Sadeghi v. Sharp Memorial Med. Ctr.
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Opinion
Filed 10/23/13; pub. order 11/19/13 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
H. MEHRDAD SADEGHI, D060429
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00080039- CU-WM-SC) SHARP MEMORIAL MEDICAL CENTER CHULA VISTA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, William S.
Cannon, Judge. Affirmed.
H. Mehrdad Sadeghi, in pro. per.; Andrews & Hensleigh, Barbara Hensleigh and
Joseph Andrews, for Plaintiff and Appellant.
Procopio, Cory, Hargreaves & Savitch, Richard D. Barton and Jaime D. Quient,
for Defendant and Respondent.
Dr. H. Mehrdad Sadeghi's medical staff privileges were summarily suspended by
the Medical Staff of Sharp Chula Vista Medical Center (SCV). Dr. Sadeghi appeals from the superior court order denying his petition for writ of administrative mandate to compel
SCV to void its decision upholding the suspension. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
This matter arises from a failed surgical procedure by Dr. Sadeghi in 2007. After
the procedure, SCV launched an investigation that raised serious concerns about Dr.
Sadeghi's mental health and potential violations of the standard of care. As a result, Dr.
Sadeghi's medical privileges were suspended by the hospital's Medical Executive
Committee (MEC), the peer review body responsible for administering physician
privileges. Following this initial suspension, Dr. Sadeghi's privileges were reinstated, but
they were again revoked when he failed to comply with conditions imposed by the MEC.
Dr. Sadeghi invoked his right under the hospital's bylaws to a formal judicial review
hearing of the MEC's actions. More than one year into that proceeding, Dr. Sadeghi
suspended the hearing to pursue an informal resolution. When that attempt failed, the
hearing resumed and the review panel ultimately upheld the MEC's actions. Dr. Sadeghi
challenged the panel's determination in superior court and this appeal followed.
Dr. Sadeghi is board certified in internal medicine, cardiology and interventional
cardiology. In 2003, SCV granted Dr. Sadeghi privileges in internal medicine,
1 Dr. Sadeghi filed a motion to lodge or file the administrative record under seal, which was not opposed by SCV. Due to the patient and peer review information contained in the administrative record, this court treated the motion as one to lodge the appendix as confidential and granted the motion. We endeavor to discuss the relevant facts in general terms to maintain confidentiality. However, meaningful discussion of the issues raised by Dr. Sadeghi necessarily requires reference to information contained in the administrative record. 2 interventional cardiology, and peripheral interventional procedures. His practice focused
on interventional cardiology, a subspecialty of cardiology focused on diagnosis and
treatment of cardiovascular disease with catheter-based therapy. Dr. Sadeghi's practice
also included catheter-based therapy in the kidneys and legs, a field traditionally
occupied by interventional radiologists and that was not performed at SCV until Dr.
Sadeghi's arrival. In 2005 Dr. Sadeghi was appointed director of SCV's cardiac
catheterization laboratory, or "cath lab." The cath lab consists of two suites dedicated to
catheter-based interventional procedures staffed by nurses and technicians trained in
those therapies.
Around the time he was appointed as director of the cath lab, Dr. Sadeghi and his
partner, Dr. Mehran Moussavian, secured a contract that dramatically increased their
business. Shortly after, Dr. Moussavian suffered a personal loss, which further increased
Dr. Sadeghi's workload. In late 2006, members of the cath lab staff noticed changes in
Dr. Sadeghi's behavior and expressed concern about the length of time Dr. Sadeghi was
taking to perform procedures.
On February 22, 2007, Dr. Sadeghi began a procedure to attempt to save the leg of
an 81-year-old patient who had refused amputation and was in unremitting pain from
poor circulation. In addition to circulatory disease, the patient suffered from numerous
other life threatening illnesses. The patient and the patient's family were counseled by
Dr. Sadeghi and Dr. Moussavian, and internist Dr. Martha Lozano, about the poor
chances of the procedure's success, but the patient was steadfastly opposed to losing a leg
and becoming a burden to the family. Although initially scheduled to begin earlier, the
3 procedure did not begin until 8:30 p.m. because of an unrelated problem with Dr.
Sadeghi's medical record requirements. The procedure was extraordinarily long and
marked by numerous complications.
As the surgery progressed past midnight and into the following day, the cath lab
staff became increasingly concerned about Dr. Sadeghi's behavior, particularly his
unwillingness to end the procedure and the patient's evident discomfort. On the morning
of the second day of the procedure, the cath lab supervisor on duty contacted the lab
manager, who was on vacation at the time, and also contacted hospital administration,
including SCV's CEO Chris Boyd. Throughout the morning, Boyd and other members of
the administration came into the lab to address the situation. Dr. Moussavian was also
called to assist. The operation lasted 18 hours, not ending until the afternoon of the
second day. The patient passed away a few days later.2
As a result of the procedure, SCV's chief of staff, Dr. Seung-Yil T. Song, initiated
an investigation. Dr. Song requested a review of the case by the hospital's endovascular-
medicine chair, Dr. Walter Olsen, and interviews of the involved staff. Interviews of
three staff members were conducted on February 27, 2007 by the hospital's cardiology
director, Dr. Daniel Cepin, as well as a human resources representative and a member of
the hospital's quality council. The three interviewees painted a picture of erratic and
irrational behavior by Dr. Sadeghi. They described him criticizing other physicians and
2 After the patient's death, the family praised Dr. Sadeghi's efforts in following the patient's wishes and refused to participate in any proceeding against Dr. Sadeghi arising from the procedure. 4 members of the staff and expressing his belief that they were out to get him. A lab
technician described another patient, who had been scheduled for a procedure that day,
being brought to the cath lab at Dr. Sadeghi's request near midnight, and Dr. Sadeghi
asking the technician to film the patient talking about the long hours Dr. Sadeghi was
working.
On the evening of February 27, 2007, an informal meeting was arranged with Drs.
Sadeghi, Song, Cepin, Lozano, Moussavian and Dr. Errol Korn, the hospital's chair of
internal medicine, to discuss the procedure. The other doctors urged Dr. Sadeghi to take
time off to rest, but he responded that was not possible. Directly after the meeting with
Dr. Sadeghi, the MEC met to discuss the incident. After reports from Dr. Cepin on the
three staff interviews and Dr. Korn on the meeting with Dr. Sadeghi, the MEC voted to
summarily suspend Dr. Sadeghi's privileges.
Dr. Sadeghi was notified of the suspension the following day by a hand-delivered
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 10/23/13; pub. order 11/19/13 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
H. MEHRDAD SADEGHI, D060429
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00080039- CU-WM-SC) SHARP MEMORIAL MEDICAL CENTER CHULA VISTA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, William S.
Cannon, Judge. Affirmed.
H. Mehrdad Sadeghi, in pro. per.; Andrews & Hensleigh, Barbara Hensleigh and
Joseph Andrews, for Plaintiff and Appellant.
Procopio, Cory, Hargreaves & Savitch, Richard D. Barton and Jaime D. Quient,
for Defendant and Respondent.
