Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2008-00056611- CU-WM-NC Michael B. Orfield, Judge.
O'ROURKE, J.
Appellant Alberto Chavira, a medical doctor, appeals from a judgment denying his petition for writ of mandate (Code Civ. Proc., § 1094.5) to compel respondent, Palomar Medical Center's Medical Executive Committee (hereafter Palomar), to set aside its decision to deny him reinstatement of his staff privileges to perform interventional cardiac catheterizations at Palomar Medical Center. He contends the superior court's findings and judgment as to four specific charges (charge Nos. 4, 5, 6(C) and 6(D)) are not supported by substantial evidence. We affirm the judgment.
Palomar asserts it was incorrectly sued as Palomar Medical Center Medical Executive Committee and is properly referred to as Palomar Pomerado Health. We will simply refer to the respondent as Palomar.
FACTUAL AND PROCEDURAL BACKGROUND
Both parties' statement of facts on appeal are notable for the shortage of citations to the administrative record or clerk's transcript. Palomar's "Background" section is entirely devoid of record citations. These deficiencies would normally create serious difficulties in our review. However, Dr. Chavira's appeal is limited to the sufficiency of the evidence to support Palomar's decision to deny reinstatement of his interventional cardiac catheterization privileges, and, while he makes limited procedural arguments as to the specificity of some of the charges under the Palomar Medical Center Medical Staff Bylaws (Bylaws), he does not challenge the fairness of his hearing or the peer review process. Accordingly, we shall only briefly summarize the substantive and procedural facts - taken from unchallenged findings of the appellate decision of Palomar's Board of Directors (Board) and Dr. Chavira's verified writ petition. We set forth the specific evidence concerning the charges brought by Palomar's medical executive committee in connection with our discussion of the sufficiency of the evidence of the Board's decision.
Dr. Chavira is a cardiologist practicing in Escondido and also a member of the medical staff at Palomar. His practice included the performance of interventional cardiac catheterizations as well as diagnostic cardiac catheterization procedures. In November 2005, the Palomar medical executive committee voted to summarily suspend Dr. Chavira's interventional cardiac privileges after an ad hoc committee had recommended he be suspended based on concerns about his complication rates, technique and patient selection. Dr. Chavira responded by seeking a hearing before Palomar's Judicial Review Committee (JRC) and giving notice that he was taking a leave of absence. On November 22, 2005, Palomar's chief of staff rescinded Dr. Chavira's summary suspension, granted his request for leave of absence, and advised Dr. Chavira that the issues giving rise to his summary suspension would be considered among other relevant factors if he sought reinstatement.
In May 2006, Dr. Chavira sought reinstatement at Palomar. The medical executive committee reviewed the request and in June 2006 informed Dr. Chavira of its decision to deny reinstatement of his interventional cardiac catheterization privileges and condition the reinstatement of his diagnostic cardiac catheterization privileges on his obtaining appropriate interventional backup. Dr. Chavira asked the JRC to review this decision, and the medical executive committee served him with a notice of charges (and later amended notices) stating the reasons for its decision.
The operative amended notice contains seven charges. In part, it states the recommended decision to deny Dr. Chavira's request for interventional cardiology privileges was "based on a determination that your performance of interventional procedures was substandard in the following respects prior to your leave of absence:
The medical executive committee also identified the conclusions of an outside reviewer who raised concerns about the accuracy of Dr. Chavira's record keeping and had determined his practice of interventional cardiology was below the standard of care in the community. The medical executive committee's amended notice listed details of the circumstances involving four of Dr. Chavira's patients and the deficiencies in his treatment and record keeping. Finally, the medical executive committee's amended notice stated that on submitting his application for reinstatement, Dr. Chavira had "failed to indicate that any of the above concerns had been addressed during [his] leave of absence."
Thereafter, the JRC conducted an evidentiary hearing spanning 10 days over the course of several months, during which Dr. Chavira and the medical executive committee presented testimony from ten witnesses. In May 2007, the hearing officer issued the JRC's report, in which a majority of the JRC panel concluded that the evidence presented at the hearing demonstrated that the medical executive committee's recommendation to deny Dr. Chavira's interventional cardiac privileges was "reasonable and warranted."
