Citation 45 Cal.4th 1259
46 Cal.4th 679a-modification
Mileikowsky v. West Hills Hosp.
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?
Filed 6/17/09
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
___________________________________ )
MODIFICATION OF OPINION
THE COURT:
The opinion herein, appearing at 45 Cal.4th 1259, is modified as follows:
1.
The text of footnote 4 appearing in 45 Cal.4th at page 1268 is deleted in its
entirety and the following text substituted: The cited section is part of the Health Care
Quality Improvement Act of 1986, title 42 United States Code section 11101 et seq.,
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)).
2.
The last sentence appearing in 45 Cal.4th at page 1275 is deleted and the
following sentence substituted: And, as decisions relating to clinical privileges are
generally the province of a hospital’s peer review bodies and not its governing body (but
see § 809.05, subds. (b) & (c)), West Hills’s governing board similarly lacked the
authority to ratify the order of dismissal.
This modification does not affect the judgment.
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
___________________________________ )
MODIFICATION OF OPINION
THE COURT:
The opinion herein, appearing at 45 Cal.4th 1259, is modified as follows:
1.
The text of footnote 4 appearing in 45 Cal.4th at page 1268 is deleted in its
entirety and the following text substituted: The cited section is part of the Health Care
Quality Improvement Act of 1986, title 42 United States Code section 11101 et seq.,
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)).
2.
The last sentence appearing in 45 Cal.4th at page 1275 is deleted and the
following sentence substituted: And, as decisions relating to clinical privileges are
generally the province of a hospital’s peer review bodies and not its governing body (but
see § 809.05, subds. (b) & (c)), West Hills’s governing board similarly lacked the
authority to ratify the order of dismissal.
This modification does not affect the judgment.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Wed, 06/17/2009 | 45 Cal.4th 1259 46 Cal.4th 679a-modification | S156986M | Review - Civil Appeal | closed; remittitur issued |
Parties
| 1 |
American 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 |
| 2 |
American Association For Justice (Amicus curiae) Represented by Sharon J. Arkin The Arkin Law Firm 333 S. Grand Avenue, 25th Floor Los Angeles, CA |
| 3 |
American Medical Association (Amicus curiae) Represented by Astrid Gloria Meghrigian California Medical Association 1201 "J" Street, Suite 200 Sacramento, CA |
| 4 |
Association 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 |
| 5 |
California Academy Of Attorneys For Health Care Professional (Amicus curiae) 28441 Highridge Road, Suite 201 Rolling Hills Estate, CA 90274 |
| 6 |
California Hospital Association (Amicus curiae) Represented by Lois Jeanne Richardson California Healthcare Association 1215 "K" Street, Suite 800 Sacramento, CA |
| 7 |
California Hospital Association (Amicus curiae) Represented by Lowell C. Brown Arent Fox, LLP 555 W. Fifth Street, 48th Floor Los Angeles, CA |
| 8 |
California Medical Association (Amicus curiae) Represented by Astrid Gloria Meghrigian CMA Legal Counsel 221 Main Street Suite 200 San Francisco, CA |
| 9 |
California Medical Association (Amicus curiae) Represented by Francisco Javier Silva California Medical Association 221 Main Street, Suite 560 San Francisco, CA |
| 10 |
Catholic Healthcare West (Amicus curiae) Represented by Terri D. Keville Manatt Phelps et al. 11355 West Olympic Boulevard Los Angeles, CA |
| 11 |
Consumer 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 |
| 12 |
E-Accountability Foundation (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 13 |
Government Accountability Project (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 14 |
Health 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 |
| 15 |
Health 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 |
| 16 |
Kaiser Foundation Health Plan, Inc. (Amicus curiae) Represented by Lowell C. Brown Arent Fox, LLP 555 W. Fifth Street, 48th Floor Los Angeles, CA |
| 17 |
Kaiser Foundation Hospitals (Amicus curiae) Represented by Lowell C. Brown Arent Fox, LLP 555 W. Fifth Street, 48th Floor Los Angeles, CA |
| 18 |
Legal Affairs Council (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 19 |
Liberty Coalition (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 20 |
Medical 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 |
| 21 |
Medical 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 |
| 22 |
Mileikowsky, Gil N. (Plaintiff and Appellant) Represented by Charles M. Kagay Spiegel Liao & Kagay, LLP 388 Market Street, Suite 900 San Francisco, CA |
| 23 |
