Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BS109274, David P. Yaffee, Judge.
Helton Law Group, Ralph G. Helton and Kelly A. Mahoney for Defendants and Appellants.
Fenton & Nelson, Henry R. Fenton, Dennis E. Lee, and Benjamin J. Fenton for Plaintiff and Respondent.
CHAVEZ, J.
Defendants and appellants Providence Saint Joseph Medical Center (Providence), Board of Directors of Providence Saint Joseph Medical Center, Boris Larreta, M.D. (Larreta), as Chief of Staff of Providence Saint Joseph Medical Center, and Medical Staff of Providence Saint Joseph Medical Center, appeal from the judgment entered in favor of plaintiff and respondent George Andros, M.D. (Andros) after the trial court issued a peremptory writ of mandate ordering Providence to vacate the summary suspension of Andros’s medical staff privileges and prohibiting Providence from suspending or otherwise limiting those privileges except in accordance with the hearing and review procedures set forth in Providence’s bylaws. We affirm the judgment.
Defendants and appellants are referred to collectively as Providence.
BACKGROUND
Andros is a licensed physician and a vascular surgeon who has been a staff member at Providence for over 36 years. He also served as Chairman of the Vascular Surgery Section at Providence for more than 20 years and has been the Director of Vascular Services at Providence since 2002.
Providence’s bylaws provide that each member of the medical staff shall have what is commonly referred to as a “covering” physician in the event that the member is unavailable. Article III, section 3 of the bylaws provide in relevant part:
“Each member shall be available for emergencies and to provide follow-up care to his or her patients, and when unavailable, shall arrange for another Staff member or Locum Tenens physician with equivalent qualifications and clinical privileges to provide continuous care.”
Until January 2007, Andros’s covering physician had been Dr. Stephen Lauterbach, another member of Providence’s medical staff. Providence suspended Lauterbach’s staff privileges in January 2007 and thereafter informed Andros that he needed to designate a new covering physician.
In March 2007, Dr. Robert Wagmeister (Wagmeister), another member of Providence’s medical staff with vascular surgery privileges, agreed to serve as Andros’s covering physician. At that time, Wagmeister was already serving as the covering physician for Dr. William B. Cohen, another member of Providence’s medical staff with vascular surgery privileges. Wagmeister’s practice focused on vascular exposure for neurosurgeons and orthopedic surgeons.
Larreta, the Chief of Staff at Providence Saint Joseph Medical Center, had concerns about Wagmeister’s competence to handle emergency coverage for vascular emergencies. On March 6, 2007, Larreta telephoned Wagmeister to discuss his agreement to serve as Andros’s covering physician. After that conversation, Wagmeister decided to withdraw his agreement to serve as Andros’s covering physician.
On March 7, 2007, Larreta telephoned Andros and advised him that Wagmeister had misunderstood the requirements for serving as Andros’s covering physician and had decided to withdraw his agreement to provide such coverage. On March 8, 2007, Larreta learned that Wagmeister had changed his mind and decided not to withdraw his agreement to serve as Andros’s covering physician.
On March 16, 2007, Laretta sent a letter to Wagmeister informing him that Laretta had reviewed Wagmeister’s privileges and clinical activity at Providence for the previous 24 months and had concluded that Wagmeister could not provide adequate coverage for Andros based on Wagmeister’s “very limited scope of practice in a very specialized area.” Larreta maintains that he made this decision based on concerns for patient safety. In his letter to Wagmeister, Larreta stated that a physician’s qualifications to provide alternate coverage for a vascular surgeon were “particularly important” because the alternate “may be called on to deal with potentially life, limb, or organ threatening emergencies.” Larreta further stated that he would reconsider his decision if Wagmeister provided proof of activity at other hospitals that were similar to the clinical privileges held by Andros. Wagmeister did not provide Larreta with this information.
On March 20, 2007, Andros sent a letter to Larreta, arguing that Larreta’s unilateral decision to reject Wagmeister as Andros’s covering physician was improper and that such a decision should be made, if at all, by a medical committee. Andros also spoke in person with Larreta, expressing the same concerns. Larreta, however, refused to alter his decision.
Andros also spoke with Providence’s Administrator in an attempt to reverse the decision or to refer the matter to a medical committee, but the Administrator told him that because it was a “medical staff matter” the administration would not intervene, and that Larreta had properly exercised his authority as Chief of Staff. Providence thereafter barred Andros from exercising any vascular surgery privileges, on the ground that he does not have a covering physician.
On June 6, 2007, Andros filed a verified petition for writ of mandamus pursuant to Code of Civil Procedure section 1085 seeking to set aside the suspension of his vascular surgery privileges and to compel Providence to approve Wagmeister as his covering physician. In support of his petition, Andros submitted a declaration stating that approximately 90 percent of his total income is derived from the exercise of his vascular surgery privileges at Providence, and that he estimates a loss of approximately $400,000 in annual income after Providence suspended his medical privileges.