Dr. Chavira appealed the JRC's decision to the Board, and he and the medical executive committee submitted briefing. In April 2008, the Board issued its appellate decision affirming the JRC's decision by a six-to-one vote. The Board pointed out Palomar's standard of care was reflected in part by section 8.1.1. of its Bylaws, which set forth "criteria for corrective action to be taken where reliable information indicates a Member may have exhibited acts, demeanor, or conduct, reasonably likely to be (a) detrimental to patient safety or to the delivery of quality patient care within [Palomar]; (b) unethical; (c) contrary to bylaws, rules and regulations of the Medical Staff; or (d) below applicable professional standards." It concluded Dr. Chavira did not demonstrate he was denied due process or a fair hearing and that substantial evidence in the hearing record supported the JRC's decision.
Under Palomar's Bylaws, the grounds for appeal to the Board are "(a) substantial failure of the [JRC], Executive Committee, or Board of Directors to comply with the procedures required by [the Bylaws] in the conduct of the hearing so as to deny due process and a fair hearing; [and] [¶] (b) action taken arbitrarily, capriciously or without substantial evidence of support." (Bylaws, art. IX, § 9.5.2.)
In July 2008, Dr. Chavira petitioned the superior court for a writ of mandate seeking to compel Palomar to void its decision to deny his application for reinstatement on grounds it was not supported by substantial evidence. He filed a motion in support of his petition in which he asserted the JRC's decision was not based on a "preponderance of evidence" and its "findings were not supported by the weight of the evidence presented." Palomar opposed the motion, and the parties orally argued the matter in March 2009.
In April 2009, the trial court denied Dr. Chavira's writ petition. It ruled charge Nos. 4, 5, 6(C) and 6(D) were supported by substantial evidence, and that the evidence established that Dr. Chavira's conduct was detrimental to patient safety, detrimental to the delivery of quality patient care, and/or below applicable professional standards. The trial court ruled it could not find charge Nos. 1 through 3, 6(A), 6(B), and 7 provided grounds for determining that Petitioner's conduct was detrimental to patient safety or below the standard of care to warrant denial of reinstatement. It ruled the evidence in connection with the other charges was sufficient by itself to support the Board's decision to deny Dr. Chavira reinstatement of his privileges, and entered judgment in Palomar's favor. Dr. Chavira filed the present appeal.
DISCUSSION
I. Palomar's Motion to Strike Portions of Opening Brief
Palomar has moved under California Rules of Court, rules 8.204(a)(1)(C) and 8.204(e)(2)(C) to strike a portion of Dr. Chavira's opening brief in which Dr. Chavira discusses a Medical Board of California hearing resulting in an assertedly favorable outcome to him. Palomar argues the Medical Board proceeding did not involve the same witnesses, facts, experts, or attorneys; it was not a party to that proceeding; and the decision is not part of the administrative record giving rise to the present appeal. It further argues Dr. Chavira has failed to provide record citations or other evidence, and has not lodged the decision with this court.
As we read California Rules of Court, rule 8.204(e)(2)(C), it gives this court discretion to disregard a party's noncompliance with the rules of court, that is, the discretion to consider the challenged portions regardless of their deficiency. (See Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 343 [noting court's discretion to disregard party's technical noncompliance under former California Rules of Court, rule 14(e)(2)(C)].) That is of no moment, since we strike section V of Dr. Chavira's brief on different grounds.
We agree Dr. Chavira's attempt to reference materials that were not before the administrative hearing warrants an order striking that portion of his brief. He does not assert a claim of agency misconduct (Cadiz Land Co., Inc. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 118), and he has not argued the evidence existed before the agency made its decision but it was impossible in the exercise of reasonable diligence to present it to the agency before it made its decision. (See Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 367; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576, 578; Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786, 792.) Thus, he has shown no grounds permitting us to consider his extra-record evidence.
II. Palomar's Challenge to the Trial Court's Ruling
Palomar challenges the trial court's findings as to charge Nos. 1 through 3, 6(A), 6(B), and 7. It contends the court erred and exceeded its authority by ruling that those charges did not provide grounds for determining that Dr. Chavira's conduct was detrimental to patient safety or below the standard of care.
We cannot consider Palomar's contention because it has not itself appealed from the judgment. The filing of a timely notice of appeal is a jurisdictional prerequisite to our consideration of these issues. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113; In re Jordan (1992) 4 Cal.4th 116, 121; see In re Marriage of Goddard (2004) 33 Cal.4th 49, 57, fn. 4.) " 'Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.' " (Silverbrand, at p. 113; Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1579, fn. 11 ["Compliance with the time for filing a notice of appeal is mandatory and jurisdictional"].) In short, we are without power to address Palomar's challenges to the portions of the trial court's ruling that are assertedly adverse to it.
