Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG07318179.
Reardon, Acting P.J.
The trial court granted respondent Dr. Maria Berrones’s petition for a writ of administrative mandamus, vacating the determination of a peer review panel that appellant Permanente Medical Group, Inc.’s (Permanente) decision not to renew her employment contract was reasonable. Permanente appeals the judgment, contending inter alia that (1) the trial court’s finding of an appearance of bias in the selection of the hearing officer and peer review panel was erroneous; and (2) its ruling that the hearing officer erred by excluding evidence of discrimination or retaliation against Berrones was also in error. As we agree that the trial court erred, we reverse the judgment.
Both parties assert that various statements of fact in the opposing briefs are unsupported by the record on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We rely on the primary source of the record itself-not the summaries set forth by the parties in their briefs-to determine what transpired in the trial court and at the peer review level. To the extent that the briefs contain references to facts that are unsupported by that record, we ignore them. (Id., rule 8.204(e)(2)(C).)
A. Employment History
Respondent Maria Berrones, M.D. is a board-certified radiologist. In March 2005, appellant Permanente hired her to work as an associate physician at its Stockton medical center. Her employment contract specified a term of two years to run through May 15, 2007.
Within a few months, concerns about Berrones’s radiological competency surfaced. In July 2005, Berrones failed to diagnose one patient’s case of appendicitis, did not recognize a colon abnormality that turned out to be cancerous for a second patient, and failed to indicate a liver abnormality in a third patient. In August 2005, she failed to note a symptom that might have indicated diverticulitis or a perforated intestine in another patient. In December 2005, Berrones did not diagnose a symptom in the peritoneal cavity of a fifth patient that could have had serious adverse ramifications.
In June 2006, Berrones received a negative performance review from Permanente’s chief of medical quality-Dr. Michael Wong-who charged that she had not performed properly in a series of cases. Later that month, she was placed on paid administrative leave. In August and September 2006, Dr. Moses Elam-the physician-in-chief at Stockton’s Permanente facility-and Dr. Wardon Wong (Dr. Wong)-its assistant physician-in-chief and medical-legal chief-told Berrones that if she did not resign, she would be terminated.
On March 20, 2007, Elam formally advised Berrones by letter that he intended to terminate her employment as of April 30, 2007, and that Permanente would not renew her employment contract. One ground of this decision was concern about the quality of her radiology skills that was raised through internal review. (See Bus. & Prof. Code, § 809.1, subd. (a).) These grounds for nonrenewal of her contract were reportable to the Medical Board of California and the National Practitioner Data Bank. (See §§ 800, subd. (a)(4), 805, subds. (a)(5), (6), (e), 809, subd. (a)(9)(B);; see 42 U.S.C. §§ 11131-11137.) Berrones requested a peer review hearing on the proposed contract termination. (See § 809.2.) In April 2007, she obtained a preliminary injunction barring Permanente from terminating her contract for medical cause before conducting the peer review hearing.
All statutory references are to the Business and Professions Code unless otherwise indicated.
B. Discrimination and Retaliation Claims
In March 2006, Berrones-who is a Latina-had complained to Permanente management that her superiors-Chief of Radiology Dr. Michael Reitz and Assistant Chief of Radiology Dr. Randall Engstrom-had subjected her to differential treatment. Permanente did not file its competency charges against Berrones until after she raised this claim. In March 2007, she demanded that her sex discrimination, racial discrimination and retaliation claims be subjected to arbitration, pursuant to the terms of her employment contract. She cited Permanente, Drs. Reitz, Engstrom, Elam and Wardon Wong as defendants in the discrimination and retaliation action. Shortly after Berrones sought arbitration of these claims, Dr. Elam advised her that her employment contract with Permanente would not be renewed.
C. Peer Review of Competency Issues
Meanwhile, Berrones’s peer review was conducted. Permanente selected Attorney Florence Di Benedetto to serve as hearing officer at the peer review panel hearing, over Berrones’s objection. Di Benedetto was to receive a fee from Permanente for her services as Berrones’s hearing officer. Berrones’s motion to recuse her was repeatedly denied. (§ 809.2, subds. (b)-(c).) Permanente also selected the physicians to serve on her peer review panel including Drs. Jennifer Gray, Pamala Ferron and Sherry Han. (§ 809.2, subds. (a), (c).) Dr. Wong asked Drs. Gray and Han to serve as peer review panel members. Dr. Han also served as assistant chief of quality working directly under Dr. Michael Wong. Berrones objected to each of these peer review panel members, but Di Benedetto overruled each of those objections.