Dr. H. Mehrdad Sadeghi's medical staff privileges were summarily suspended by
the Medical Staff of Sharp Chula Vista Medical Center (SCV). Dr. Sadeghi appeals from the superior court order denying his petition for writ of administrative mandate to compel
SCV to void its decision upholding the suspension. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
This matter arises from a failed surgical procedure by Dr. Sadeghi in 2007. After
the procedure, SCV launched an investigation that raised serious concerns about Dr.
Sadeghi's mental health and potential violations of the standard of care. As a result, Dr.
Sadeghi's medical privileges were suspended by the hospital's Medical Executive
Committee (MEC), the peer review body responsible for administering physician
privileges. Following this initial suspension, Dr. Sadeghi's privileges were reinstated, but
they were again revoked when he failed to comply with conditions imposed by the MEC.
Dr. Sadeghi invoked his right under the hospital's bylaws to a formal judicial review
hearing of the MEC's actions. More than one year into that proceeding, Dr. Sadeghi
suspended the hearing to pursue an informal resolution. When that attempt failed, the
hearing resumed and the review panel ultimately upheld the MEC's actions. Dr. Sadeghi
challenged the panel's determination in superior court and this appeal followed.
Dr. Sadeghi is board certified in internal medicine, cardiology and interventional
cardiology. In 2003, SCV granted Dr. Sadeghi privileges in internal medicine,
1 Dr. Sadeghi filed a motion to lodge or file the administrative record under seal, which was not opposed by SCV. Due to the patient and peer review information contained in the administrative record, this court treated the motion as one to lodge the appendix as confidential and granted the motion. We endeavor to discuss the relevant facts in general terms to maintain confidentiality. However, meaningful discussion of the issues raised by Dr. Sadeghi necessarily requires reference to information contained in the administrative record. 2 interventional cardiology, and peripheral interventional procedures. His practice focused
on interventional cardiology, a subspecialty of cardiology focused on diagnosis and
treatment of cardiovascular disease with catheter-based therapy. Dr. Sadeghi's practice
also included catheter-based therapy in the kidneys and legs, a field traditionally
occupied by interventional radiologists and that was not performed at SCV until Dr.
Sadeghi's arrival. In 2005 Dr. Sadeghi was appointed director of SCV's cardiac
catheterization laboratory, or "cath lab." The cath lab consists of two suites dedicated to
catheter-based interventional procedures staffed by nurses and technicians trained in
those therapies.
Around the time he was appointed as director of the cath lab, Dr. Sadeghi and his
partner, Dr. Mehran Moussavian, secured a contract that dramatically increased their
business. Shortly after, Dr. Moussavian suffered a personal loss, which further increased
Dr. Sadeghi's workload. In late 2006, members of the cath lab staff noticed changes in
Dr. Sadeghi's behavior and expressed concern about the length of time Dr. Sadeghi was
taking to perform procedures.
On February 22, 2007, Dr. Sadeghi began a procedure to attempt to save the leg of
an 81-year-old patient who had refused amputation and was in unremitting pain from
poor circulation. In addition to circulatory disease, the patient suffered from numerous
other life threatening illnesses. The patient and the patient's family were counseled by
Dr. Sadeghi and Dr. Moussavian, and internist Dr. Martha Lozano, about the poor
chances of the procedure's success, but the patient was steadfastly opposed to losing a leg
and becoming a burden to the family. Although initially scheduled to begin earlier, the
3 procedure did not begin until 8:30 p.m. because of an unrelated problem with Dr.
Sadeghi's medical record requirements. The procedure was extraordinarily long and
marked by numerous complications.
As the surgery progressed past midnight and into the following day, the cath lab
staff became increasingly concerned about Dr. Sadeghi's behavior, particularly his
unwillingness to end the procedure and the patient's evident discomfort. On the morning
of the second day of the procedure, the cath lab supervisor on duty contacted the lab
manager, who was on vacation at the time, and also contacted hospital administration,
including SCV's CEO Chris Boyd. Throughout the morning, Boyd and other members of
the administration came into the lab to address the situation. Dr. Moussavian was also
called to assist. The operation lasted 18 hours, not ending until the afternoon of the
second day. The patient passed away a few days later.2
As a result of the procedure, SCV's chief of staff, Dr. Seung-Yil T. Song, initiated
an investigation. Dr. Song requested a review of the case by the hospital's endovascular-
medicine chair, Dr. Walter Olsen, and interviews of the involved staff. Interviews of
three staff members were conducted on February 27, 2007 by the hospital's cardiology
director, Dr. Daniel Cepin, as well as a human resources representative and a member of
the hospital's quality council. The three interviewees painted a picture of erratic and
irrational behavior by Dr. Sadeghi. They described him criticizing other physicians and
2 After the patient's death, the family praised Dr. Sadeghi's efforts in following the patient's wishes and refused to participate in any proceeding against Dr. Sadeghi arising from the procedure. 4 members of the staff and expressing his belief that they were out to get him. A lab
technician described another patient, who had been scheduled for a procedure that day,
being brought to the cath lab at Dr. Sadeghi's request near midnight, and Dr. Sadeghi
asking the technician to film the patient talking about the long hours Dr. Sadeghi was
working.
On the evening of February 27, 2007, an informal meeting was arranged with Drs.
Sadeghi, Song, Cepin, Lozano, Moussavian and Dr. Errol Korn, the hospital's chair of
internal medicine, to discuss the procedure. The other doctors urged Dr. Sadeghi to take
time off to rest, but he responded that was not possible. Directly after the meeting with
Dr. Sadeghi, the MEC met to discuss the incident. After reports from Dr. Cepin on the
three staff interviews and Dr. Korn on the meeting with Dr. Sadeghi, the MEC voted to
summarily suspend Dr. Sadeghi's privileges.
Dr. Sadeghi was notified of the suspension the following day by a hand-delivered
letter. The letter stated the hospital's medical staff had begun an investigation as a result
of the February 22, 2007 procedure. The letter explained the MEC had significant
concerns as a result of the investigation and that the summary suspension was necessary
to protect the hospital's patients from what it viewed as imminent danger. The letter
instructed Dr. Sadeghi to contact the hospital's wellbeing committee immediately for
evaluation and notified him of his right under the hospital's bylaws to request an informal
hearing with the MEC within seven days.
Dr. Sadeghi invoked this right and appeared before the MEC at its March 6, 2007
meeting. At the meeting, Dr. Sadeghi apologized for his behavior during the February
5 22, 2007 procedure. He admitted he exercised less than optimal judgment with the staff
and took full responsibility for the patient's outcome. He also discussed the personal and
professional stressors in his life, including Dr. Moussavian's absence from their practice,
family pressure, and an unhealthy work environment, he believed were contributing
factors to the incident. Dr. Sadeghi also stated he would never again become too close to
a family in a way that clouded his medical judgment and said he would resign from the
practice of medicine if he were ever involved in a similar incident.