Nevertheless, as we explain more fully below in connection with Dr. Chavira's sufficiency of the evidence challenge, our role is to determine whether there is substantial evidence supporting Board's appellate decision, and in turn, the JRC's findings of ultimate fact to uphold as "reasonable and warranted" the medical executive committee's recommendation to deny reinstatement of Dr. Chavira's interventional cardiology privileges. (See Smith v. Selma Community Hosp. (2008) 164 Cal.App.4th 1478, 1516 (Smith).) That review requires assessment of the entire record, not just the evidence purporting to support each charge in isolation. The fact the trial court disregarded certain charges in its reasoning does not prevent us from considering the entirety of the evidence in the administrative record to assess the JRC's findings.
III. Sufficiency of Notice of Charge Nos. 4 and 5
A. Charge No. 4
Dr. Chavira contends we should reverse the trial court's finding as to charge No. 4 on grounds that charge cannot serve as a basis to deny his reinstatement because it is not concise and does not state the specific acts or omissions which form the basis for the charge.
We reject Chavira's procedural contention based on a plain reading of Palomar's Bylaws. As to the notice of charges, the Bylaws provide in part: "The Executive Committee shall state in writing, in concise language, the acts or omissions with which the Member is charged, a list of charts under question, by chart number, or the reasons for the denial of the request of the applicant or Member. The Notice, where applicable, shall specify the acts or omissions and charts pertaining to the Surgery Center, as well as the reasons for any denial of a request pertaining to the Surgery Center. The Notice of charges shall accompany the Notice of hearing and, where applicable, shall be promptly provided to the Medical Director of the Surgery Center." (Bylaws, art. IX, § 9.2.4, subd. (a).)
As section 9.2.4. of the Bylaws provides, Dr. Chavira was entitled to a concise written description of the "acts or omissions with which [he was] charged, a list of charts under question, by chart number, or the reasons for the denial [of his application for reinstatement]." (Bylaws, art. IX, § 9.2.4, subd. (a), italics added.) The provision does not use the term "specific" and it is therefore not reasonably interpreted as requiring identification of specific acts and omissions as Dr. Chavira maintains.
Further, the "or" language in the Bylaws is disjunctive, indicating that a listing of acts and/or omissions and a listing of charts by chart number is not required as long as the notice states the reasons for the denial. (See Fiorentino v. City Of Fresno (2007) 150 Cal.App.4th 596, 603 ["The plain and ordinary meaning of the word 'or' is 'to mark an alternative such as "either this or that" ' "], quoting Houge v. Ford (1955) 44 Cal.2d 706, 712.) In accordance with the Bylaws, the amended notice described the acts or omissions with which Dr. Chavira was charged (in part by referring to ad hoc committee notes containing the specific observations of catheterization lab employees), and the "reasons for the denial" of his application. We find no basis to disturb the judgment based on Dr. Chavira's procedural attack on this charge.
B. Charge No. 5
We reach the same conclusion as to charge No. 5, which notified Dr. Chavira that one of the bases for the denial of his application for reinstatement was the fact he admitted in July 2005 that the "quality of his work had been declining over a number of months due to depression" and his November 2005 admission that he "had difficulty with a particular case due to chronic sleep deprivation." Again, the amended notice as to this charge identified the "acts... with which [he was] charged...." as well as "reasons for the denial" of Dr. Chavira's application for reinstatement. There is no procedural flaw as to the specificity of charge No. 5 or its compliance with Palomar's Bylaws.
IV. Sufficiency of the Evidence
A. Standard of Review
Under Palomar's Bylaws, the Board's proceedings "shall be in the nature of an appellate hearing based upon the record of hearing before the [JRC], provided that the Board..., committee of the Board..., or hearing officer may, in its or his discretion, accept additional oral or written evidence subject to the same rights of cross-examination or confrontation provided at the [JRC] hearing." Thus, the Board does not sit as a trier of fact, but instead determines whether the decision of the JRC is supported by substantial evidence. (Bode v. Los Angeles Metropolitan Medical Center (2009) 174 Cal.App.4th 1224, 1235-1236; Smith, supra, 164 Cal.App.4th at p. 1516; see Bylaws, art. IX, § 9.5.2.) Our review concerns whether the Board properly conducted its appellate review of the JRC's decision, which requires our independent review of the evidence before the JRC to decide if it constitutes substantial evidence in support of that committee's findings of ultimate fact. We then compare our conclusion with the conclusion reached by the Board to decide if the Board properly applied the substantial evidence rule. (Bode v. Los Angeles Metropolitan Medical Center, supra, 174 Cal.App.4th at p. 1236; Smith, supra, 164 Cal.App.4th at p. 1516.)