A fourth doctor-Dr. Sheryl Hancock-participated as an alternate at the hearing, but was not part of the peer review panel.
At the February 2008 peer review panel hearing, Berrones faced charges relating to five specific cases. (See pt. I.A., ante.) Three Permanente radiologists from hospitals other than the Stockton facility and one non-Permanente radiologist reviewed these cases. Berrones renewed her request that Di Benedetto recuse herself at the hearing, without success.
Berrones also sought to introduce evidence that Permanente’s determination not to renew her contract was discriminatory and retaliatory-a move which Permanente opposed. Di Benedetto concluded that the issue before the peer review panel was whether Berrones was competent in the five cases that were the subject of the charges against her. As such, she excluded as irrelevant any evidence of alleged ulterior motive, although she allowed reasonable cross-examination on witness credibility.
In March 2008, the peer review panel unanimously concluded that Permanente’s decision not to renew Berrones’s employment contract was reasonable and warranted. Di Benedetto was not a voting member of the panel. In April 2008, Permanente filed a report advising the National Practitioner Data Bank that Berrones’s clinical privileges had been restricted due to substandard or inadequate skills.
D. Administrative Mandamus Action Challenging Peer Review Decision
In May 2008, Berrones filed a petition for a writ of administrative mandamus, alleging that the unilateral appointment of the hearing officer and members of the peer review panel violated her due process rights. (§ 809.8; Code Civ. Proc., § 1094.5.) She sought to have the peer review panel’s determination vacated. In November 2008, Berrones filed an amended petition, which Permanente answered in March 2009.
A peer review decision is subject to judicial review by administrative mandate. (Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1499; see § 809.8.)
The trial court conducted a hearing on the amended petition in March 2009. In May 2009, it filed a statement of decision granting Berrones’s petition, based on the appearance of bias on the part of the hearing officer and the members of the peer review panel. It issued a judgment granting a peremptory writ of administrative mandate. The judgment set aside the peer review panel’s March 2008 decision and remanded the case for a new peer review hearing. The trial court also found that Di Benedetto erred by excluding Berrones’s evidence that Permanente filed charges against her as a pretext to avoid culpability for its discrimination against her or as retaliation against her.
The writ of administrative mandate ordered that the March 2008 decision be vacated and that Permanente conduct a new hearing. The writ ordered Permanente to complete whatever acts were necessary to return Berrones to the position she was in before the peer review panel decision. In June 2009, notice of entry of judgment was given. Permanente’s motion for new trial on the evidentiary ruling was denied in July 2009. (Code Civ. Proc., § 657.)
E. Arbitration of Discrimination and Retaliation Claims
In April 2009, an arbitrator denied Berrones’s discrimination and retaliation claims. In June 2009, Permanente petitioned the San Joaquin County Superior Court to confirm this award. The petition was granted in December 2009 by minute order, but no formal judgment has been filed yet in this matter.
In March 2010, we granted Permanente’s request for judicial notice of various documents without any determination of relevancy. We conclude that the minute order granting Permanente’s San Joaquin County petition to confirm the arbitrator’s award is relevant. In all other respects, we conclude that the matter submitted is not relevant to our determination. (Evid. Code, §§ 210, 452, subd. (d)(1), 459, subd. (a)(1).)
A minute order is not a judgment, but merely a basis on which a judgment may be made. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1121, fn. 3; see Code Civ. Proc., § 904.1, subd. (a)(1); see also 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 8, pp. 552-553.) The determination that Berrones was not the subject of discrimination or retaliation cannot be given collateral estoppel effect, because that ruling is not final and the time for Berrones to appeal it has not yet expired. (See Smith v. Selma Community Hospital, supra, 164 Cal.App.4th at p. 1506; Victa v. Merle Norman Cosmetics, Inc. (1993) 19 Cal.App.4th 454, 459-460.)
II. STATUTORY PEER REVIEW SCHEME
California law provides for peer review of a private hospital’s determination relating to a physician’s medical competency. The failure to renew a physician’s employment contract with a private hospital must be reported to the Medical Board of California and the National Practitioner Data Bank if the action is based on medical disciplinary cause or reason. (§§ 800, subd. (a)(4), 805, subds. (a)(5), (6), (e), 809, subd. (a)(9)(B); see Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 98 (Kaiser).) Although this reporting may affect the physician’s opportunities for other employment, the public has an interest in learning if a physician is deemed less than competent to practice medicine. Balancing these two competing interests, the Legislature allows the physician to obtain a peer review of an employment contract termination that would trigger a state or federal reporting requirement. (§§ 805, 809, subd. (a)(9)(B), 809.2; see 42 U.S.C. §§ 11131-11137.)