Dr. Sadeghi also reported he met with the wellbeing committee as directed and
had complied with that committee's request for a psychiatric evaluation. He stated the
psychiatrist told him there was no need for a follow-up appointment. A member of the
MEC reported that Dr. Sadeghi had been cleared by the wellbeing committee, but the
committee was not available to make a report that day. The MEC voted to terminate the
summary suspension. Some members expressed concern that the determination to lift the
suspension was premature, but the MEC rejected a motion to table the decision until
more information became available, including a report from the wellbeing committee.
On March 9, 2007, the MEC reconvened to follow up on the termination of Dr.
Sadeghi's suspension. After discussion, the MEC voted to validate its decision to
terminate the summary suspension, but added a condition that Dr. Sadeghi be required to
undergo a second evaluation by the psychiatrist with a written report submitted to the
wellbeing committee and the MEC. Counsel for SCV, Richard Barton, was present to
advise the MEC on Dr. Sadeghi's case. He informed the MEC that an outside review of
the February 22, 2007 incident was also being undertaken and experts were being
6 contacted to evaluate the matter.3 Dr. Sadeghi was advised of the new condition to the
termination of his suspension by hand-delivered letter from Dr. Song that day. On April
2, 2007, Dr. Song delivered a second letter reminding Dr. Sadeghi of the requirement he
undergo another psychiatric evaluation.
On April 30, 2007, Dr. Sadeghi wrote to Dr. Korn concerning the second
psychiatric evaluation. Dr. Sadeghi explained he had seen the psychiatrist a second time
before the MEC's March 9, 2007 meeting and, based on his conversations with the
members of the wellbeing committee, believed this second visit satisfied the condition on
the termination of his suspension. Dr. Sadeghi stated that after he received Dr. Song's
April 2, 2007 letter, he spoke with the wellbeing committee which confirmed no further
action on his part was necessary. Dr. Sadeghi also outlined a number of concerns he had
about the manner in which the investigation was being conducted, including that key
witnesses involved in the February 22, 2007 procedure were not interviewed, the failure
of a member of the MEC involved in a business dispute with Dr. Sadeghi to recuse
himself from the suspension vote, and the qualifications and methodology of the outside
reviewers.
Dr. Song and Dr. Korn responded to Dr. Sadeghi by letter dated May 10, 2007,
reassuring Dr. Sadeghi the information contained in his letter would be taken into
consideration by the MEC. The letter also advised Dr. Sadeghi that despite his statement
3 Dr. Olsen provided a written report of his review to Dr. Song on May 16, 2007, stating that on February 26, 2007, he informed the MEC an independent outside review was warranted. 7 that he had visited the psychiatrist two times, he was not in compliance with the condition
set by the MEC because he had failed to advise the MEC of the specific date on which
the visit occurred or provide verifying documentation. The letter explicitly stated that the
failure to provide this information would be "considered a violation of [Dr. Sadeghi's]
responsibilities under the bylaws" of the hospital. The letter also notified Dr. Sadeghi
that hospital employees had complained of harassment by him resulting from his
inquiries concerning the hospital's investigation and directed Dr. Sadeghi to cease and
desist all contact with hospital employees related to the investigation.
The reports of three outside physicians engaged by the MEC to review the
February 22, 2007 procedure were issued on April 23, April 30 and May 11, 2007. All
three reports were highly critical of Dr. Sadeghi's conduct. One stated "[t]his was a
monumental failure of judgement and procedural conduct" and the "case demonstrates
one of the worst violations of patient safety standards I have ever seen in my professional
life." The two other reports were equally scathing.
After receipt of the outside reviewers' reports, the MEC scheduled a special
meeting for May 17, 2007. Dr. Sadeghi was informed of the meeting and invited to
submit additional information in writing to the MEC. He submitted a detailed letter the
day of the meeting. In it, Dr. Sadeghi indicated he had an upcoming appointment for a
third visit with the psychiatrist to comply with the MEC's directive in the May 10, 2007
letter from Dr. Song and Dr. Korn. He also detailed his performance in the cath lab since
the termination of his suspension, including the length of procedures. Dr. Sadeghi
explained, with backup documentation, the procedures he had conducted with above
8 average completion times, including one on May 15, 2007, that lasted over seven hours.
The MEC was separately informed of the May 15, 2007 case, and as a result Dr. Song
asked Dr. Cepin to review the case and provide a report to the MEC.
At the May 17 meeting, the committee members were provided with the reports of
the outside reviewers. Dr. Cepin reported on both the May 15 case and additional
interviews that had been conducted with members of the cath lab staff involved in the
February case. The MEC meeting minutes indicate grave concern over both the findings
in the various reports and Dr. Sadeghi's psychological wellbeing, specifically his
interaction with employees and his failure to comply with the MEC's directive to follow
up with another psychiatric visit. The committee voted, with the member Dr. Sadeghi
identified as being in a business dispute with him abstaining, to immediately impose a
summary suspension of all of Dr. Sadeghi's privileges. The committee also voted to (1)
direct Dr. Sadeghi to attend the Physician Assessment and Clinical Education (PACE)
Program at the University of California, San Diego4 for assessment of his clinical
knowledge and judgment, (2) direct him to refrain from any conduct with staff that might
be considered threatening, harassing or disruptive, and (3) use the outside reviewers to
conduct a second, broader review of Dr. Sadeghi's cases.
Dr. Sadeghi exercised this right and another informal hearing was held on May 29,
2007. By this time, Dr. Sadeghi had retained counsel, David Rosenberg, and Rosenberg
4 The PACE Program evaluates physicians referred by hospitals or the California Medical Board. The Program includes evaluation of physician's clinical skills and knowledge, and also offers additional, more specific courses such as record keeping, ethics, prescription dispensing and anger management. 9 was permitted to attend the hearing as an observer. Dr. Sadeghi and Rosenberg were
provided with the reports of the three outside reviewers in advance. At the hearing, Dr.
Sadeghi submitted a report from another psychiatrist, Dr. Mark Kalish, who evaluated Dr.
Sadeghi at Rosenberg's suggestion. Dr. Kalish's report indicated he found no evidence
that Dr. Sadeghi suffered from a diagnosable psychiatric illness. He recommended,
however, that Dr. Sadeghi enroll in the PACE Program and participate in three to six
months of psychotherapy to assist him in dealing with interpersonal issues and anger
management.
With respect to his failure to comply with the MEC's requirement he be seen again
by the first psychiatrist, Dr. Sadeghi again explained he met with the psychiatrist twice
and had been told by the wellbeing committee that no further evaluation was necessary.
Dr. Sadeghi also expressed disagreement with the outside reviewers and asked for the
opportunity to provide the MEC with literature supporting his medical conduct during the
February 22, 2007 procedure and to address factual errors he perceived in the reports.
Finally, Dr. Sadeghi stated he did not pose any risk of imminent harm to patients and
indicated his willingness to agree to psychotherapy and to attend the PACE Program.
