Supreme Court of California Justia
Citation 45 Cal.4th 1259 46 Cal.4th 679a-modification

Mileikowsky v. West Hills Hosp.

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.


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:
Wed, 06/17/200945 Cal.4th 1259 46 Cal.4th 679a-modificationS156986MReview - 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


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
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
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
West Hills Hospital Medical Center et al., respondents H. Thomas Watson, counsel CRC 8.25b
Jun 10 2008Answer brief on the merits filed
Gil N. Mileikowsky, appellant Charles M. Kagay, counsel
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 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.
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 2008Amicus curiae brief filed
Van Hall Law Offices, amicus curiae Suzanne F. Van Hall, counsel
Oct 20 2008Response to amicus curiae brief filed
West Hills Hospital Medical Center et al, to amicus curiae briefs. by H. Thomas Watson, counsel
Oct 20 2008Response to amicus curiae brief filed
Gil N. Mileikowsky, M.D., Appellant by Charles M. Kagay, counsel
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