"Generally, '[t]he existence or nonexistence of substantial evidence is a question of law.' [Citation.] The same principle applies when findings of fact are made in an administrative proceeding. 'Whether substantial evidence exists to support the administrative decision is a question of law.' " (Smith, supra, 164 Cal.App.4th at pp. 1515-1516.) "Under the substantial evidence rule, 'the power of the appellate [body] begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, which supports the finding.' [Citation.] Evidence is 'substantial' for purposes of this standard of review if it is 'of "ponderable legal significance, " "reasonable in nature, credible, and of solid value." ' " (Id. at p. 1516.)
We do not review the actions or reasoning of the superior court, but conduct our own independent review of the administrative proceedings to determine whether the superior court ruled correctly as a matter of law. (Bode v. Los Angeles Metropolitan Medical Center, supra, 174 Cal.App.4th at p. 1236; Smith, supra, 164 Cal.App.4th at p. 1499; Hongsathavij v. Queen of Angles/Hollywood Presbyterian Medical Center (1998) 62 Cal.App.4th 1123, 1137 (Hongsathavij).) This court must uphold administrative findings unless they are so lacking in evidentiary support as to render them unreasonable. (Hongsathavij, at p. 1137.) We will not uphold findings based on irrelevant or inherently improbable evidence. (Ibid.)
Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish [the] material facts....' " (Smith, supra, 164 Cal.App.4th at p. 1510, fn. 17.)
Our inquiry is whether, viewing the entire record, substantial evidence supports the JRC's "findings of ultimate fact, " i.e., that the medical executive committee's decision to deny Dr. Chavira reinstatement of his privileges was "reasonable and warranted." (Accord, Smith, supra, 164 Cal.App.4th at p. 1516.) The JRC's decision necessarily requires for its basis a showing that an "aspect of [Dr. Chavira's] competence or conduct is reasonably likely to be detrimental to patient safety or to the delivery of patient care." (Bylaws, art. IX, § 9.1; see also Bus. & Prof. Code, § 805, subd. (a)(6) [defining " 'Medical disciplinary cause or reason' " as "that aspect of a licentiate's competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care"].) If substantial evidence supports the JRC's ultimate findings of fact, we must uphold the final decision of the Board (which reached the same conclusion as the JRC), and affirm the superior court's decision to deny Dr. Chavira's writ petition, regardless of the court's reasoning.
B. Substantial Evidence Supports the Board's Decision
Dr. Chavira's sufficiency of the evidence challenge, which he limits to charge Nos. 4, 5, 6(C) and 6(D), misapprehends the applicable standard of review. Relying on the theory that he may limit his appeal to a part of a judgment, he attacks each charge separately, isolating the evidence as to each. However, the authorities on which he relies are inapposite as they do not involve hospital peer review proceeding. The pertinent question is whether the final decision of the Board upholding the denial of his application for reinstatement is based on substantial evidence in the whole record. (See Code Civ. Proc., § 1094.5, subd. (d) ["in cases arising from private hospital boards... abuse of discretion is established if the [superior] court determines that the findings are not supported by substantial evidence in the light of the whole record"]; Medical Staff of Sharp Memorial Hospital v. Superior Court (2004) 121 Cal.App.4th 173, 183; Hongsathavij, supra, 62 Cal.App.4th at p. 1136.)
Dr. Chavira also points to the evidence supporting his positions and argues there is substantial evidence that he is not a danger to his patients, essentially asking us to take on the JRC's role and reweigh the evidence in his favor against that presented by the medical executive committee. As we have explained, this court cannot reweigh the evidence in conducting our review for substantial evidence.