After Dr. Sadeghi and his counsel were excused from the hearing, the MEC voted
to continue its summary suspension of Dr. Sadeghi's interventional cardiology and
peripheral interventional privileges. It voted to terminate the suspension of Dr. Sadeghi's
general medicine privileges if he satisfied four conditions: (1) submit to a proctoring
program, (2) attend the PACE Program, (3) undergo psychotherapy for three to six
months, and (4) abstain from conduct that might be considered harassment of the hospital
10 staff. The MEC also agreed to use two of the outside reviewers to conduct a broader
review of Dr. Sadeghi's practice. Dr. Sadeghi was informed of the MEC's decision by
letter dated May 31, 2007, which also advised Dr. Sadeghi of his right to demand a
formal judicial review hearing under the hospital's bylaws. Dr. Sadeghi invoked that
right the same day.
Shortly thereafter, Dr. Sadeghi also sought an injunction from the superior court
requiring the hospital to reinstate his interventional cardiology privileges. In addition to
seeking an injunction, Dr. Sadeghi's complaint included claims for intentional
interference with contractual relations and prospective economic advantage, and a claim
for "retaliation for reporting illegal conduct" alleging the suspension of his privileges was
reprisal for his reporting of medical billing fraud. (Capitalization omitted.) Dr. Sadeghi's
request for injunctive relief was denied for failure to exhaust administrative remedies on
July 8, 2007.5
On June 29, 2007 Dr. Sadeghi was advised by letter that the judicial review
hearing would commence on July 9, 2007. The letter set forth the hospital's notice of
5 Dr. Sadeghi moves to augment the appellate record to include: (1) an April 2, 2008 letter from the hearing officer for the judicial review hearing to Barton and Dr. Sadeghi addressing briefing filed by Dr. Sadeghi; (2) an April 18, 2008 letter brief from Barton to the hearing officer responding to the same briefing by Dr. Sadeghi; (3) the transcript from the January 25, 2010 judicial review hearing session; (4) pleadings related to Dr. Sadeghi's attempt to obtain an injunction; and (5) a series of documents concerning a second proceeding related to the MEC's later denial of reinstatement of Dr. Sadeghi's privileges that occurred after the proceeding at issue here was concluded. SCV does not oppose the motion as to (1)-(4) and we grant the motion as to those documents. As to the documents related to the later proceeding, the motion is denied. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [appellate court cannot augment record with information concerning matters not before the superior court].) 11 charges detailing the reasons for the MEC's actions on May 17 and May 29, 2007. It also
identified five proposed members of the Judicial Review Committee (JRC): Dr. David
Ostrander, an interventional cardiologist like Dr. Sadeghi; Dr. Michael Plopper, a
psychiatrist; Dr. David Hansen, an internist on the hospital's staff; Dr. Mark Huang, a
cardiothoracic surgeon also on the hospital's staff; and Dr. Mohsin Saeed, an
interventional radiologist. A hearing officer for the proceeding, Carlo Coppo, was
chosen jointly by Rosenberg and Barton.
The hearing was convened on July 9, 2007, and counsel conducted voir dire of the
JRC members. Prior to the start, Dr. Hansen was replaced by Dr. Marilyn Norton, an
oncologist on the hospital's staff. At the conclusion of the voir dire, Dr. Sadeghi objected
to Dr. Ostrander based on his prior relationship with Barton. Dr. Ostrander had served as
an expert consultant for Barton six years earlier and worked with Barton when Dr.
Ostrander served as the hospital's chief of staff. Coppo overruled the objection.
As the judicial review hearing proceeded, the MEC received the reports of the two
outside reviewers asked to perform broader, retrospective reviews of Dr. Sadeghi's work.
Both reviewers were again highly critical of Dr. Sadeghi's work and raised questions
about his competence. After receiving these reports, the MEC amended its notice of
charges. Dr. Song notified Dr. Sadeghi of the amendment by letter dated August 24,
2007, which added detailed charges based on the problems identified in the expanded
reviews.
The letter also added Dr. Sadeghi's failure to comply with the conditions imposed
by the MEC in May, despite repeated assurances from Rosenberg of Dr. Sadeghi's
12 compliance, as an additional basis for the suspension. On September 4, 2007, the MEC
reinstated the summary suspension of Dr. Sadeghi's general medicine privileges as a
result of his failure to show compliance with the conditions set by the MEC on May 29,
2007. Dr. Sadeghi was notified by a letter the following day, and again advised of his
right to an informal hearing.
Dr. Sadeghi requested the informal hearing and appeared with Rosenberg before
the MEC on September 20, 2007. Rosenberg explicitly agreed to provide the MEC with
confirmation of Dr. Sadeghi's enrollment in the PACE Program and expected completion
date, as well as a report from Dr. Sadeghi's private therapist. An undated letter from Dr.
Song to Dr. Sadeghi, but purportedly sent after the hearing, again amended the notice of
charges. The letter states the information promised by Rosenberg concerning Dr.
Sadeghi's compliance with the MEC's conditions was not received. It also added a new
charge of failure to comply with the MEC's directive to refrain from harassing behavior
based on allegations of Dr. Sadeghi going into the cath lab to obtain information
concerning the JRC hearing.
At the start of the next judicial review hearing session on September 25, 2007,
Rosenberg challenged the makeup of the JRC, arguing the bylaws required at least three
hospital staff members. Rosenberg also objected to the lack of an interventional
cardiologist with experience in peripheral procedures on the panel. In response, Barton
argued there were only two members of the hospital's staff because of the difficulty in
finding doctors without a competing financial interest who also had experience in Dr.
Sadeghi's medical specialty, as well as the medical staff's desire to have a panel member
13 with psychiatric expertise who was not previously involved in the matter. With respect to
the need for an interventional cardiologist with specific experience in peripheral
procedures, Barton responded that it is a rare and emerging subspecialty and the two
subspecialties with crossover into the types of procedures conducted by Dr. Sadeghi,
interventional cardiologists and interventional radiologists, were represented by Drs.
Ostrander and Saeed.
The hearing officer overruled both objections and after opening statements, the
evidentiary portion of the hearing commenced. Six additional evidentiary sessions took
place over the next several months. On February 28, 2008, Dr. Sadeghi wrote to Coppo
indicating he would no longer be represented by Rosenberg and, citing Article VIII,
Section 4.B of the hospital's bylaws, requesting the MEC discontinue its own
representation.
Coppo convened a conference call the following day with Dr. Sadeghi and Barton
to discuss Dr. Sadeghi's request. During the call, Dr. Sadeghi stipulated to Barton's
continued representation despite the fact that he would be representing himself, at least
for the present. A letter from Coppo memorializing the call included a ruling the hearing
would continue as scheduled and Barton was permitted to continue his representation of
the MEC. Dr. Sadeghi represented himself at the next hearing session, but Rosenberg
resumed his representation thereafter. Five additional hearing sessions occurred in April,
May and June, 2008.
Then, on August 4, 2008, while the hearing was still ongoing, Dr. Sadeghi wrote
to the hospital's new chief of staff, Dr. Jose A. Lira, and the members of the MEC
14 requesting reinstatement of his privileges. Dr. Sadeghi stated he had been informed by
the Medical Board of California (Medical Board) that its investigation was over. Dr.