Providence opposed Andros’s petition. In support of its opposition, Providence submitted the declaration of its Chief of Staff, Larreta, stating that Andros’s staff privileges were suspended in February 2007 for failure to designate an alternate covering physician. Laretta stated that he reviewed Wagmeister’s clinical competence and concluded that Wagmeister was not qualified to cover for Andros, based on Providence’s concerns for patient safety. In his declaration, Larreta further stated that Andros wrote to him on March 20, 2007, requesting that the decision be referred to Providence’s Surgery Committee and its Credential Committee, but that Andros never made a timely written request for a review of the decision.
At a hearing on October 30, 2007, the trial court requested supplemental briefing from the parties on whether Providence’s bylaws required a staff physician to designate a covering physician before the staff physician becomes unavailable and whether the bylaws permit Providence to suspend a physician’s staff privileges if the physician fails to make such an advance designation.
The trial court also requested supplemental briefing from Andros to support his position that Providence’s failure to suspend other physicians for similar acts prevents his suspension in this case.
After supplemental briefing was complete, the matter was heard on January 30, 2008. The trial court granted in part and denied in part Andros’s petition for writ of mandate. In its minute order, the trial court stated that there was nothing in Providence’s bylaws or rules and regulations that authorized Providence to suspend Andros’s staff privileges on account of the dispute concerning designation of a covering physician without first providing him with the hearing and review procedures set forth in the bylaws. The trial court concluded that Providence’s decision to suspend Andros’s staff privileges without providing him with any hearing or review was arbitrary, capricious, and unsupported by any evidence that the suspension was justified by Providence’s governing documents, or by any emergency or medical necessity, or by any imminent danger to the health of any individual.
The trial court denied Andros’s petition seeking to compel Providence to approve Wagmeister as his covering physician. Andros has not appealed that ruling.
On March 19, 2008, the trial court issued a peremptory writ of mandate ordering Providence to vacate the summary suspension of Andros’s staff privileges and prohibiting Providence from suspending or otherwise limiting Andros’s staff privileges unless and until the hearing and review procedures set forth in article VI of Providence’s bylaws are followed. This appeal followed.
DISCUSSION
I. Applicable Law and Standard of Review
Code of Civil Procedure section 1085, subdivision (a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.”
“To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty. [Citation.] A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.) On appeal following a trial court’s decision on a petition for a writ of mandate, the reviewing court ‘“need only review the record to determine whether the trial court’s findings are supported by substantial evidence.”’ (Lake v. Reed (1997) 16 Cal.4th 448, 457.) We review issues of law independently. (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.)
II. The Trial Court Properly Granted the Writ of Mandate
Providence contends the trial court improperly granted the writ of mandate because Providence owes no ministerial duty to Andros; Andros has not been deprived of any beneficial right; and Andros has failed to establish that he had no other plain, speedy, or adequate remedy.
A. Ministerial Duty
Providence argues that it has no ministerial duty “to allow an unqualified physician to provide on-call coverage.” The ministerial duty at issue here, however, is not the selection of an alternate covering physician, but the duty to provide Andros with adequate notice, review, and a hearing before suspending his vascular surgery privileges. That duty is imposed by Business and Professions Code section 809 and the terms of Providence’s own bylaws.
Business and Professions Code section 809.5 allows a hospital to summarily suspend a physician’s clinical privileges only when the failure to do so “may result in an imminent danger to the health of any individual” and the physician “is subsequently provided with the notice and hearing rights set forth in [Business and Professions Code] Sections 809.1 to 809.4.” (§ 809.5, subd. (a).) Such a suspension may only be imposed by a “peer review body” or by the “governing body of an acute care hospital, or its designee... provided the governing body of the acute care hospital has, before the suspension, made reasonable attempts to contact the peer review body.” (§ 809.5, subd. (b).)
The notice and hearing requirements set forth in Business and Professions Code section 809 are mandatory and must be incorporated into a hospital’s bylaws. (Sahlobei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1147.) Providence’s bylaws include such provisions. Article V, section 3 of Providence’s bylaws authorizes its Chief of Staff to impose summary suspension or restriction of a professional staff member’s clinical privileges “[w]henever the failure to immediately suspend or restrict a practitioner’s clinical privileges may result in an imminent danger to the health of any individual,” but requires that written notice of the summary suspension be provided to the practitioner. The notice of suspension must inform the practitioner of the right to request Providence’s Executive Committee to review the suspension. If the Executive Committee does not terminate the summary suspension within 14 days from the date on which it was imposed, Providence’s Administrator must give the practitioner notice of the right to request a formal hearing. If a hearing is requested, the Executive Committee must complete its investigation of the matter and give prompt notice of its recommendation before the hearing date.