Mileikowsky, Gil N. (Plaintiff and Appellant) Represented by Paul M. Hittelman Attorney at Law 11999 San Vincente Boulevard, Suite 350 Los Angeles, CA |
| 24 |
National Whistleblower Center (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 25 |
No Fear Coalition (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 26 |
Osc Watch (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 27 |
Permanente Medical Group, Inc. (Amicus curiae) Represented by Lowell C. Brown Arent Fox, LLP 555 W. Fifth Street, 48th Floor Los Angeles, CA |
| 28 |
Semmelweis Society International (Amicus curiae) Represented by Valerie Maria Nannery Center for Constitutional Litigation, P.C. 777 Sixth Street N.W., Suite 520 Washington, DC |
| 29 |
Southern California Permanente Medical Group (Amicus curiae) Represented by Lowell C. Brown Arent Fox, LLP 555 W. Fifth Street, 48th Floor Los Angeles, CA |
| 30 |
Tenet Healthcare Corporation (Amicus curiae) Represented by Terri D. Keville Manatt Phelps et al. 11355 West Olympic Boulevard Los Angeles, CA |
| 31 |
U.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 |
| 32 |
Union Of American Physicians & Dentists (Amicus curiae) Represented by Andrew J. Kahn Davis Cowell & Bowe 595 Market Street, Suite 1400 San Francisco, CA |
| 33 |
Van Hall Law Offices (Amicus curiae) Represented by Suzanne Fullerton Vanhall Van Hall Law Offices 31692 Horseshoe Drive Evergreen, CO |
| 34 |
Ware Law Group (Amicus curiae) Represented by Kimberly S Ware Ware Law Group 1500 Park Avenue, Suite 212 Emeryville, CA |
| 35 |
West Hills Hospital Medical Center (Defendant and Respondent) Represented by H. Thomas Watson Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 36 |
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 |
| Disposition | |
| Apr 6 2009 | Opinion: Affirmed |
| Dockets | |
| Oct 5 2007 |
Petition 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 2007 | Record requested |
| Oct 10 2007 | Received Court of Appeal record |
| Oct 15 2007 |
Request 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 2007 |
Extension 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 2007 |
Answer to petition for review filed Gil N. Mileikowsky, appellant Charles M. Kagay, counsel |
| Nov 9 2007 |
Reply to answer to petition filed West Hills Hospital Medical Center, et al., respondents H. Thomas Watson, counsel CRC 8.25b |
| Nov 28 2007 |
Received: 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 2007 |
Time 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 2007 |
Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Dec 12 2007 |
Letter sent to: both parties; conflicts letter |
| Dec 21 2007 |
Certification of interested entities or persons filed Gil N. Mileikowsky, appellant Charles M. Kagay, counsel |
| Dec 24 2007 |
Certification of interested entities or persons filed West Hills Hospital Medical Center, respondents H. Thomas Watson, counsel |
| Dec 24 2007 |
Request 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 2008 |
Extension 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 2008 |
Request 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 2008 |
Extension 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 2008 |
Opening brief on the merits filed West Hills Hospital Medical Center et al., respondents H. Thomas Watson, counsel CRC 8.25b |
| Apr 16 2008 |
Request 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 2008 |
Extension 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 2008 |
Answer brief on the merits filed Gil N. Mileikowsky, appellant Charles M. Kagay, counsel |
| Jun 13 2008 |
Request 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 2008 |
Extension 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 2008 |
Received application to file Amicus Curiae Brief Union of American Physicians and Dentists in support of respondent. by Andrew J. Kahn, counsel |
| Jun 26 2008 |
Permission 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 2008 |
Amicus curiae brief filed Union of American Physicians & Dentists, amicus curiae Andrew J. Kahn, counsel |
| Jul 30 2008 |
Reply brief filed (case fully briefed) West Hills Medical Center, et al., respondents H. Thomas Watson, counsel |
| Aug 26 2008 |
Received application to file Amicus Curiae Brief American Medical Association, amicus curiae Astrid G. Meghrigian, counsel |
| Aug 28 2008 |
Amicus 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 2008 |
Received application to file Amicus Curiae Brief Kaiser Foundation Health Plan, Inc., et al., amicus curiae Lowell C. Brown, counsel |
| Aug 28 2008 |
Received application to file Amicus Curiae Brief California Hospital Association, amicus curiae Lowell C. Brown, counsel |
| Aug 29 2008 |
Received application to file Amicus Curiae Brief Van Hall Law Offices, amicus curiae Suzanne F. Van Hall, counsel |
| Aug 29 2008 |
Received application to file Amicus Curiae Brief American Association for Justice et al., in support of appellant by Valerie Nannery, counsel |