Sadeghi also stated that although he had been informed by MEC members and Barton
"that there were no issues with [his] competency and clinical expertise," he enrolled in
the PACE Program and anticipated completion in four to six weeks. On August 11,
2008, Dr. Lira responded by letter that the MEC voted to take his request into
consideration upon proof of his compliance with its earlier conditions, but that the
judicial review hearing should continue as scheduled.
On August 8, 2008, Dr. Sadeghi sent an e-mail to Coppo advising he had retained
additional counsel, Erin Muellenberg, and had asked Rosenberg not to work on the case
pending the outcome of settlement negotiations with the MEC. The next month, the
parties agreed to notify the JRC members they were working " 'on issues relevant to th[e]
proceeding' " and further hearing dates were not expected until late October. Settlement
negotiations proved unsuccessful and by March 2009, the MEC had voted not to reinstate
Dr. Sadeghi's privileges and to resume the judicial review hearing.
After some back and forth between the parties, in August 2009 they agreed to
continue the judicial review hearing and Coppo began efforts to reconvene the JRC by
contacting the panel members for their availability. In his communications with the panel
members, Coppo stated that the JRC was "in a state of adjournment since [its] last session
on June 4, 2008 [and] that the best efforts of the parties had not resulted in a resolution of
the matter. . . ." In response to Coppo's communication, Dr. Ostrander indicated he
would not be available until the end of October 2009 and Dr. Norton was unwilling to
15 commit to continued involvement. Coppo suggested proceeding with a reduced panel of
three. By September 2009, Dr. Sadeghi and the MEC agreed to this proposal and a
hearing session was set for that month.
Before hearings resumed, Muellenberg, who had taken over representing Dr.
Sadeghi in the matter, raised the issue whether the MEC's March 2009 denial of Dr.
Sadeghi's request to be reinstated should be considered by the JRC. On July 21, 2009,
Muellenberg wrote to Barton requesting that, in addition to the determination of whether
the 2007 suspension of Dr. Sadeghi's privileges was warranted and reasonable, the JRC
also decide "Dr. Sadeghi's continued medical staff membership at Sharp." The MEC
opposed this approach and sought to limit the JRC to its initial charge of adjudicating
whether the MEC's actions in 2007 were appropriate.
The JRC reconvened on September 23, 2009, with a second round of voir dire of
the three remaining panel members. Evidentiary hearing sessions resumed in November
without a final resolution of the scope of what the JRC would determine. On November
20, 2009, Muellenberg submitted a formal motion to Coppo requesting the JRC's
determination of whether the summary suspension imposed by the MEC was reasonable
and warranted also include the MEC's March 2009 denial of Dr. Sadeghi's request for
reinstatement. Coppo concluded the denial of reinstatement was "not relevant and,
therefore, not admissible as evidence of whether or not the corrective actions taken
against Dr. Sadeghi on February 26, May 17 and September [4], 2007 were reasonable
and warranted." Coppo's letter ruling outlined his concern that "to include the denial of
reappointment in the current proceedings would involve the addition of an unknown
16 number of additional exhibits and the testimony of an unknown number of additional
witnesses relating to" events that occurred subsequent to the MEC's actions in 2007.
Additional evidentiary hearing sessions continued throughout April with closing
arguments on April 21, 2010. On May 26, 2010, the JRC issued its final decision. It
concluded the MEC established by a preponderance of evidence that its summary
suspension of Dr. Sadeghi's privileges on May 17, 2007, and the modification of that
action on May 29, 2007, were reasonable and warranted. The JRC's statement of
decision outlines the facts upon which its decision was based with specific detail about
Dr. Sadeghi's violation of the standard of care during the February 2007 event and Dr.
Sadeghi's failure to rebut that evidence. The JRC also concluded the September 4, 2007
reinstatement of the summary suspension of Dr. Sadeghi's general medicine privileges
was reasonable and warranted in light of Dr. Sadeghi's failure to comply with the
conditions imposed by the MEC for termination of the suspension.6
Pursuant to the hospital's bylaws, Dr. Sadeghi appealed the findings of the JRC to
the hospital's board of directors, which appointed an appeal board to hear the matter. The
appeal board received briefing from both parties and heard oral argument. It issued a
written decision on July 22, 2010, affirming the JRC. Dr. Sadeghi filed a petition for writ
6 The JRC did, however, note its concern regarding the tone of interactions between the MEC and Dr. Sadeghi. The decision specifically pointed to the lack of communication among the members of the MEC and wellbeing committee to confirm Dr. Sadeghi's compliance with its directive that Dr. Sadeghi see its psychiatrist twice, which it believed should have been a relatively easy matter to confirm without Dr. Sadeghi's involvement. The JRC noted this failure in communication potentially led Dr. Sadeghi to take a legal adversarial approach to the proceedings that he otherwise might not have taken. 17 of mandate under Code of Civil Procedure section 1094.5 seeking to void the JRC's
decision. The trial court denied the petition and this appeal followed.
DISCUSSION
Our review of JRC's decision, like that of the superior court, is governed by Code
of Civil Procedure section 1094.5. Under subdivision (b) of this provision, we determine
"whether there was a fair trial," and "whether there was any prejudicial abuse of
discretion." (Code Civ. Proc., §1094.5, subd. (b).) "Abuse of discretion is established if
the respondent has not proceeded in the manner required by law, the order or decision is
not supported by the findings, or the findings are not supported by the evidence." (Ibid.)
Abuse of discretion established by the respondent's failure to proceed in the manner
required by law is prejudicial and warrants relief only where "the deviation is material."
(El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 991.)
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. [Citations.] 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.' [Citations.] The medical staff acts chiefly through peer review
committees, which, among other things, investigate complaints about physicians and
18 recommend whether staff privileges should be granted or renewed." (Mileikowsky v.
West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1267 (Mileikowsky).) The
peer review process is codified at Business and Professions Code section 809 et seq.7 and
is a part of the "comprehensive statutory scheme for the licensure of California
physicians" required to be included in the medical staff bylaws of acute care facilities.
(Mileikowsky, supra, 45 Cal.4th at p. 1267.)
"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.' [Citation.]" (Mileikowsky, supra, 45 Cal.4th at p. 1267.)
"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' ([§ 809], 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' ([§ 809], 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. [Citation.]" (Ibid.) However, "[n]ot every violation of a
7 All further statutory references are to the Business and Professions Code unless otherwise noted. 19 hospital's internal procedures provides grounds for judicial intervention." (El-Attar v.
Hollywood Presbyterian Medical Center, supra, 56 Cal.4th at p. 990.)
Because hospitals are under stringent reporting requirements, the denial of staff
privileges can be severely detrimental to a physician's career. Section 805 requires
hospitals to report the denial or revocation of privileges to the Medical Board, which
maintains a historical record that includes this information. Further, hospitals are
"usually required to report disciplinary actions to the National Practitioner Data Bank,
established for the purpose of tracking the activities of incompetent physicians."
(Mileikowsky, supra, 45 Cal.4th at p. 1268.) Denial or revocation of "privileges therefore
may have the effect of ending the physician's career." (Ibid.)