Further Dr. Chavira criticizes the JRC's reliance on the testimony of two witnesses on grounds their testimony is speculative, not factual, and thus does not constitute substantial evidence. Specifically, he points to weaknesses in the testimony of Tiffany Chavez and Ginger McDonald, R.N., respectively the supervisor and a nurse in Palomar's catheterization laboratory, and argues their testimony does not qualify as expert testimony, but is "simply testimony of the witnesses [sic]perceptions and opinion, " rendering it "speculative." However, in the JRC proceeding, the admissibility of evidence is not determined by the rules of evidence in the Evidence Code, but under the test of whether it is relevant evidence of "the sort... on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law." (Bylaws, art. IX, § 9.3.7.)
In full, section 9.3.7 of the Bylaws, entitled Admissibility of Evidence, provides: "The hearing shall not be conducted according to rules of law relating to the examination of witnesses or presentation of evidence. Any relevant evidence shall be admitted by the presiding officer if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law. Each party shall have the right to submit a memorandum of points and authorities and the Judicial Review Committee may request such a memorandum to be filed following the close of the hearing. The Judicial Review Committee may interrogate witnesses or call additional witnesses if it deems it appropriate."
The Board's written decision indicates that it applied the substantial evidence standard of review to the JRC's underlying factual findings and accepted the JRC's conclusion. It determined the JRC's decision was "reasonable and warranted, " a finding it was authorized to make under the Bylaws. (Bylaws, art. IX, § 9.5.5 ["the Board... may affirm, modify, or reverse the decision of the [JRC], or, in its discretion, refer the matter for further review and recommendation"].) We must uphold the Board's decision as long as it is itself supported by substantial evidence.
Here, the JRC reviewed the testimony of several witnesses attesting to Dr. Chavira's quality of care and difficulties in conducting interventional catheterizations, and concluded, in a five-to-one vote, the medical executive committee's recommendation to deny reinstatement of Dr. Chavira's interventional cardiology privileges was reasonable and warranted.
Specifically, Dr. Robert Stein, the medical director of cardiovascular services at Palomar and the chairman of its cardiovascular peer review committee, testified that in the summer of 2005 he began receiving sporadic complaints from members of the catheterization lab concerning Dr. Chavira. These complaints concerned a number of things involving Dr. Chavira's judgment, timing and behavior, including the quality of his care, his recordkeeping, his handling of complications and inability to make up his mind about what to do in various situations. In part, catheterization lab employees had come to Dr. Stein complaining that they had asked Dr. Chavira to alter his technique as to his catheter management and tightening of a "Tuohy" device, which ensures a closed system preventing blood from actively dripping out and preventing air from entering the coronary artery. According to Dr. Stein, the employees felt it was problematic that Dr. Chavira would not tighten the device so that blood would run out of the site of catheter entrance into the plastic sleeve, causing excessive blood loss.
Tiffany Chavez, the supervisor of Palomar's catheterization lab and a registered cardiovascular invasive specialist, assisted all of the cardiologists at Palomar's catheterization lab. In doing so, she would physically stand next to the doctors, allowing her to personally observe their work. She worked with Dr. Chavira in well over 50 cases in 2004 and 2005 and did the majority of scrubbing with him. Chavez testified that she and other members of the lab saw that Dr. Chavira's decision-making was "impaired, somewhat suppressed" and the other departmental staff would have to "step up" as a result. According to Chavez, Dr. Chavira was slow to make decisions at the beginning of the intervention about balloons, catheters, and how to proceed. Dr. Chavira would tell her he could "not chew bubble gum and talk at the same time in preparation for intervention" so the procedure would slow down while she waited question by question for his answer before she could follow through with what he needed to proceed. Chavez recounted times where staff would compensate for Dr. Chavira's slow pace, and she felt she had to "nudge" him along. She expressed her concerns to him about the fact she was putting herself in a new role, but Dr. Chavira's responses indicated to her that without her assistance he felt he was not a "whole cardiologist"; that he and she were essentially "one" and he wanted her to improve her skills so he would be a better cardiologist with better outcomes.
Chavez testified that Dr. Chavira was unable to make quick decisions in the event of an emergency or urgent situation. She stated such a skill was important because staff looked to the cardiologist to make a quick and precise decision to allow them to follow through and improve quality of care to that patient. In her opinion, delays "definitely" put patients at risk. Dr. Chavira admitted to her that he would "freeze up" in emergency situations and could not make prompt decisions. He would later thank her for stepping in during an emergency and helping him. According to Chavez, the problems with Dr. Chavira's decision-making abilities were chronic, not isolated. She never had to assume the same role with other cardiologists.