The Legislature has found that a fairly conducted peer review process preserves the highest standards of medical practice, by allowing medical peers to exclude those practitioners who provide substandard care to patients. (§ 809, subd. (a)(3), (6).) A fair peer review hearing process entitles a challenged physician to notice of a proposed action and of the reasons for it. On request, the physician has the right to a peer review hearing. (§§ 809.1, 809.2; see Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1147-1151.) At the option of the peer review body, either an arbitrator or an unbiased peer review panel serves as the trier of fact. A hearing officer may also be selected to preside over the peer review hearing. The physician must have a reasonable opportunity to voir dire the hearing officer and peer review panel members in order to determine their impartiality. If a hearing officer is selected, any challenge to impartiality is to be determined by that officer. (§ 809.2, subds. (a)-(c).) Ultimately, the peer review panel must determine whether or not the private hospital’s action was reasonable and warranted. (§ 809.3, subd. (b)(3).)
III. ADMINISTRATIVE MANDATE
This appeal arises in the context of a petition for writ of administrative mandate. If the loss of a professional license is at risk, a fundamental right is affected and a trial court determining a petition for a writ of administrative mandate must apply its independent judgment. (See Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811; Bixby v. Pierno (1971) 4 Cal.3d 130, 144-146.) The same test applies if the administrative determination substantially affects a fundamental vested right in a professional’s employment. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 318.) When exercising this independent judgment, the trial court’s scope of review is limited to whether the administrative body acted in excess of its jurisdiction; whether there was a fair hearing; and whether the administrative body committed a prejudicial abuse of discretion. If the administrative findings are not supported by substantial evidence, then an abuse of discretion is established. (Code Civ. Proc., § 1094.5, subds. (b), (c); see Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308; Yaqub v. Salinas Valley Memorial Healthcare System (2004) 122 Cal.App.4th 474, 483 (Yaqub).)
In an administrative mandate proceeding, when-as here-the trial court has exercised its independent judgment, its factual determinations are conclusive on appeal as long as they are supported by substantial evidence. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443 (Rosenblit).) To the extent that Permanente contests the trial court’s legal conclusions, this appeal presents legal questions that we determine anew on appeal. (See id. at p. 1444.)
Typically, a trial court applying the independent judgment test issues a statement of decision setting forth its determinations on all material facts, recites in its judgment that it applied this test, or it takes new evidence beyond that contained in the administrative record. (See Bixby v. Pierno, supra, 4 Cal.3d at pp. 143-144, fn. 10; see also 2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2003) § 16.52, p. 640.) The trial court issued a lengthy statement of decision reciting its findings of fact and conclusions of law about this matter.
IV. APPEARANCE OF BIAS
A. Legal Principles
First, Permanente contends that the trial court’s finding of an appearance of bias in its selection of the hearing officer and the peer review panel members was not supported by substantial evidence. A question of bias on the part of a hearing officer or a peer review panel member bears on whether the underlying administrative determination was made according to a fair procedure. (See Yaqub, supra, 122 Cal.App.4th at pp. 483-488.) In an administrative mandate action, this ultimate issue of procedural fairness is a question of law to be determined de novo on appeal. (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101; Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 285; Rosenblit, supra, 231 Cal.App.3d at pp. 1443-1444; see Yaqub, supra, 122 Cal.App.4th at p. 483; see also 1 Cal. Administrative Mandamus, supra, §§ 6.47, 6.54, pp. 198, 201; 2 Cal. Administrative Mandamus, supra, § 16.50, pp. 638-639.)
Initially, we note that Berrones asserts that her due process rights were implicated at the peer review hearing. However, in private hospital proceedings, fair procedure pursuant to section 809 is required, rather than constitutional due process as is required for governmental entities. (Kaiser, supra, 128 Cal.App.4th at pp. 97 fn. 12, 101-102; Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657; see Rosenblit, supra, 231 Cal.App.3d at p. 1445; see also 1 Cal. Administrative Mandamus, supra, § 6.95C, pp. 234-235.) Thus, we consider the legal issues posed on appeal through the lens of fair procedure, rather than constitutional due process.