With respect to private hospitals, like Sharp Chula Vista Medical Center, the
physician's fair procedure rights "arise from section 809 et seq. and not from the due
process clauses of the state and federal Constitutions." (Kaiser Foundation Hospitals v.
Superior Court (2005) 128 Cal.App.4th 85, 102.) These statutes "establish[] minimum
protections for physicians subject to adverse action in the peer review system."
(Mileikowsky, supra, 45 Cal.4th at p. 1268.) The statutory scheme requires hospitals to
provide an affected physician both notice and the opportunity for a hearing when a peer
review committee has recommended a "final proposed action" that must be reported to
the Medical Board. (§§ 809.1, subds. (a), (b), 809.3, subd. (b)(1), (2) & (3).)
The hearing must be held "before a trier of fact" that, as determined by the peer
review body, is either "an arbitrator or arbitrators selected by a process mutually
acceptable to the licentiate and the peer review body" or "a panel of unbiased individuals
20 . . . which shall include, where feasible, an individual practicing the same specialty as the
licentiate." (§ 809.2, subd. (a).) During the hearing, both parties have the right "[t]o call,
examine, and cross-examine witnesses" and "[t]o present and rebut evidence determined
by the arbitrator or presiding officer to be relevant." (§ 809.3, subd. (a)(3), (4).) "Upon
the completion of a hearing . . . the licentiate and the peer review body involved have the
right to . . . [a] 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).)
II.
As he did in the trial court, Dr. Sadeghi argues he was denied fair procedure by the
MEC, SCV's peer review body, in a number of ways. He contends (1) the JRC applied
an improper standard by not addressing the actions of the MEC that occurred after 2007;
(2) the JRC was improperly constituted; (3) Dr. Sadeghi was improperly precluded from
communicating with potential witnesses; (4) his lack of representation for one of the
hearing sessions was a violation of his rights; and (5) the length of time it took to reach a
hearing and the extended length of the hearing constituted a denial of due process. We
21 reject these contentions.8
A.
Dr. Sadeghi argues the peer review statutes, specifically section 809.3, subdivision
(b)(3), required the JRC to determine whether the MEC's actions in 2007 continued to be
reasonable and warranted at the time of its decision in May 2010. Section 809.3 sets
forth rights of the parties during a physician-requested hearing after a final decision by
the hospital's peer review body. Subdivision (b)(3) states: "the peer review body shall
bear the burden of persuading the trier of fact by a preponderance of the evidence that the
action or recommendation is reasonable and warranted." (§ 809.3, subd. (b)(3).)
Consistent with this provision, SCV's bylaws provide "the Medical Executive Committee
shall bear the burden of persuading the Judicial Review Committee, by a preponderance
of the evidence, that its action or recommendation was reasonable and warranted."
As Dr. Sadeghi points out, the bylaws use the phrase "was reasonable and
warranted," while the statute uses the phrase "is reasonable and warranted." (Second
italics added.) Dr. Sadeghi contends the Legislature's use of the word "is" evidenced its
intent "that the peer review body bears the burden of establishing that the action or
8 We also reject Dr. Sadeghi's comparison of this case to Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434. None of the procedural problems at issue in Rosenblit that resulted in the court finding denial of fair process—lack of adequate notice of the charges against the physician, failure to provide the physician with documentation concerning his alleged malfeasance, a conclusory verdict and voir dire of hearing panel members by only the hearing officer outside the presence of the physician—were present here. To the contrary, as discussed herein, Dr. Sadeghi was afforded fair process before and during the hearing as required by the hospital's bylaws and section 809 et seq. 22 recommendation 'is reasonable and warranted' at the time of the hearing (i.e., the present)
and not at the time the decision of the peer review body [was made] (i.e., the past)." We
disagree.
The statutory scheme provides a mechanism for the licentiate to challenge a
particular action of the peer review body. Section 809.1, subdivision (a) provides a
physician with the right to written notice that includes "the right to request a hearing on
the final proposed action." That provision defines "final proposed action" as "the final
decision or recommendation of the peer review body after informal investigatory activity
or prehearing meetings, if any." (§ 809.1, subd. (a).) The hearing required by section
809 et seq. is a safeguard to ensure the prior actions of a peer review body are justified.
(See Mileikowsky, supra, 45 Cal.4th at pp. 1268-1269 ["A physician . . . has the right to
have a second body of peers independently determine whether a peer review committee's
recommendation . . . [was] reasonable and warranted . . . ."].) Nothing in these
provisions contemplates an open-ended proceeding where the JRC subsumes the role of
the MEC to determine, in the first instance, whether a physician who has been previously
sanctioned is later fit for reinstatement.
In this case, Dr. Sadeghi was provided with notice of the final proposed action of
the MEC (reinstatement of the summary suspension of Dr. Sadeghi's cardiology and
interventional privileges) on May 31, 2007. He exercised his right to request a hearing
that day. Based on the subsequent actions of Dr. Sadeghi with respect to the conditions
imposed by the MEC for termination of that suspension and additional information
provided to the MEC by the outside reviewers, the MEC issued subsequent notices
23 amending the initial charges on August 24, 2007 and September 5, 2007. At the time of
the amendments, the JRC was at its initial stages. Coppo allowed the inclusion of these
new final proposed actions, including suspension of all of Dr. Sadeghi's privileges.9
Under the bylaws and the peer review statutes, the JRC's role was to determine if the
MEC's actions outlined in these notices was reasonable and warranted, not anything
further. There was no mandate for the JRC to combine any later actions by the MEC into
the ongoing proceeding. Any such action could be challenged in the same manner as the
MEC's 2007 actions.10
Dr. Sadeghi also contends Coppo improperly precluded evidence about his
conduct after September 2007. We disagree. Under both the relevant statutes and the
hospital's bylaws, the hearing officer had authority to make rulings concerning the
relevance of the evidence. Section 809.3, subdivision (a)(4) provides that during the
hearing both parties have the right to "present and rebut evidence determined by the . . .
presiding officer to be relevant." Likewise, the bylaws provide: "The hearing officer
9 At the time the charges were amended, Dr. Sadeghi took the opposite position of that advanced here, arguing the hearing should proceed only with respect to the initial notice of charges. Coppo allowed the amended charges to be included in the proceeding conditioned on the first evidentiary hearing being postponed no more than 30 days.
10 In fact, Dr. Sadeghi's motion to take additional evidence in this court, which we deny, and his motion to augment indicate he has challenged the MEC's subsequent denial of reinstatement of his privileges and a second judicial review hearing is underway. We note Dr. Sadeghi's allegation in his motion to take additional evidence that the MEC continued his privileges for six months at a time while the suspension was in place and the JRC proceeded. The SCV's bylaws, however, state clearly that "the terms of the summary suspension as sustained or as modified by the [MEC] shall remain in effect pending a final decision thereon by the Governing Body[, either the JRC or SVC's appeal board]." 24 shall be entitled to determine the order of or procedure for presenting evidence and
argument during the hearing and shall have the authority and discretion to make all
rulings on questions, which pertain to matters of law, procedure or the admissibility of
evidence." Since the JRC's charge was whether the MEC's actions in 2007 were
reasonable and warranted, mitigating conduct by Dr. Sadeghi thereafter was irrelevant
and could be appropriately excluded by Coppo.
