2008 or the date upon which review is either granted or denied.
Dec 12 2007Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Dec 12 2007Letter sent to:
  both parties; conflicts letter
Dec 21 2007Certification of interested entities or persons filed
  Gil N. Mileikowsky, appellant Charles M. Kagay, counsel
Dec 24 2007Certification of interested entities or persons filed
  West Hills Hospital Medical Center, respondents H. Thomas Watson, counsel
Dec 24 2007Request for extension of time filed
  45-days to serve and file the respondent's opening brief on the merits West Hills Hospital Medical Center, respondents H. Thomas Watson, counsel
Jan 7 2008Extension of time granted
  On application of respondent and good causing appearing, it is ordered that the time to serve and file respondent West Hills Hospital Medical Center's opening brief on the merits is extended to and including February 25, 2008. No further extension is contemplated.
Feb 13 2008Request for extension of time filed
  30-days until March 26, 2008, to serve and file respondent's opening brief on the merits West Hills Hospital Medical Center, et al., respondents H. Thomas Watson, counsel
Feb 14 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent West Hills Medical Center's opening brief on the merits is extended to and including March 26, 2008. No further extension will be contemplated.
Mar 27 2008Opening brief on the merits filed
  West Hills Hospital Medical Center et al., respondents H. Thomas Watson, counsel CRC 8.25b
Apr 16 2008Request for extension of time filed
  45-days until June 10, 2008, to serve and file appellant's answer brief on the merits Gil N. Mileikowsky, appellant Charles M. Kagay, counsel
Apr 18 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's answer brief on the merits is extended to and including June 10, 2008.
Jun 10 2008Answer brief on the merits filed
  Gil N. Mileikowsky, appellant Charles M. Kagay, counsel
Jun 13 2008Request for extension of time filed
  30-days, until July 30, 2008, to serve and file the reply brief on the merits West Hills Medical Center, et al., respondents H. Thomas Watson, counsel
Jun 18 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent West Hills Medical Center's reply brief on the merits is extended to and including July 30, 2008. No further extension is contemplated.
Jun 23 2008Received application to file Amicus Curiae Brief
  Union of American Physicians and Dentists in support of respondent. by Andrew J. Kahn, counsel
Jun 26 2008Permission to file amicus curiae brief granted
  The application of Union of American Physicians and Dentists for permission to file an amicus curiae brief in support of respondent is hereby granted. Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under rule 8.520 (f)(2).
Jun 26 2008Amicus curiae brief filed
  Union of American Physicians & Dentists, amicus curiae Andrew J. Kahn, counsel
Jul 30 2008Reply brief filed (case fully briefed)
  West Hills Medical Center, et al., respondents H. Thomas Watson, counsel
Aug 26 2008Received application to file Amicus Curiae Brief
  American Medical Association, amicus curiae Astrid G. Meghrigian, counsel
Aug 28 2008Amicus curiae brief filed
  The application of the American Medical Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 28 2008Received application to file Amicus Curiae Brief
  Kaiser Foundation Health Plan, Inc., et al., amicus curiae Lowell C. Brown, counsel
Aug 28 2008Received application to file Amicus Curiae Brief
  California Hospital Association, amicus curiae Lowell C. Brown, counsel
Aug 29 2008Received application to file Amicus Curiae Brief
  Van Hall Law Offices, amicus curiae Suzanne F. Van Hall, counsel
Aug 29 2008Received application to file Amicus Curiae Brief
  American Association for Justice et al., in support of appellant by Valerie Nannery, counsel
Aug 29 2008Received application to file Amicus Curiae Brief
  Catholic Healthcare West and Tenet Healthcare Corporation in support of respondents by Terri D. Keville, counsel
Aug 29 2008Received application to file Amicus Curiae Brief
  Ware Law Group in supppor of respondent. by Kimberly Ware, counsel
Aug 29 2008Received:
  Amicus curiae letter in support of the California Medical Association/American Medical Association's amicus curiae brief previously submitted California Academy of Attorneys for Health Care Professionals, amicus curiae Marvin Firestone, MD, JD, Vice President
Sep 4 2008Amicus curiae brief filed
  Ware Law Group, amicus curiae in support of respondent Kimberly Ware, counsel
Sep 4 2008Amicus curiae brief filed
  Catholic Healthcare West and Tenet Healthcare Corporation, amicus curiae Terri D. Keville, counsel
Sep 4 2008Amicus curiae brief filed
  American Association for Justice, et al., in support of appellant Valerie Nannery, counsel
Sep 4 2008Amicus curiae brief filed
  Kaiser Foundation Health Plan, Inc., et al., amicus curiae Lowell C. Brown, counsel
Sep 4 2008Amicus curiae brief filed
  California Hospital Association, amicus curiae Lois Richardson, counsel
Sep 10 2008Permission to file amicus curiae brief granted
  The application of Van Hall Law Offices for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 10 2008Amicus curiae brief filed
  Van Hall Law Offices, amicus curiae Suzanne F. Van Hall, counsel
Sep 10 2008Request for extension of time filed
  20-days, to serve and file a consolidated answer to amicus curiae briefs Gil N. Mileikowsky, appellant Charles M. Kagay, counsel and West Hills Hospital Medical Center, et al., respondents H. Thomas Watson, counsel
Sep 16 2008Extension of time granted
  On joint application of appellant and respondent and good cause appearing, it is ordered that the time to serve and file appellant Gil N. Mileikowsky's and respondents West Hills Hospital Medical Center, et al., consolidated answers to amicus curiae briefs is extended to and including October 20, 2008.
Oct 16 2008Note: Mail returned (unable to forward)
  copy of order sent to California Academy of Attorneys for Health Care Prof., Marvin Firestone
Oct 16 2008Received:
  Amicus curiae request and letter in support of the amicus curiae brief filed by the American Association for Justice (AAJ) and its associated amici; by the American College of Legal Medicine (ACLM), amicus curiae Michael M. Raskin, MD., ACLM President
Oct 20 2008Response to amicus curiae brief filed
  West Hills Hospital Medical Center et al, to amicus curiae briefs. by H. Thomas Watson, counsel Consolidated Response
Oct 20 2008Response to amicus curiae brief filed
  Gil N. Mileikowsky, M.D., Appellant by Charles M. Kagay, counsel consolidated response
Nov 4 2008Filed:
  with permission letter dated October 29, 2008, from attorney Richard H. Levenstein, in support of the amicus curiae brief filed by the American Association for Justice
Nov 19 2008Filed:
  letter dated November 19, 2008, regarding disqualification of Justice Werdegar Gil N. Mileikowsky, Appellate by Charles M. Kagay, counsel
Dec 10 2008Case ordered on calendar
  to be argued on Tuesday, January 6, 2009, at 9:00 a.m., in San Francisco
Dec 22 2008Application filed
  "Request to Divide Oral Argument" filed by David Ettinger, counsel for respondents West Hills Hospital Medical Center et al., requesting to share 10 minutes of argument time with amici curiae California Hospital Association et al.
Dec 23 2008Order filed
  The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae California Hospital Association et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Jan 6 2009Cause argued and submitted
 