Even if due process applied, it would allow more flexibility in an administrative context than it does in a judicial setting. (See Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1027 (Haas).)
In a governmental context, the United States Supreme Court has held that due process permits the combination of the investigative and adjudicative functions in such an administrative proceeding. (Withrow v. Larkin (1975) 421 U.S. 35, 46-50; Haas, supra, 27 Cal.4th at p. 1027; see Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737; see 1 Cal. Administrative Mandamus, supra, § 6.95D, pp. 235-236.) A fortiori, it appears that such a practice is proper in a case in which the standard is fair procedure, rather than due process.
A private hospital physician has a right to a fair procedure at a peer review proceeding. (Kaiser, supra, 128 Cal.App.4th at pp. 97 & fn. 12, 101-102, 108.) To that end, peer review panel members and the hearing officer must be unbiased persons who gain no direct financial advantage from the outcome of the review. The panel members may not act as accusers, investigators, fact finders or initial decision makers in the same matter. The hearing officer cannot serve as a prosecutor or advocate and is not entitled to vote on the ultimate issue before the panel. (§ 809.2, subds. (a)-(b); Kaiser, supra, 128 Cal.App.4th at pp. 108-109.)
When the issue is hearing officer or peer review panel member bias, fair procedure requires that the physician be given a sufficient opportunity to explore the possibility of bias. (Rosenblit, supra, 231 Cal.App.3d at pp. 1448-1449; see 1 Cal. Administrative Mandamus, supra, § 6.95C, pp. 234-235.) Berrones was afforded her statutory right to voir dire Di Benedetto and the panel members to test their impartiality. She challenged each of them, and this challenge was ruled on by Di Benedetto, sitting as the hearing officer, in accordance with statutory procedure. (See § 809.2, subd. (c).)
The trial court rejected Berrones’s claim that Di Benedetto was actually biased, holding instead that Permanente’s selection of the hearing officer and the peer review panel members raised an appearance of bias. Depending on the underlying facts, we determine whether an appearance of bias existed that is sufficient to overturn the administrative determination. (See Yaqub, supra, 122 Cal.App.4th at pp. 485-486; Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1142; see also 1 Cal. Administrative Mandamus, supra, § 6.95C, pp. 234-235.)
In a governmental context, the California Supreme Court has held that an administrative hearing officer has a pecuniary interest requiring disqualification when the governmental body selects and pays the hearing officer whose income from future adjudicative work depends entirely on the goodwill of the administrative body. (See Haas, supra, 27 Cal.4th at p. 1024.) Although the California Supreme Court announced this principle in a case involving administrative review by a governmental entity-a review subject to more stringent due process concerns than the fair procedure principles guiding the private hospital review before us-at least one appellate court has applied itin a private hospital peer review context. (See Yaqub, supra, 122 Cal.App.4th at p. 484.) Thus, the future income that a hearing officer anticipates receiving from the administrative entity is a key factor in determining whether an unacceptable risk of bias exists in a particular case. With these principles in mind, we turn to the trial court’s findings of fact in Berrones’s case.
B. Hearing Officer
1. Selection by Dr. Elam
The trial court concluded that an appearance of bias arose from its finding that Dr. Moses Elam-the physician-in-chief who authored Berrones’s termination letter-selected Di Benedetto to serve as the peer review panel hearing officer. Berrones objected to Permanente’s unilateral selection of Di Benedetto as hearing officer on the ground that Dr. Elam had a direct pecuniary and adversarial relationship with Berrones. She reasoned that the arbitration proceeding in which her discrimination and retaliation claims were to be determined would be affected by the peer review panel’s ruling on her competency.
We have two concerns about this finding of fact. First, Di Benedetto testified during her voir dire that she was selected to serve as hearing officer by Gary Dulberg-counsel for Permanente’s legal department. This is consistent with correspondence between Dulberg and Di Benedetto confirming her appointment. In his capacity as physician-in-chief, Dr. Elam informed Berrones of Di Benedetto’s selection as her hearing officer, but nothing in that notice supports a finding that he actually selected her. Although Berrones repeatedly asserted that Dr. Elam selected Di Benedetto to serve as hearing officer, we find no evidence in the record to support her claim. We are not bound by the trial court’s findings of fact unless substantial evidence supports them. (See Rosenblit, supra, 231 Cal.App.3d at p. 1443.)