The provisions governing formal hearings are set forth in article VI of Providence’s bylaws. Section 1, subsection 1 of article VI provides in part: “The purpose of this Article is to permit the Professional Staff and Medical Center to resolve issues related to professional practice and qualifications for clinical privileges, fairly, expeditiously and with due regard for both the need to protect patients and the interests of practitioners.” Subsection 2 provides in part: “The sole purpose of the formal hearings, informal reviews and appeals provided in this Article is to evaluate individual practitioners on the basis of bylaws, rules, regulations, policies and standards of the Professional Staff and Medical Center.”
Providence argues that it reasonably and fairly suspended Andros’s privileges because he failed to designate a qualified alternate covering physician. Providence’s bylaws require its members, “when unavailable... shall arrange for another Staff member or Locum Tenens physician with equivalent qualifications and clinical privileges to provide continuous care.” The trial court found that there is no provision in the bylaws requiring Andros, before he becomes unavailable, to designate an alternate covering physician to act in his stead if and when he does become unavailable. The trial court also found no provision in the bylaws allowing Providence to suspend Andros for failure to make such an advance appointment. Providence has presented no evidence to the contrary. Moreover, Andros did make such an advance designation in this case, identifying Wagmeister as his alternate covering physician in the event he becomes unavailable. It was Providence’s disapproval of Andros’s selection, and not Andros’s failure to designate an alternate, that led to the suspension of Andros’s staff privileges. Substantial evidence supports the trial court’s determination that Providence’s summary suspension of Andros’s privileges was not authorized by the bylaws.
Providence argues that “[t]he purpose of Andros’ suspension is to protect patients by preventing a life threatening situation from arising where no qualified alternate is available to cover for him.” Providence further argues that its duty to ensure patient safety “is the most important duty a hospital undertakes” and therefore “supersedes” any duty it may owe to Andros. Providence’s position, however, conflicts with the terms of its own bylaws. While the bylaws allow summary suspension of a physician’s clinical privileges when the failure to do so “may result in an imminent danger to the health of any individual,” they also require Providence to provide the physician with notice, review, and a hearing. Nowhere in the bylaws does it state that the duty to ensure patient safety supersedes Providence’s obligation to comply with these due process requirements.
Providence contends that Business and Professions Code section 809 does not apply to Andros’s suspension because the statute governs only suspensions imposed by a hospital’s medical staff for a medical cause or reason, and Andros’s suspension was an administrative suspension imposed by Providence’s administrative governing body. There is no support for Providence’s argument that the statute distinguishes between suspensions imposed by a hospital’s administrative staff and those imposed by the medical staff. Providence’s contention that Andros’s suspension was not for a medical cause or reason also contradicts its argument that Andros was suspended because of patient safety concerns. The record contains substantial evidence that Providence owed a ministerial duty to provide Andros with adequate notice, review, and a hearing before suspending his vascular surgery privileges.
B. Beneficial Right
Providence argues that Andros has not been deprived of a beneficial right because the suspension of his vascular surgery privileges “is merely a temporary measure” that can be set aside upon confirmation of a qualified alternate covering physician. This argument overlooks the fact that Andros has been deprived of income he would have earned from his vascular surgery practice at Providence during the period of suspension. There was evidence that Andros has lost $400,000 in annual income as the result of his suspension. Andros’s right to exercise his vascular surgery privileges at Providence is a property interest directly related to the pursuit of his livelihood. It is thus a fundamental right that cannot be suspended or revoked without notice and a hearing. (Bergeron v. Desert Hosp. Corp. (1990) 221 Cal.App.3d 146, 149.)
C. No Other Plain, Speedy, or Adequate Remedy
Providence argues that the writ of mandate should not have been issued because Andros had the adequate alternative remedy of designating a physician other than Wagmeister as Andros’s alternate for on-call coverage. The relevant inquiry is not whether Andros could have taken alternative actions of any sort other than petitioning for mandamus, but whether he had an adequate alternative remedy “in the ordinary course of law.” (Code Civ. Proc., § 1086.)
Providence contends Andros failed to exhaust his administrative remedies under the bylaws by requesting a hearing concerning his suspension. Providence’s failure to provide Andros with notice, review and a hearing, as required under the bylaws, however, precludes it from relying on Andros’s alleged failure to exhaust his administrative remedies as a bar to this action. (Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465, 477-478.) Moreover, Andros’s requests that Providence’s medical committees review the basis for his suspension – Wagmeister’s alleged lack of qualifications – constituted requests for administrative remedies that Providence ignored or denied.
Substantial evidence supports the trial court’s findings that Providence’s decision to summarily suspend Andros’s privileges without providing him with any hearing or review was arbitrary, capricious, and unsupported by evidence that the action was justified under its governing documents, or by any emergency or medical necessity, or by an imminent danger to the health of any individual.
DISPOSITION
The judgment is affirmed. Andros is awarded his costs on appeal.
We concur: BOREN, P. J. DOI TODD, J.