Additionally, much of the evidence Dr. Sadeghi complains was improperly
excluded was actually admitted. For instance, Coppo explicitly permitted Dr. Sadeghi to
introduce evidence of his "participation in the UCSD PACE Program . . . ." The
administrative record includes both the certificate of completion and assessment of Dr.
Sadeghi's performance in the program, and Dr. Sadeghi's and his wife's testimony about
his participation in the program in 2008. Dr. Sadeghi and his wife also testified about the
psychiatric treatment he received after 2007, as well as the 2008 resolution of the
accusation filed with the Medical Board.
In sum, we find no denial of fair procedure as a result of the JRC proceeding being
confined to the MEC's 2007 actions or the exclusion of any evidence of mitigating
conduct by Dr. Sadeghi after 2007.
B.
Dr. Sadeghi argues the makeup of the JRC was defective in three respects: (1) the
committee members were biased against him; (2) no member practiced in his specialty;
and (3) the panel had less than the requisite three hospital staff members.
25 Dr. Sadeghi asserts bias based on the fact that Barton, Boyd and Dr. Song made
the initial contact with each member of the JRC and Barton "outlin[ed] the case" to Dr.
Ostrander. Under the hospital's bylaws, the MEC recommends a "Judicial Review
Committee to the Board of Directors for appointment." The board then has the
opportunity to object to the selection of members or they are deemed approved. While
the record does not address how the initial members were selected, the MEC was entitled
to "the unilateral selection of [the] panel members and a hearing officer" subject to Dr.
Sadeghi's right to voir dire. (Kaiser Foundation Hospitals v. Superior Court, supra, 128
Cal.App.4th at p. 109; see also El-Attar v. Hollywood Presbyterian Medical Center,
supra, 56 Cal.4th at p. 996 ["In the administrative law context, an adjudicator's
impartiality in reviewing the propriety of an adverse action taken by an agency may be
presumed even if the adjudicator is chosen by, and is a member of, the agency
prosecuting the matter."].)
Further, the questioning during voir dire revealed nothing improper about the
initial communications with the panel members, which were necessary to assemble the
JRC. For instance, when asked "how did you first hear about this case," Dr. Ostrander
responded the "[f]irst time I heard there was a JRC was from Mr. Barton. He called and
asked if I would participate as a member. [¶] . . . [¶] He asked if I would be willing to sit
on a panel and gave a very brief thumbnail sketch of the elements of the case." We do
not find anything improper in the MEC's selection of the JRC members or its initial
contacts with them.
26 Dr. Sadeghi next argues the panel was defective because it did not include "an
interventional cardiologist with experience in lower extremity intervention." Section
809.2, subdivision (a) states "[t]he hearing shall be held, as determined by the peer
review body, before a trier of fact, which shall be . . . before a panel of unbiased
individuals who shall gain no direct financial benefit from the outcome, who have not
acted as an accuser, investigator, factfinder, or initial decisionmaker in the same matter,
and which shall include, where feasible, an individual practicing the same specialty as the
licentiate." (Italics added.) The hospital's bylaws model this statute, providing that
"[m]embership on a Judicial Review Committee shall, where feasible, include an
individual practicing the same specialty as the member." (Italics added.)
When the JRC was initially empanelled, it included an interventional cardiologist,
Dr. Ostrander, who Dr. Sadeghi describes as similar to himself, and an interventional
radiologist, Dr. Saeed. When the JRC reconvened in September 2009, Dr. Sadeghi
stipulated to the reduced panel without Dr. Ostrander and did not request he be replaced
with another interventional cardiologist. Further, Dr. Sadeghi explained during the
hearing that his practice involved a crossover of these two specialties. In fact, Dr.
Sadeghi testified his own practice had an agreement with the hospital's radiology group
that if there were complications with procedures involving the lower extremities, an
interventional radiologist would be called to assist. In light of Dr. Sadeghi's testimony
concerning the involvement of both specialties in lower extremity procedures, we reject
his contention that the panel did not include a specialist in his practice area.
27 We also reject Dr. Sadeghi's argument that the panel was improperly constituted
because it contained only two members of the hospital's medical staff. The hospital's
bylaws state the JRC "shall be composed of not less than three members of the Medical
Staff who are not in direct economic competition with the member[] who requested the
hearing, who shall gain no direct financial benefit from the outcome, who have not acted
as accuser, investigator, fact finder, initial decision maker or otherwise have
not . . . actively participated in the consideration of the matter leading up to the
recommendation or action." As with the physician's specialty, if "it is not feasible to
appoint[] a [JRC] from the active Medical Staff, the Medical Executive Committee may
appoint members from other staff categories or practitioners who are not members of the
Medical Staff."
When Dr. Sadeghi challenged the makeup of the panel at the hearing, Barton
argued it was not feasible for the panel to include three members of the hospital's medical
staff because of the need to include an invasive cardiologist who was not in economic
competition with Dr. Sadeghi. Barton stated the "medical staff does not encompass
enough people where the claim couldn't be made that somebody from invasive cardiology
here wouldn't be in direct competition with Dr. Sadeghi . . . ." Barton further argued the
MEC wanted the JRC to also include an interventional radiologist and a psychiatrist, both
of which also needed to come from outside the hospital. As with the invasive
cardiologist, an outside interventional radiologist was necessary because of economic
competition with Dr. Sadeghi. An outside psychiatrist was needed because those on the
medical staff were involved in Dr. Sadeghi's case in some way. Dr. Sadeghi did not
28 dispute these assertions. In light of these facts, we conclude the hearing officer's decision
to deny Dr. Sadeghi's request to include another member of the hospital staff was within
the limitations imposed by section 809.2, subdivision (a) and the hospital's bylaws.
C.
On September 21, 2007, Coppo issued an order precluding Dr. Sadeghi from any
"further ex parte communications, either orally, by e-mail, by fax, or by ordinary mail,
with the Hearing Officer, Mr. Barton, Sharp Chula Vista Medical Staff, the Sharp Chula
Vista Medical Executive Committee, employees, agents and ancillary personnel of Sharp
Chula Vista Hospital, on any matter relating to the Notice of Charges which frames the
issues to be tried in this Judicial Review proceeding." Dr. Sadeghi contends there was no
basis for Coppo to issue this order and that it prevented him from preparing an adequate
defense in violation of his right to fair process. We disagree.
Dr. Sadeghi correctly asserts a fair hearing "requires that the doctor be given a full
and fair opportunity to examine and collect evidence and prepare his case for the
hearing." (See Rosenblit v. Superior Court, supra, 231 Cal.App.3d at p. 1445 [in drafting
its peer review procedure, the organization should "insure a fair opportunity for an
applicant to present his position"], italics omitted.) As discussed, the physician's right to
fair procedure arises from the statutory peer review scheme. (Kaiser Foundation
Hospitals v. Superior Court, supra, 128 Cal.App.4th at p. 102.) While no particular
statutory provision addresses the physician's right to communicate directly with potential
witnesses, two provisions address the ability to present a defense. Section 809.2,
subdivision (d) provides the licentiate "the right to inspect and copy . . . any documentary
29 information relevant to the charges which the peer review body has in its possession or
under its control. . . ." This right, however, is limited. "The . . . 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).) Section 809.3, subdivision (a)(3) gives the parties the right to "call, examine, and
cross examine witnesses." The discovery rights afforded by these statutes are "not as
broad as a civil discovery standard." (Unnamed Physician v. Board of Trustees (2001) 93
Cal.App.4th 607, 627.)
