Powell v. Bear Valley Cmty. Hosp.

231 Cal. Rptr. 3d 381, 22 Cal. App. 5th 263
CourtCalifornia Court of Appeal, 5th District
DecidedMarch 26, 2018
DocketD072616
StatusPublished
Cited by4 cases

This text of 231 Cal. Rptr. 3d 381 (Powell v. Bear Valley Cmty. Hosp.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell v. Bear Valley Cmty. Hosp., 231 Cal. Rptr. 3d 381, 22 Cal. App. 5th 263 (Cal. Ct. App. 2018).

Opinion

O'ROURKE, J.

*267The Board of Directors (the Board) of Bear Valley Community Hospital (Bear Valley) denied Dr. Robert O. Powell's advancement from provisional to active staff membership and reappointment to Bear Valley's medical staff. Dr. Powell appeals from the superior court judgment denying his petition for writ of mandate to void the Board's decision and for reinstatement of his medical staff privileges. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brownwood, Texas

Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center *385(Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications.1 Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents-behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges. *268The Texas State Board of Medical Examiners (Texas Board) completed an investigation of Dr. Powell's revocation of staff privileges at Brownwood. In a letter dated September 12, 2001 (2001 letter), the Texas Board advised Dr. Powell that its investigation, file No. "00-1243," was being "CLOSED with no action recommended because the evidence does not indicate a violation of the Texas Medical Practice Act." The Texas Board authorized him to use the 2001 letter, signed by the chief of investigations, to inform other entities of the case "closure."

Brownwood reported its revocation of Dr. Powell's clinical privileges to the National Practitioner Data Bank (Data Bank), citing "issues of unprofessional conduct." In 2003, Dr. Powell submitted a responsive statement to the Data Bank, in which he asserted that Brownwood revoked his privileges "without factual or legal justification and in direct violation of state law." He further stated that "the [Texas Board] investigated the allegations against me, concluded in my favor, and dismissed the allegations as unsupportable. The dismissal was confirmed by letter dated September 12, 2001 from ... [the] chief of investigations ...." Finally, Dr. Powell's responsive statement indicated that he had filed a lawsuit against Brownwood for terminating his privileges.

Dr. Powell's lawsuit against Brownwood, which included claims for breach of contract and tortious interference with prospective business relationships, was dismissed when the trial court granted Brownwood's motion for summary judgment. The judgment was affirmed on appeal (Texas court opinion). ( Powell v. Brownwood Reg'l Hosp., Inc. (Tex.App., Sept. 9, 2004, No. 11-03-00171-CV), 2004 WL 2002929 p. *1 2004 Tex.App. LEXIS 8202 p. *1.) The Texas court opinion recounted certain events leading to Brownwood's termination of Dr. Powell's privileges, including his failure to advise the hernia patient's parents of surgical complications.

Post-Brownwood

In subsequent years, Dr. Powell obtained staff privileges at other medical facilities. In 2009, however, he applied for privileges at Eisenhower Medical Center in Rancho Mirage, California, which inquired into the reasons for his termination of privileges at Brownwood. Dr. Powell withdrew his application for privileges before Eisenhower Medical Center could make a final decision whether to grant them. Bear Valley, California

In October 2011, Dr. Powell applied for appointment to the medical staff at Bear Valley. On his initial application form, Dr. Powell was required to attest *269whether his clinical privileges had ever been revoked by any medical facility and if so, to separately provide "full details" under penalty *386of lost privileges or a denied application. Dr. Powell responded "yes" and separately disclosed as follows:

"Brownwood ... terminated my privileges without factual or legal justification. This action was reported to the Texas ... Board ... and ... Data Bank. The Texas ... Board investigated allegations against me and determined in my favor. This dismissal was confirmed by letter dated September 12, 2001.
"[The Texas Board] determined that the evidence presented by the hospital did not indicate [a] violation of the Medical Practice Act. Consequently, all allegations were dismissed with no disciplinary action taken."

Dr. Powell also conversed with several members of Bear Valley's medical executive committee (MEC) regarding his termination of privileges at Brownwood: Drs. Dennis Carden, Steven Knapik, and Michael Norman. Dr. Carden, the chief of staff and liaison between the MEC and the Board, learned from Dr. Powell that Brownwood terminated his privileges because its management disagreed with Dr. Powell's use of advanced and/or costly surgical procedures. Dr. Powell told Dr. Knapik that his termination of privileges arose from him "not getting along with" a pediatric patient's parents and that the patient suffered "no bad clinical outcome." Dr. Norman, the credentialing chair, was aware that Brownwood had terminated Dr. Powell's privileges but considered the event largely irrelevant because it occurred many years ago and there had been no recent incidents. Dr. Powell did not include in his application materials an actual copy of the 2001 letter. Based on the MEC's recommendation, the Board approved Dr. Powell's appointment as a member of the provisional medical staff for one year.

In due course, 12 of Dr. Powell's surgical patients' charts (charts) were peer reviewed by an external surgeon, Dr. F. Allen Rutledge, II, who assigned scores ranging from 1 (best) to 5 (worst) on each of the charts. Bear Valley considered a score of 3 or above to be a minor, moderate, or major deviation from the standard of care, requiring remedial action. Of the 12 reviewed charts, eight of them scored a "3" or above, including two charts with a score of "4" or higher. For each of the eight problematic charts, Dr. Rutledge provided his written opinions regarding deficiencies in medical care and/or practices, ranging from failing to obtain patients' informed consents to a preventable injury to a patient's organ.

In spring of 2012, the MEC recommended to the Board that Dr. Powell advance to active privileges based on having seen only two of his peer reviewed charts. When the Board was informed of the full results of *270Dr. Powell's peer review, it expressed concerns to the MEC. The MEC retracted its recommendation of active privileges so that it could review and discuss all of Dr. Powell's peer reviewed charts and he could complete a 90-day proctoring requirement.2

In summer of 2012, the MEC again recommended to the Board that Dr.

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231 Cal. Rptr. 3d 381, 22 Cal. App. 5th 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-bear-valley-cmty-hosp-calctapp5d-2018.