Apr 3 2009Notice of forthcoming opinion posted
 
Apr 6 2009Opinion filed: Judgment affirmed in full
  Majority Opinion by Werdegar, J. Joined by George C.J., Chin, Moreno and Corrigan, JJ. Dissenting Opinion by Kennard J. Joined by Baxter J.
Apr 20 2009Rehearing petition filed
Defendant and Respondent: West Hills Hospital Medical CenterAttorney: H. Thomas Watson  
Apr 22 2009Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 2, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 27 2009Received:
  Letter opposing petition for rehearing California Medical Association, non-party by Astrid G. Meghrigian, counsel
Apr 28 2009Answer to rehearing petition filed
Plaintiff and Appellant: Mileikowsky, Gil N.Attorney: Charles M. Kagay  
May 29 2009Request for modification of opinion filed (rehearing pending)
  California Hospital Association, amicus curiae by Sarah G. Benator, counsel
Jun 3 2009Filed:
  letter dated June 3, 2009, in response to the California Hospital Association's letter of May 29, 2009. Gil N. Mileikowsky, petitioner by Charles M. Kagay, counsel
Jun 17 2009Rehearing denied; opinon modified
  The opinion is modified. The petition for rehearing is denied. Kennard and Baxter, JJ., are of the opinion the petition should be granted.
Jun 17 2009Opinion modified - no change in judgment
 
Jun 17 2009Remittitur issued
 

Briefs
Mar 27 2008Opening brief on the merits filed
 
Jun 10 2008Answer brief on the merits filed
 
Jun 26 2008Amicus curiae brief filed
 
Jul 30 2008Reply brief filed (case fully briefed)
 
Aug 28 2008Amicus curiae brief filed
 
Sep 4 2008Amicus curiae brief filed
 
Sep 4 2008Amicus curiae brief filed
 
Sep 4 2008Amicus curiae brief filed
 
Sep 4 2008Amicus curiae brief filed
 
Sep 4 2008Amicus curiae brief filed
 
Sep 10 2008Amicus curiae brief filed
 
Oct 20 2008Response to amicus curiae brief filed
 
Oct 20 2008Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 4, 2010
Annotated by rmdaines