In her brief, Berrones states that Dulberg, acting on Permanente’s behalf, selected Di Benedetto to serve as her hearing officer.
Second, even if we assume arguendo that Dr. Elam played a role in Di Benedetto’s selection, no prejudice appears to have resulted from it. The cross-admissibility of evidence from the competency and discrimination proceedings that Berrones feared did not occur. When the arbitrator determined her discrimination and retaliation claims, it specifically excluded evidence of the result of the peer review proceeding. At the peer review hearing, Di Benedetto precluded Berrones from putting on evidence of discrimination and retaliation. (See pt. V., post.) As these distinct issues have been kept separate, the prejudice from a spillover of one result into the other proceeding that Berrones feared did not come to pass.
More generally, we conclude that much of Berrones’s assertion that Dr. Elam was involved in Di Benedetto’s selection as hearing officer was made as a shorthand means of expressing her general claim that the unilateral selection of her hearing officer by anyone associated with Permanente was based on its self-interest and was thus improper. The trial court rejected this more general attack on Permanente’s unilateral selection of Di Benedetto, and properly so. No generally applicable constitutional principle permits an affected person to select the adjudicator. (Haas, supra, 27 Cal.4th at p. 1031 [government case].) In a private hospital context, the Legislature intended the unilateral selection of hearing officers and peer review panel members by the peer review body. Courts have upheld these statutory provisions. (Kaiser, supra, 128 Cal.App.4th at p. 109; see § 809.2, subd. (b).) The United States Supreme Court has held that due process is not offended by the administrative body performing both investigative and adjudicative functions. (Withrow v. Larkin, supra, 421 U.S. at pp. 46-50; Haas, supra, 27 Cal.4th at p. 1027; see Morongo Band of Mission Indians v. State Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) Considering all these circumstances, we are satisfied that even if Dr. Elam played a role in Di Benedetto’s selection as hearing officer, no impropriety arose from it.
2. Di Benedetto’s Financial Interest
a. Appearance of Bias
The trial court concluded that there was no actual bias on Di Benedetto’s part, finding she had no direct financial stake in the peer review hearing. However, the trial court found an appearance of bias on her part. It concluded that Permanente had manipulated her selection, thus creating an appearance of bias that it could not approve. The trial court vacated the peer review panel determination in part because Di Benedetto’s selection as the hearing officer presented an “unmistakable appearance of bias and impropriety, ” based on several factors. We consider each of these factors in turn.
b. Past Income Factor
The trial court noted that Di Benedetto had been paid substantial sums to represent medical staffing entities at many peer review hearings before she was appointed to conduct Berrones’s hearing. We conclude that this factor would not support a finding of an appearance of bias, because the key inquiry is not whether Di Benedetto earned past income from work as a hearing officer, but whether she could expect that a decision in Permanente’s favor might result in future employment for similar service.
In a case arising in a county agency context, the California Supreme Court has held that hearing officers must be appointed in a manner that does not create a risk that favorable decisions will be rewarded with future work. If a hearing officer’s income depends entirely on the hospital’s goodwill, this circumstance creates a pecuniary conflict of interest requiring disqualification. (See Haas, supra, 27 Cal.4th at pp. 1020-1021, 1024-1025.) Despite this, the court recognized that a governmental entity could eliminate a risk of bias by making an appointed hearing officer ineligible for future appointment for a set period of time. (Id. at p. 1037 fn. 22.)
When income from judging depends on the volume of cases that the hearing officer hears, the temptation exists to rule in favor of the entity selecting and paying the hearing officer. (Haas, supra, 27 Cal.4th at pp. 1031-1032.) If a financial interest would offer a possible temptation to an average hearing officer, then due process requires disqualification. (See id. at pp. 1025-1026, 1029-1030, 1034.) We inquire not whether a particular hearing officer has succumbed to temptation, but whether the economic realities make the design of the fee system vulnerable to possible temptation to the average hearing officer. (Yaqub, supra, 122 Cal.App.4th at p. 485.) Thus, the key inquiry is whether Di Benedetto might expect future income from Permanente if she ruled against Berrones at the peer review hearing. To the extent that trial court’s factual finding relates to Di Benedetto’s past history, it has no relevance unless it has some bearing on her future income potential.
c. Likelihood of Future Hearing Officer Work Factor
The trial court noted that Di Benedetto had testified that it was not likely that she would preside over such hearings in the future, suggesting that it was uncertain whether she would earn future income in this manner. Typically, we are bound by the trial court’s factual findings, but we are not required to apply them if they are not supported by substantial evidence. (See Rosenblit, supra, 231 Cal.App.3d at p. 1443.) Our review of the record does not provide substantial evidence to support this factual finding. In fact, the only evidence in the record of Di Benedetto’s potential future income from hearing officer work was that there was no reasonable likelihood that she would ever earn any income from such work after the Berrones hearing was complete.