Chavez expressed particular concerns with Dr. Chavira's handling of the Touhy device. She explained that when the device is not handled properly, adverse events could occur such as air embolisms or blood dripping out of the patient, covering the towels and the sterile drape. She noticed that in Dr. Chavira's case, the drape would be saturated with blood so that it no longer could support the blood's absorbency, allowing the blood to drip off. She explained that a catheterization is a "clean" procedure, and so while there would be some blood loss with changing of catheters and opening up the Touhy to insert a catheter, it was not normal to see the degree of blood dripping off the drape. According to Chavez, other cardiologists did not leave their Touhys open during their procedures. She stated she literally had to reach over to close the Touhy device, telling Dr. Chavira that he needed to close it or risk losing wire placement.
Chavez also observed problems with Dr. Chavira's wire placement. Specifically, she saw problems "pretty frequent[ly]" with wire placements occurring when the Touhy was not tightly closed, where the system would result in a perforation or dissection of the blood vessel. She felt that Dr. Chavira's procedures had more complications because of his technique and because his procedures took significantly longer than other cardiologists. During 2004 and 2005, Dr. Chavira appeared extremely exhausted and tired, his eyes were bloodshot, and he would appear disoriented during cases. She was concerned he was not fit to perform cases at times. When she talked to him about situations occurring with his cases, he admitted that mistakes were occurring. Working with him caused her stress, and she was concerned for the safety of his patients. Other members of the catheterization lab expressed to her that they were afraid to work with him. Based on her years of experience working with Dr. Chavira, Chavez felt he was a danger to his patients; she was significantly more concerned about Dr. Chavira's practices than those of other cardiologists.
Ginger McDonald is a registered nurse who has worked in the cardiac catheterization lab for approximately twenty years. She has assisted in over 22, 000 cases, working within three feet of the cardiologist. McDonald worked with Dr. Chavira in 2004 and 2005 on about half of his cases. She reviewed the patient charts and prepared a document comparing all of the cardiologists for a six-month time period indicating that Dr. Chavira had nine patients who needed blood transfusions during that time. She personally worked on three of those cases and testified Dr. Chavira's techniques during the procedures caused the excessive blood loss.
The JRC ultimately concluded that two of the nine cases did not involve excessive bleeding as a result of catheterizations performed by Dr. Chavira. However, as to the remaining seven charges, it found the evidence fully supported the criticism that Dr. Chavira's "technique, technical abilities, and/or medical judgment results in excessive blood loss during catheterization procedures...." The JRC "found unanimously that the evidence presented establishes that significant deficiencies exist in Dr. Chavira's technique resulting in recurrent and excessive blood loss in his patients" and that his patients "recurrently experienced substantial blood loss during catheterization procedures."
In particular, McDonald recounted that in one case, Dr. Chavira unsuccessfully attempted to introduce a catheter into the right coronary artery and then left coronary artery, eventually resulting in an iliac dissection and a large hematoma. In another case, she was able to observe how much blood was lost at the table, and recalled Dr. Chavira had a towel spread on the patient's leg and went through "many, many towels, " which became "very saturated" on the table. She testified his technique during the procedure caused the blood loss.
McDonald also observed problems with Dr. Chavira's decision-making in that he was unsure about what he was doing and would ask Chavez for directions. He had difficulty doing more than one thing at a time, and had longer case times than the other cardiologists. This was problematic because it would lead to increased exposure to radiation. She personally saw two air embolisms in Dr. Chavira's cases as a result of his leaving the Touhy device open. At that time, McDonald felt Dr. Chavira was a danger to patients, and working with him caused her definite stress. She testified that everyone in the catheterization lab expressed the same concerns.
Dr. Jerrold Glassman, who was then Scripps Mercy Hospital's Chief of Staff and Medical Director of its Department of Cardiology, was the interventional cardiologist who was asked to review several of Dr. Chavira's cases. He testified to the JRC that if the patients of a physician using a Touhy system are losing blood, the physician is doing something wrong. According to Dr. Glassman, apart from requiring transfusions, such misuse creates a danger to the physician, catheterization lab personnel and cleaning personnel. He testified that the worst thing one could do to a person who is already suffering from ischemic heart disease was make them anemic through blood loss.