The September 21, 2007 order was precipitated by complaints from hospital staff
about communications by Dr. Sadeghi that were perceived as harassing, Dr. Sadeghi's
intrusions into the hospital's medical records department, and Dr. Sadeghi's direct written
communication with Coppo. In light of these events, we find Coppo's order appropriate
and within his right to "impose any safeguards" to protect the peer review process. (§
809.2, subd. (d).) The order applied to Dr. Sadeghi individually, not his counsel, and was
not an obstacle to Rosenberg's or Muellenberg's ability to obtain evidence or call
witnesses.11 It did not, therefore, violate any procedural right created by the statutory
peer review system or prejudice Dr. Sadeghi's ability to present his defense.
D.
As discussed, on February 28, 2008, Dr. Sadeghi wrote to Coppo to state he would
no longer be represented by Rosenberg and to request the MEC likewise proceed without
11 The record also shows that at the point Dr. Sadeghi decided to represent himself, Coppo reconsidered the contact limiting order. 30 representation. The following day, Coppo convened a conference call with Dr. Sadeghi
and Barton to discuss this request. During the call, Dr. Sadeghi stipulated to Barton's
continued representation of the MEC. Dr. Sadeghi represented himself at one session.
Thereafter Rosenberg resumed his representation of Dr. Sadeghi.
Despite these facts, Dr. Sadeghi now contends the one hearing session (out of
more than 35) in which he was not represented violated a fair process right created by
section 809.3, subdivision (c) and the hospital's bylaws.12 We do not agree. The record
is clear Dr. Sadeghi agreed to the MEC proceeding with representation and this alone
obviates his complaint. (See Anton v. San Antonio Community Hospital (1977) 19 Cal.3d
802, 826 [failure of physician to raise objection before the panel or at later hospital
appellate review hearing constituted waiver].)
E.
Dr. Sadeghi argues the JRC was not commenced within 60 days as mandated by
section 809.2, subdivision (h) and Article VIII, Section 3.C of the hospital's bylaws.13
This argument was appropriately rejected by the superior court. Dr. Sadeghi first
12 Section 809.3, subdivision (c) requires the peer review body to "adopt written provisions governing whether a licentiate shall have the option of being represented by an attorney at the licentiate's expense." It further provides "[n]o peer review body shall be represented by an attorney if the licentiate is not so represented . . . ." (§ 809.3, subd. (c).) Article VIII, Section 4.B of the hospital's bylaws provides the medical staff member is "entitled to representation by legal counsel in any phase of the hearing by an attorney at law" and that the "Medical Executive Committee shall not be represented by an attorney at law if the member is not so represented."
13 Although Dr. Sadeghi refers to 60 days as the relevant time limit, the hospital's bylaws require the hearing to be commenced within 45 days if a summary suspension is involved. 31 exercised his right to a formal hearing on May 31, 2007. The hearing commenced 40
days later with voir dire of the JRC members on July 9, 2007, within the required
timeframe. Dr. Sadeghi argues Code of Civil Procedure, section 581, subdivision (a)(6),
which defines commencement of a trial as the beginning of opening statements or the
examination of the first witness, applies. According to Dr. Sadeghi, therefore, the
hearing did not commence until the first witness was called on September 25, 2007. Dr.
Sadeghi provides no support for this contention. We decline to impose a definition set
forth in the Code of Civil Procedure on the medical peer review system.
Dr. Sadeghi also contends the hearing was not completed within a reasonable time
and Coppo granted continuances without good cause as required by section 809.2,
subdivision (h). Dr. Sadeghi asserts that throughout the three-year ordeal he was pressing
to move the hearing forward while the MEC and its counsel frustrated those efforts.
While there is no question the hearing took an inordinate amount of time, the record does
not corroborate Dr. Sadeghi's account of the delay.
Most notably, a 15-month break in the proceedings, from June 2008 to September
2009, resulted from Dr. Sadeghi's own course of action. Specifically, after 15 hearing
sessions, Dr. Sadeghi retained new counsel and changed strategy. After cancellation of
the hearing session scheduled for June 23, 2008, despite Coppo's repeated requests for
additional hearing dates, Muellenberg failed to provide dates for the summer of 2008.
Instead, on August 4, 2008, Dr. Sadeghi sent a letter to the MEC requesting
reinstatement. Thereafter, Dr. Sadeghi agreed to adjourn proceedings while the MEC
considered his request. After the MEC declined to reinstate Dr. Sadeghi,
32 communications among counsel, the hearing officer and the panel members concerning
the reconstitution of the JRC occurred through the summer of 2009. By the parties'
agreement, the judicial review hearing finally resumed on September 23, 2009.
Also contrary to Dr. Sadeghi's assertions, the record relating to the scheduling of
hearings before and after the interim adjournment shows cooperation among all parties to
move the proceedings forward as quickly as possible. The one 30-day continuance
granted in August 2007 was based on a showing of good cause and was granted only after
briefing and oral argument. Hearing dates were otherwise set based on the parties'
agreement. The pace of the proceedings was understandably constrained by the
schedules of the five panel members, all busy practicing physicians, the hearing officer,
counsel for both sides, and 21 percipient and expert witnesses. Despite these constraints,
Coppo worked diligently to advance the case.
In light of these facts, we find no denial of Dr. Sadeghi's right to have the charges
adjudicated within a reasonable amount of time.
III.
Finally, Dr. Sadeghi contends insufficient evidence supported the JRC's finding
that the suspension of his privileges "as of the time of the JRC decision" was reasonable
and warranted. He argues had he been able to present evidence concerning his technical
ability, mental wellbeing and fulfillment of the requirements imposed by the MEC after
his privileges were suspended, the MEC could not have sustained its burden of proof.
We reject this hypothetical. As discussed, the JRC was charged with determining
whether the MEC's decisions in 2007 were reasonable and warranted at the time they
33 were made. Dr. Sadeghi does not contend insufficient evidence supported those findings.
Further, after our independent review of the record, we conclude the JRC's findings were
supported by substantial evidence.
DISPOSITION
The order is affirmed. Each party to bear its own costs.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
34 Filed 11/19/13 COURT OF APPEAL - STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
H. MEHRDAD SADEGHI, Plaintiff and Appellant, v. SHARP MEMORIAL MEDICAL CENTER CHULA VISTA, Defendant and Respondent. D060429 San Diego County No. 37-2010-00080039-CU-WM-SC
THE COURT:
The opinion filed October 23, 2013, is ordered certified for publication.
HUFFMAN, Acting Presiding Justice
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