In May 2007, Berrones voir dired Di Benedetto about her qualifications to serve as hearing officer. At that time, she testified that Permanente would be free to hire her again to serve in a similar function in the future, although she might be too busy to do so. Di Benedetto explained that she had closed her practice to new clients and the time she had to serve as a hearing officer was “extremely limited.” At that time, she expected that the Berrones case might be the last one over which she would preside. By February 8, 2008-three days before Berrones’s hearing began-the situation was even clearer. On that date, Di Benedetto advised the parties that she was retiring from private practice to assume a position as general counsel for Sutter Health. She stated that she would wind down her practice within the next six months. This testimony compels the conclusion that Di Benedetto reasonably expected to earn no future income from her work as a hearing officer. As the trial court’s contrary factual finding has no support in the record, it cannot support a conclusion of an appearance of bias.
d. Ruling on Objection to Hearing Officer Factor
The trial court also observed that Di Benedetto made all rulings on Berrones’s objections to her serving as hearing officer. Without more, this fact cannot support a finding of an appearance of bias, as the Legislature specifically authorizes the hearing officer to rule on such objections. (§ 809.2, subd. (c).)
e. Conclusion
The trial court’s findings of fact are either unsupported by substantial evidence or are not legal grounds to support a finding of an appearance of bias. The facts established in her May 2007 voir dire demonstrate that Di Benedetto did not earn her entire income from her hearing officer work, as she also earned income from other aspects of her private law practice. In fact, she testified that her hearing officer income was minimal when compared with the other income she generated as a working attorney. Thus, her situation differs significantly from that found to constitute grounds for disqualification in Haas.
Even more importantly, before Berrones’s formal hearing began, Di Benedetto advised the parties that she was no longer in a position to accept any hearing officer work in the immediate future, as she had accepted a new job that required the closing of her practice. The California Supreme Court suggested that a practice of precluding a hearing officer from being eligible for a significant period of time might be sufficient to prevent a pecuniary conflict of interest. (See Haas, supra, 27 Cal.4th at p. 1037 fn. 22.) As Di Benedetto’s new employment rendered her ineligible to receive any future income from Permanente in the foreseeable future after the completion of Berrones’s peer review hearing, no reasonable possibility existed that she might be rewarded in the future for a decision favorable to Permanente. Thus, as a matter of law, Permanente’s selection of Di Benedetto as hearing officer did not raise an appearance of bias warranting invalidation of the peer review panel’s determination against Berrones.
C. Peer Review Panel Members
The trial court also concluded that an appearance of bias arose from Dr. Wong’s selection of two of the peer review panel members, because he was the assistant physician-in-chief and the medical-legal chief at Permanente’s Stockton hospital. It concluded that Permanente had “engineered” the peer review panel by populating it with doctors whose race and gender were similar to Berrones, so that the peer review panel would appear not to be motivated by gender or racial bias. It vacated the decision of the peer review panel on this basis.
The record on appeal supports the trial court’s findings that two of the three doctors who served on Berrones’s peer review panel were asked to do so by Dr. Wong. Dr. Gray testified that Dr. Wong asked her to serve on Berrones’s peer review panel, not that she was told that she would do so. During her voir dire, Dr. Han also testified that Dr. Wong asked her to serve on this panel. She testified that Dr. Wong emphasized to her the seriousness of the process and told her that he sought someone who could be fair. Both doctors indicated that if the evidence warranted a decision against Permanente, each was prepared to rule against her employer. Berrones was afforded and exercised her statutory right to voir dire these panel members to test their impartiality. (§ 809.2, subd. (c).)