Facts:
Dr. Gil Mileikowsky, a physican and surgeon board certified in obstetrics and gynecology applied for staff privileges to practice obstetrics at West Hills Hospital and Medical Center and for renewal of his gynecology privileges. His applications were submitted to the hospital’s peer review committee and the committee recommended denial. The medical executive committee also recommended denial of the applications. The formal reasons for rejection were (1) failure to notify the medical staff about termination of his privileges at another hospital, (2) he said he had resigned from a third hospital, when he was actually suspended, and (3) he had attempted to perform a caesarean section on a patient at West Hills when she did not want him to attend her and he did not have privileges to do so.
Dr. Mileikowsky filed a request for a hearing appealing the peer review committee’s recommendation. The bylaws of the hospital provides that such a hearing was to be held before a judicial review committee made of members of active staff at the hospital no more than 45 days after the request for the hearing was made. Per procedure, a hearing officer was appointed by West Hills to preside over the hearing.
The hearing officer requested, on behalf of West Hills, that Dr. Mileikowsky submit several documents. However, he refused to produce the documents and refused to comply with the hearing officer’s orders. This lack of cooperation led West Hills to add a fourth allegation: that Dr. Mileikowsky failed to cooperate in an investigation into the suspension of his privileges at Cedars-Sinai Hospital, which West Hills believed was for “Incompetence/Malpractice/Negligence.” The hearing officer made one last request to Dr. Mileikowsky for the Cedars-Sinai documents and warned him that he would terminate the proceedings if the documents were not provided. Despite a second warning from the hearing officer, Dr. Mileikowsky still did not provide the documents. The hearing officer then issued an order dismissing Dr. Mileikowsky’s request for a hearing, activating a provision in West Hills’ bylaws providing that a physician who does not request a hearing is deemed to have accepted the action, the action becomes effective, and the physician waives all rights related to the proceedings.
Dr. Mileikowsky appealed the order to the West Hills’s governing board, which adopted the hearing officer’s order, ruling that the order was reasonable and warranted.

Issues:
(1) Does the hearing officer of a peer review judicial review committee have the authority to dismiss proceedings before the hearing is convened before the committee?
(2) If not, was the procedural error cured by subsequent appeal to the West Hills governing board and the board’s affirmation of the hearing officer’s order?

Holdings:
(1) The hearing officer lacked authority to dismiss the proceedings before the hearing was convened because it prevented the committee from fulfilling its statutory duty.
(2) The error was not cured by the subsequent appeal.

Thus, once a hearing appealing a peer review board’s decision is requested, the review process cannot be dismissed without the review panel’s informed approval

Analysis
(1) The court held that Business and Professions Code § 809.2, subd. (d) did not confer implied authority on a hearing officer to issue terminating sanctions. That subdivision does provide that the hearing officer “may impose any safeguards the protection of the peer review process and justice requires.” However, the court interpreted that clause as protecting against disclosure of confidential information about a third-party, not merely the refusal of a party to provide evidence. Instead, the court pointed out as recourse for non-disclosure a clause in the statute that states that the failure to disclose information “shall constitute good cause for a continuance.” Furthermore, the court pointed out that allowing a hearing officer to terminate a proceeding does not comport with the goals of a chance to appeal a peer review committee’s decision: to secure independent review of the decision. Also, the fact that Bus. and Prof. Code § 809.2 subd (b) provides that a hearing officer “shall not be entitled to vote” suggests that she should not have a part in the decision making process or authority to make such a decision. However, the court recognized that termination of proceedings might be an appropriate remedy for an uncooperative physician, but only when ordered by the reviewing panel.
(2) The error was not cured merely because the reviewing board subsequently affirmed the decision because it undermines the dual structure of Hospitals. The reviewing panel is made up of people who might not be health care professionals, whereas the original peer review board is made up of peer physicians or other medical professionals. The reviewing panel makes a decision under the advisement of the peer review board. Here, instead, they made a decision based solely on the decision of the hearing officer, again violating the principles of peer review.

Dissent:
In the dissent, the minority disagrees with the majority’s interpretation of Bus. & Prof. Code § 809.2 subd. (d), arguing that the clause permitting the hearing officer to “impose any safeguards…” does give the hearing officer implicit authority to use terminating sanctions when there is an “egregious abuse of the discovery process.” In this view, the sanctioning power itself does not undermine, but protects the peer review process.