| Aug 29 2008 |
Received application to file Amicus Curiae Brief Catholic Healthcare West and Tenet Healthcare Corporation in support of respondents by Terri D. Keville, counsel |
| Aug 29 2008 |
Received application to file Amicus Curiae Brief Ware Law Group in supppor of respondent. by Kimberly Ware, counsel |
| Aug 29 2008 |
Received: 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 2008 |
Amicus curiae brief filed Ware Law Group, amicus curiae in support of respondent Kimberly Ware, counsel |
| Sep 4 2008 |
Amicus curiae brief filed Catholic Healthcare West and Tenet Healthcare Corporation, amicus curiae Terri D. Keville, counsel |
| Sep 4 2008 |
Amicus curiae brief filed American Association for Justice, et al., in support of appellant Valerie Nannery, counsel |
| Sep 4 2008 |
Amicus curiae brief filed Kaiser Foundation Health Plan, Inc., et al., amicus curiae Lowell C. Brown, counsel |
| Sep 4 2008 |
Amicus curiae brief filed California Hospital Association, amicus curiae Lois Richardson, counsel |
| Sep 10 2008 |
Permission 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 2008 |
Amicus curiae brief filed Van Hall Law Offices, amicus curiae Suzanne F. Van Hall, counsel |
| Sep 10 2008 |
Request 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 2008 |
Extension 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 2008 |
Note: Mail returned (unable to forward) copy of order sent to California Academy of Attorneys for Health Care Prof., Marvin Firestone |
| Oct 16 2008 |
Received: 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 2008 |
Response 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 2008 |
Response to amicus curiae brief filed Gil N. Mileikowsky, M.D., Appellant by Charles M. Kagay, counsel consolidated response |
| Nov 4 2008 |
Filed: 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 2008 |
Filed: letter dated November 19, 2008, regarding disqualification of Justice Werdegar Gil N. Mileikowsky, Appellate by Charles M. Kagay, counsel |
| Dec 10 2008 |
Case ordered on calendar to be argued on Tuesday, January 6, 2009, at 9:00 a.m., in San Francisco |
| Dec 22 2008 |
Application 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 2008 |
Order 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 2009 | Cause argued and submitted |
| Apr 3 2009 | Notice of forthcoming opinion posted |
| Apr 6 2009 |
Opinion 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 2009 | Rehearing petition filed |
| Apr 22 2009 |
Time 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 2009 |
Received: Letter opposing petition for rehearing California Medical Association, non-party by Astrid G. Meghrigian, counsel |
| Apr 28 2009 | Answer to rehearing petition filed |
| May 29 2009 |
Request for modification of opinion filed (rehearing pending) California Hospital Association, amicus curiae by Sarah G. Benator, counsel |
| Jun 3 2009 |
Filed: 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 2009 |
Rehearing 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 2009 | Opinion modified - no change in judgment |
| Jun 17 2009 | Remittitur issued |
| Briefs | |
| Mar 27 2008 |
Opening brief on the merits filed West Hills Hospital Medical Center et al., respondents H. Thomas Watson, counsel CRC 8.25b |
| Jun 10 2008 |
Answer brief on the merits filed Gil N. Mileikowsky, appellant Charles M. Kagay, counsel |
| Jun 26 2008 |
Amicus curiae brief filed Union of American Physicians & Dentists, amicus curiae Andrew J. Kahn, counsel |
| Jul 30 2008 |
Reply brief filed (case fully briefed) West Hills Medical Center, et al., respondents H. Thomas Watson, counsel |
| Aug 28 2008 |
Amicus 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. |
| Sep 4 2008 |
Amicus curiae brief filed Ware Law Group, amicus curiae in support of respondent Kimberly Ware, counsel |
| Sep 4 2008 |
Amicus curiae brief filed Catholic Healthcare West and Tenet Healthcare Corporation, amicus curiae Terri D. Keville, counsel |
| Sep 4 2008 |
Amicus curiae brief filed American Association for Justice, et al., in support of appellant Valerie Nannery, counsel |
| Sep 4 2008 |
Amicus curiae brief filed Kaiser Foundation Health Plan, Inc., et al., amicus curiae Lowell C. Brown, counsel |
| Sep 4 2008 |
Amicus curiae brief filed California Hospital Association, amicus curiae Lois Richardson, counsel |
| Sep 10 2008 |
Amicus curiae brief filed Van Hall Law Offices, amicus curiae Suzanne F. Van Hall, counsel |
| Oct 20 2008 |
Response to amicus curiae brief filed West Hills Hospital Medical Center et al, to amicus curiae briefs. by H. Thomas Watson, counsel |
| Oct 20 2008 |
Response to amicus curiae brief filed Gil N. Mileikowsky, M.D., Appellant by Charles M. Kagay, counsel |
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