Dr. Wong’s participation in the selection of the peer review panel is cited by the trial court in support of its conclusion that Permanente improperly engineered the panel in order to insulate it from attack on the basis of gender or racial bias. Thus, the underlying legal question is whether it is inappropriate for a hospital to select peer review panel members who mirror a challenged physician’s gender or ethnicity. By law, the Legislature seeks to encourage unbiased peer review by requiring-when feasible-the inclusion of a panel member practicing in the same specialty as the challenged physician. (§ 809.2, subd. (a).) It stands to reason that selecting panel members who share other characteristics with the physician whose competency is under review would be viewed as an appropriate action, not an inappropriate one. We conclude that Permanente’s efforts to find peer review panel members with characteristics similar to those shared by Berrones did not render the proceedings unfair. In the case before us, we find-as a matter of law-insufficient evidence of an appearance of bias on the part of the hearing officer or the peer review panel members to warrant invalidation of the decision of that panel.
V. EVIDENTIARY RULINGS
Permanente also contends that the trial court’s evidentiary ruling was erroneous. At the peer review hearing, Di Benedetto ruled that Berrones was not permitted to put on affirmative evidence of Permanente’s alleged discrimination or retaliation, as those issues were being resolved in a separate arbitration proceeding. Berrones was permitted to cross-examine witnesses about credibility or bias. At the administrative mandamus proceeding, the trial court concluded that the hearing officer committed legal error by excluding this proffered evidence of discrimination and retaliation. Permanente’s unsuccessful motion for new trial challenged the trial court’s evidentiary ruling.
The trial court rejected any implication that this error was the result of any actual bias on Di Benedetto’s part.
In essence, the trial court ruled that Berrones’s proffered evidence of discrimination and retaliation was relevant at the peer review hearing, because that evidence could have established a defense to Permanente’s charges that she was not medically competent. The improper exclusion of material evidence relating to a defense may constitute a prejudicial abuse of discretion. (King v. Board of Medical Examiners (1944) 65 Cal.App.2d 644, 649; see 1 Cal. Administrative Mandamus, supra, § 6.72, p. 214.) Thus, the issue before us is whether or not this proffered evidence was relevant to the issue before the peer review panel.
Relevant evidence is defined by statute as any evidence having any tendency in reason to prove or disprove a disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) The interpretation of statute always presents a question of law for us to decide anew on appeal. (See Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 168; In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 472.) The question of whether evidence of discrimination and retaliation is relevant at a peer review hearing conducted pursuant to the policies underlying section 809.2 presents a question of law for us to determine anew on appeal.
Relevant evidence also includes evidence relevant to the credibility of a witness or a hearsay declarant. (Evid. Code, § 210.) Di Benedetto’s exclusion order did not preclude Berrones from bringing out evidence to challenge the credibility of witnesses.
We conclude that the hearing officer correctly determined that evidence of discrimination and retaliation was not relevant to the question before the peer review panel-whether Permanente’s termination of Berrones’s employment at the end of her contract period was reasonable and warranted. (See § 809.3, subd. (b)(3).) The purpose of peer review is to determine issues related to the physician’s competency, in order to protect patients from substandard care. The focus of this inquiry is medical, not legal. For this reason, the Legislature requires that this inquiry be determined by medical practitioners, rather than lawyers or judges. (See §§ 809, subd. (a)(3)-(6), 809.3, subds. (b)-(c).) Consistent with the policy reasons behind the statutory peer review process, we conclude that evidence of illegal discrimination or retaliation does not constitute a defense to a medical challenge to a practitioner’s competency.
The proffered legal evidence was not relevant or material to the medical competency at issue in the peer review undertaken by medical professionals. Instead, legal issues such as discrimination and retaliation are best left to another forum focused on legal questions, such as the arbitration proceeding that addressed these issues in Berrones’s case. Thus, the hearing officer properly excluded this evidence and the trial court erred in concluding that she should have admitted it. In light of our conclusions, the trial court judgment granting Berrones a writ of administrative mandate must be reversed. Permanente is entitled to a judgment denying the petition for writ of administrative mandate.
Permanente also contends that Berrones is not entitled to a court order directing it to change its reporting the National Practitioner Data Bank. This dispute centers on each parties’ interpretation of the trial court’s writ of administrative mandate. Our reversal of the judgment and the trial court’s writ renders this issue moot. (See Keefer v. Keefer (1939) 31 Cal.App.2d 335, 337; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 326, p. 375.)
VI. REMITTITUR
The judgment is reversed. The matter is remanded to the trial court, which shall vacate its earlier writ of administrative mandate and enter a new judgment denying the petition for writ of administrative mandate.
We concur: Sepulveda, J., Rivera, J.