2013-00151376-CU-BT

James O’Dorisio vs. Sutter West Bay Hospitals

Nature of Proceeding: Motion for Preliminary Injunction

Filed By: Schear, Stephen D.

Plaintiff James O’Dorisio, M.D.’s Motion for Preliminary Injunction is DENIED. C.C.P.,
sec. 526(a)

Plaintiff seeks a preliminary injunction requiring defendants to reinstate him to his
medical staff membership and hospital privileges at the Sutter Medical Center of Santa
Rosa (“Sutter Santa Rosa”) unless and until he has been provided a medical staff
hearing that provides him with a fair procedure and due process to contest the
termination. Plaintiff Dr. is a thoracic surgeon, who obtained privileges at Sutter Santa Rosa in
2007. He was required to reapply every two years.

Plaintiff allowed his privileges at Sutter Santa Rosa to lapse by submitting an
application for reappointment over two months late, depriving Sutter’s Medical Staff of
the five months needed to process the application and present it for all necessary
approvals. Due to his own delay, Plaintiff’s privileges expired at the end of his
appointment term by automatic operation of the Sutter Santa Rosa Bylaws.

Where the preliminary injunction mandates an affirmative act that changes the status
quo, it is scrutinized even more closely for abuse of discretion. A preliminary
mandatory injunction is rarely granted. The granting of a mandatory injunction pending
trial is not permitted except in extreme cases where the right thereto is clearly
established. Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal. App. 4th 1487,
1493. Because plaintiff’s privileges lapsed over six months ago, he is not seeking to
preserve the status quo, but rather to obtain a mandatory injunction requiring the
hospital to take affirmative steps fundamentally changing the parties’ positions.

California law limits medical staff appointments to no more than two years. Bus. &
Prof Code, sec. 2282(a); 22 C.C.R. 70701 (a) (7).

The process by which physicians apply for initial appointment and reappointment to
Sutter Santa Rosa is set forth in Article IV of the Sutter Bylaws.

The reappointment process is described in Article IV, §4.7 of the Bylaws. It requires
the Medical Staff Office to verify all information on the recredentialing form and secure
updated information from all listed entities, a process that typically takes 30 to 60 days.
Since appointment terms cannot extend beyond two years, the reappointment
application must be submitted sufficiently in advance of the end of the member’s term
to allow the Medical Staff Office to verify all credentials and gather all supporting
documents, and for the completed application to be considered by the department
chair, Credentials Committee, Medical Executive Committee, and the Governing Body
before the current term ends.

Here, On October 2, 2012, six months before Plaintiff’s term of appointment ended on
March 31, 2013, the Medical Staff Office sent him a prepopulated recredentialing form.
The instructions on the form stated: “Please review, mark any changes/additions,
complete any blank areas, sign and return to Medical Staff Services in the enclosed
return envelope. DEADLINE FOR SUBMISSION IS November 1, 2012.”

Plaintiff missed the November 1, 2012 deadline and, despite two written reminders, he
did not submit his application until January 14, 2013; two and one-half months late.
(Duarte Dec., paras. 17-20, Exh. 3, 4, 6.) This delay made it impossible for the Medical
Staff Office to perform its verification functions and assemble a completed application
for the department chair’s review before the Credentials Committee met on January
22, 2013. If the application was not considered at that meeting, it could not be
reviewed by the other required committees before March 31, 2013. (Duarte Dec., para.
19.)

The consequences for failing to timely submit a reappointment application are set forth
in Article IV, §4, 7-4, entitled “Failure to File Reappointment Application”:
“Failure without good cause to file, on or before the date specified by the Medical Staff
Office, a completed application for reappointment shall result in the automatic
suspension of the member’s admitting privileges. Such failure shall also result in
expiration of other practice Privileges and prerogatives at the end of the current staff
appointment period. Failure to submit a completed application for reappointment with
all supporting or requested documentation by the expiration of the current appointment
period shall result in the automatic termination of the member’s medical staff
membership and Clinical Privileges. In the event membership terminates for the
reasons set forth herein, this will not be considered an adverse decision regarding
reappointment, the procedures set forth in Article VII shall not apply. A Member who
requests, reappointment to the Medical Staff within sixty (60) days following an
automatic termination under this Section shall not be required to complete a new
application form.”

