Stanford Law School - Robert Crown Law Library

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, 06/17/2009	45 Cal.4th 1259 46 Cal.4th 679a-modification	S156986M	Review - Civil Appeal	closed; remittitur issued

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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