In June 2005, Palomar's Chief of Staff at the time, Dr. James Otoshi, was called to urgently intervene in the cardiac catheterization lab in one of Dr. Chavira's cases. The catheterization lab staff expressed concern about Dr. Chavira's behavior and the safety of his patients, telling Dr. Otoshi that Dr. Chavira appeared to be impaired. Dr. Chavira told Dr. Otoshi he was under a lot of stress, was overworked in his own private practice and not getting enough sleep, which was affecting him and could have given the impression he was impaired. Dr. Otoshi stepped in to try to cancel the case, and then asked Dr. Chavira for blood and alcohol tests, which ultimately were negative, showing only that he was on a cold preparation containing pseudoephedrine. Dr. Otoshi also had Dr. Chavira undergo a psychiatric evaluation, which revealed problems with depression for which Dr. Chavira was being treated with medications. The psychiatrist, Dr. Kenneth Khoury, indicated he believed Dr. Chavira's prognosis was good and that he would improve with changes to his personal life.
After these problems arose, in July 2005, Drs. Stein and Otoshi met with Dr. Chavira to discuss a series of cases. Dr. Chavira acknowledged the quality of his work was different than it had been in previous years. He nevertheless stated his circumstances would improve with changes to his medication that he thought would improve his mood and functional state, and he intended to take time off so he would be less fatigued as he felt that fatigue and lack of sleep was related to some of these issues.
Dr. Stein, however, did not see any improvement in Dr. Chavira's work after this discussion. He found Dr. Chavira was not engaged in Palomar's quality improvement process in that he did not seem to want to respond specifically to the issues, and usually did not respond to notes sent to him.
In September 2005, Drs. Stein and Otoshi again met with Dr. Chavira. At the time, Dr. Stein and other catheterization lab employees felt there were ongoing problems with Dr. Chavira's work. At that meeting, Dr. Chavira agreed to relinquish his interventional cardiology privileges based on his own perception of the quality of his work in the prior months. Dr. Otoshi prepared a letter to that effect for Dr. Chavira to sign, however after the meeting he declined to do so, stating he had changed his mind and would not agree to reduce his privileges. At that point, Dr. Otoshi raised the issues with the medical executive committee, which initiated a formal investigation.
Dr. Glassman reviewed four of Dr. Chavira's cases. He issued a report summarizing his key criticisms of Dr. Chavira's performance. Dr. Glassman found a pattern of late dictations and discrepancies between dictation and actual events; failure to document important images with permanent recordings; aggressive sizing of the diameter and length of balloons; failure to have placement of the distal wire in safe, secure positions; failure to have objective documentation in the chart representing outside studies; performing stable cases at late hours; failure to recognize mitral regurgitation and ventricular defect on an LV gram; lack of confidence and comfort between the physician and the catheterization lab staff; and apparent high complication rates of unusual events. Dr. Glassman testified that after reviewing those cases, he concluded Dr. Chavira's technique, selection of cases and performance fell below the standard of care.
In particular, Dr. Glassman was concerned with the treatment of an 81-year-old patient who he testified had died as a result of a dissection of her left coronary artery, which Dr. Chavira had failed to document or record. He criticized Dr. Chavira's decision to take the patient to the catheterization lab late in the evening when she was "hemodynamically stable and pain free"; in his view, the risk of an octogenarian taken to surgery for such a high-risk procedure would have been too high. In his opinion, proper medical care for that patient would have been to delay the procedure and contact her regular physicians in the morning. Dr. Glassman explained that Dr. Chavira misinterpreted her condition, did not review an earlier performed echocardiogram so as to correctly understand her condition, and did not adequately visualize her coronaries or document the injection of the left main coronary artery to give the patient some chance of survival. He noted that after the patient's left main coronary artery was injected, her blood pressure fell precipitously. Dr. Chavira dictated his report on the matter six days after the procedure, and there were discrepancies between what had occurred and what he dictated. According to Dr. Glassman, Dr. Chavira's care and documentation was a "major deviation" from the standard of care. The JRC found that Dr. Chavira's care in this case fell below the minimum standard of care.
Dr. Stein ultimately testified that Dr. Chavira should not be practicing interventional cardiology. His opinion was based on the cases he had reviewed; he felt that allowing Dr. Chavira to continue this practice would place patients at risk for complications and bleeding stemming from the same quality of care issues.
