Som v. Board of Trustees

98 So. 3d 500, 2012 WL 3797709, 2012 Miss. App. LEXIS 552
CourtCourt of Appeals of Mississippi
DecidedSeptember 4, 2012
DocketNo. 2011-CA-00578-COA
StatusPublished
Cited by2 cases

This text of 98 So. 3d 500 (Som v. Board of Trustees) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Som v. Board of Trustees, 98 So. 3d 500, 2012 WL 3797709, 2012 Miss. App. LEXIS 552 (Mich. Ct. App. 2012).

Opinion

ISHEE, J.,

for the Court:

¶ 1. In 2009, Dr. Santanu Som, a physician employed by the Natchez Regional Medical Center (hospital), was suspended by the hospital’s board of trustees (board) from practicing intra-abdominal surgeries at the hospital. Dr. Som appealed the board’s decision to the Adams County Chancery Court. The chancery court affirmed the board’s decision. Aggrieved, Dr. Som appeals on the grounds that the [502]*502hospital prevented him from fully defending himself at a hearing regarding his suspension and that the hospital failed to comply with appropriate standards when reviewing his performance of intra-abdom-inal surgeries. Finding no error, we affirm the chancery court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Dr. Som joined the staff of the hospital on June 10, 2008, as an associate member practicing general surgery. By August 2008, the hospital had received numerous reports from other hospital employees questioning Dr. Som’s pei'formance in intra-abdominal surgeries. Pursuant to the hospital’s medical staff bylaws (bylaws), the hospital’s medical executive committee (committee) ordered a peer review of Dr. Som’s surgical cases.

¶ 3. Shortly after the committee’s peer review had begun, the committee received written complaints regarding Dr. Som’s surgical practices from nurses who had participated in one of his intra-abdominal surgeries at the hospital in November 2008. The complaints were forwarded to the hospital’s chief executive officer (chief). The chief then formed an ad hoc investigative committee (the AHIC) to gather information on Dr. Som’s conduct in intra-abdominal surgeries performed at the hospital.

¶ 4. In February 2009, the committee interviewed Dr. Som. Dr. Som’s interview and the AHIC’s findings were presented to the committee at a hearing on February 27, 2009. The committee then recommended to the chief that Dr. Som’s summary suspension be continued based on quality-of-care and surgical-training concerns. The chief notified Dr. Som by a letter dated March 4, 2009, of the committee’s recommendation. Because the recommendation was adverse to Dr. Som, the bylaws granted him the right to request an appellate hearing on the matter.

¶ 5. Dr. Som retained an attorney and requested a hearing on the proposed continued suspension. Present at the June 2009 hearing were Dr. Som and his counsel; counsel for the hospital, the AHIC, the committee, and the board; six members of the AHIC; and four members of the hospital’s administrative staff. Seven physicians, including Dr. Som, and two nurses were called to testify. Over twenty-five exhibits were entered into evidence.

¶ 6. The bylaws allowed each party the right to cross-examine witnesses at the hearing. During the hearing, Dr. Som requested to personally cross-examine one of the testifying physicians. However, because Dr. Som was also a testifying witness, the committee determined that cross-examination by Dr. Som’s attorney was sufficient to satisfy the bylaws’ provision.

¶ 7. In July 2009, the committee concluded that the suspension of Dr. Som’s clinical privileges to perform intra-abdominal surgeries should be continued. Under the bylaws, Dr. Som sought appellate review by the board. At a hearing in September 2009, the board affirmed the committee’s decision. Dr. Som again appealed to the chancery court on the ground that the committee’s denial of his personal cross-examination of a witness prevented him from fully defending himself and was a direct violation of the bylaws. He also asserted that the hospital failed to adhere to proper standards in its review of his performance in intra-abdominal surgeries. The chancery court affirmed the board’s determination, and Dr. Som now appeals the chancery court’s judgment. Finding no error, we affirm.

DISCUSSION

¶ 8. In reviewing a hospital’s decision to limit a doctor’s privileges, we have held:

[503]*503No court should substitute its evaluation of such matters for that of the [h]ospital [b]oard. It is the [b]oard, not the court, which is charged with the responsibility of providing a competent staff of doctors. The [b]oard has chosen to rely on the advice of its [m]edical [s]taff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow responsibility of assuring that the qualifications imposed by the [bjoard are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere.

Lloyd v. Jefferson Davis Mem’l Hosp., 345 So.2d 1046, 1048 (Miss.1977) (quoting Sosa v. Bd. of Managers of Val Verde Mem’l Hosp., 437 F.2d 173, 177 (5th Cir.1971)). Furthermore, Mississippi Code Annotated section 73-25-93 (Rev.2008) provides that hospitals are authorized to “suspend, deny, revoke[,] or limit the hospital privileges of any physician practicing or applying to practice therein, if the governing board ... considers such physician to be unqualified .... ” The statute also provides that such restrictions on privileges must comply with the hospital’s bylaws. As such, our review of the chancery court’s order affirming the board’s determination is very limited. We look to the hospital’s bylaws to determine if the board’s suspension of Dr. Som was permissible.

I. Right to Cross-Examine Witnesses

¶ 9. Dr. Som’s first argument on appeal directly relates to the hospital’s provision under Article 8, Section 5, Bylaw 5.9, which states a physician “shall have the ... right[ ] ... to cross-examine any witness on any matter relevant to the issue of the [committee] [hjearing.” During the committee hearing, Dr. Som requested to personally cross-examine one of the physicians testifying on behalf of the AHIC. The committee denied Dr. Som’s request, but allowed Dr. Som’s attorney to proceed with the cross-examination. Therefore, Dr. Som asserts that his individual right to cross-examine was violated.

¶ 10. At first glance, Dr. Som’s argument appears to have some merit when reading Bylaw 5.9 in solitude. However, preceding Bylaw 5.9 is Article 8, Section 5, Bylaw 5.5, which states: “The affected practitioner ... shall be entitled to be ... represented at the hearing by an attorney.” As in any other civil or criminal matter, the hospital’s bylaws grant an accused the right to be represented by a skilled attorney in the field who acts on behalf of the accused during legal proceedings. Just as a party represented by counsel in any other legal matter may not personally cross-examine a witness at trial, so too do we see logic in not allowing a party represented by counsel to conduct a party led cross-examination during a hospital committee hearing. Party-led examinations and cross-examinations are only proper in cases of pro se litigants. Such logic was reiterated by the hospital in its brief: “Certainly if [Dr.

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Bluebook (online)
98 So. 3d 500, 2012 WL 3797709, 2012 Miss. App. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/som-v-board-of-trustees-missctapp-2012.