Dr. Otoshi testified that after Dr. Chavira requested reinstatement in May or June of 2006, the credentials committee looked for some documentation from Dr. Chavira that his circumstances had changed; that he took courses or extra training to address the medical executive committee's concerns. Because Dr. Chavira did not submit anything like that, the committee decided to recommend to the committee to reinstate his privileges with the exception of his interventional privileges. Dr. Chavira asserted that he did not believe there was a problem with his interventional skills or any medical reason to restrict his privileges. He did not obtain any retraining in interventional cardiology during the six months from his summary suspension in November 2005 to the time he applied for reinstatement in May 2006.
The JRC found that Chavez's and McDonald's testimony, as well as Dr. Glassman's criticisms of Dr. Chavira's work in certain cases, supported the medical executive committee's recommendation to deny reinstatement of his interventional cardiology privileges. According to the JRC, the evidence demonstrated Dr. Chavira's performance in one case fell below the standard of care, his record keeping was far below the standard of care, his medical judgment was lacking, and he never indicated that any of the concerns raised in the proceedings had been addressed during his leave of absence when he applied for reinstatement. The evidence, particularly Dr. Stein's testimony, supported the JRC's implicit conclusion that his performance put patient safety at risk or was detrimental to patient care. Viewing the evidence in the light most favorable to the JRC's decision, the Board (1) agreed the evidence suggested Dr. Chavira's ability and judgment were materially deteriorating; (2) found the JRC had reasonably accepted the testimony of Drs. Stein and Otoshi as to Dr. Chavira's declining performance based on its credibility determinations; (3) observed the JRC found Dr. Glassman's testimony to be substantially more persuasive than Dr. Chavira's expert, whose contradictions it had rejected; (4) and found the JRC had a rational basis for concluding Dr. Chavira had not done anything to address the deficiencies in his interventional cardiology practice during his leave of absence. We conclude as a matter of law that the evidence in the administrative record recounted above, including that of Drs. Stein and Otoshi, constitutes reliable substantial evidence to support the JRC's findings, and consequently the Board's final administrative conclusion upholding those findings. We therefore affirm the trial court's judgment denying Dr. Chavira's petition for writ of mandate.
In his briefing, Dr. Chavira repeatedly attacks the weakness of the medical executive committee's evidence, claiming it is based on speculation and misconception, and he points out he presented contradictory evidence. For example, he maintains that neither Drs. Stein or Otoshi "can offer knowledgeable expert opinion on how well, or not well, controlled was Dr. Chavira's depression" and that they are "in no position to judge [his] state of mind based on a five to ten minute conversation on a subject in which they have neither the facts nor the knowledge to have an opinion." As to the issues raised concerning his admissions of stress and depression, he also argues "there is not one act or omission which is detrimental to patient safety or to the delivery of quality patient care within the hospital or is below the applicable professional standard stated in this charge." These arguments do not persuade us. As stated, it is not our role as the reviewing court to judge witness credibility or reweigh the evidence. And under the relaxed evidentiary standards for the JRC hearing, there was no requirement that Drs. Stein and Otoshi qualify as psychiatric experts. The evidence shows Drs. Stein and Otoshi's conversations with Dr. Chavira were prompted by personal observations by Chavez and McDonald, both very experienced catheterization lab employees. The testimony of Drs. Stein and Otoshi, in combination with Chavez's and McDonald's personal observations of Dr. Chavira's poor practices at that time, constitutes relevant and reliable evidence, and permits a reasonable inference that Dr. Chavira's personal circumstances negatively impacted his performance during critical medical procedures. Such evidence shows Dr. Chavira's practices were "reasonably likely to be detrimental to patient safety or to the delivery of patient care." (Bylaws, art. IX, § 9.1.)
In short, the fact Dr. Chavira presented contrary evidence to the JRC does not dilute the substantial reliable evidence, recounted above, supporting its findings that the medical executive committee's recommendation to deny Dr. Chavira reinstatement of his interventional cardiac catheterization privileges was reasonable and warranted.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.
[¶]... [¶]
"4. Observations by Cath Lab staff that your decision-making ability and judgment during cardiac catheterizations had significantly deteriorated. This caused them to report in late 2005 that you were a danger to patients. The specific observations of the cath lab employees are set forth in the minutes of the November 3, 2005 Ad Hoc Committee meeting.
"5. Your admission on July 14, 2005 that the quality of your work had been declining over a number of months due to depression. You subsequently acknowledged on November 8, 2005 that you had difficulty with a particular case due to chronic sleep deprivation. This raises concerns regarding your mental and physical ability to perform interventional procedures and your judgment in performing procedures when you are not fit to do so."