Plaintiff’s privileges expired and his Sutter Santa Rosa Medical Staff membership and
privileges automatically terminated on March 31, 2013 at the end of his appointment
term. (Duarte Dec., paras. 25-26.) Automatic termination of Plaintiff’s privileges was
not an “adverse decision regarding reappointment” under the bylaws; therefore Plaintiff
was not offered a hearing when his membership and privileges lapsed. (Duarte Dec.,
paras. 28-29.)

Despite the late submission of his application, the Medical Executive Committee
reviewed and, ultimately, recommended its denial. Plaintiff requested a hearing and
preparations for that hearing are underway. (Duarte Dec., para. 30.)

On September 16, 2013, Plaintiff submitted a formal challenge to the lawfulness of
§4.7-4 of the Bylaws. (Schear Dec., para. 2, Ex. C.) On October 17, 2013, Sutter
Santa Rosa’s Governing Body agreed to consider that challenge. That proceeding is
now pending. (Zarbock Dec., para. 2, Ex. A.)

Plaintiff Has Failed to Exhaust His Administrative Remedies

When the only issue being challenged is whether a Bylaw, Rule or policy is lawful or
meritorious, the member “must submit his or her challenges first to the Governing
Body and only thereafter may he or she seek judicial intervention.” Bylaws. Section 7.1
-2. Plaintiff has submitted the same question to this Court that he presented to the
hospital’s Governing Body-the legality of the automatic termination provision §4.7-4.
The Governing Body has agreed to a hearing on that challenge.

Because a physician must exhaust internal remedies before seeking judicial
intervention (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465,
469), Plaintiff’s motion and complaint are premature.

Legal Standard for Mandatory Injunction

To prevail on a motion for preliminary injunction, plaintiffs must show: (1) that there is a
reasonable probability that plaintiff will prevail on the merits, (2) that plaintiff is likely to
suffer irreparable injury from the denial of the injunction, and that (3) pecuniary
compensation will not afford adequate relief. C.C.P. section 526.

The “general rule is that an injunction is prohibitory if it requires a person to refrain
from a particular act and mandatory if it compels performance of an affirmative act that
changes the position of the parties.” Davenport v. Blue Cross of California (1997) 52
Cal.App.4th 435, 446.)

Here, where plaintiff lost his privileges at Sutter Santa Rosa on April 1, 2013 and
seeks a Court order of reinstatement seven months later, the preliminary injunction
requested is mandatory, not prohibitory, as it alters the status quo. As noted,
mandatory injunctions, such as requested here, are “rarely granted” and only in
“extreme cases where the right thereto is clearly established.” Shoemaker v. County of
Los Angeles (1995) 37 Cal.App.4th 618, 625.

Plaintiff Failed to Demonstrate a Reasonable Probability of Success

Plaintiff’s Medical Staff membership and privileges expired on March 31, 2013 by
operation of the Bylaws.

Plaintiff concedes that he submitted his application on January 14, 2013-months after
st
the initial due date of Nov. 1 and two days after the final deadline. As of March 31,
2013, the reappointment application remained incomplete. No action by the Medical
Executive Committee was required or taken to terminate Plaintiff’s privileges.
Consistent with the §4.7-2, they expired automatically.

Plaintiff’s reliance on Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109
Cal.App.3d 242, 251 is distinguishable. In Volpicelli, the hospital Medical Executive
Committee affirmatively acted to “delete” plaintiff physician’s privileges without
affording him a hearing, even though the bylaws entitled him to a hearing. Here,
plaintiff’s privileges expired automatically, by operation of the By Laws, not by an
adverse action of the Medical Executive Committee.

Section 4.7-4 of the Bylaws provides that members whose privileges expire because
they submit a reappointment application late are not entitled to a hearing.

Plaintiff had no right to a hearing under common law because the expiration of his
privileges is a quasi-legislative act. A quasi-legislative action is one of “general
application intended to address an administrative problem as a whole and not directed
at specific individuals,” whereas an adjudicatory action is one directed at particular
physicians. Major v. Memorial Hospitals Assn. (1999) 71 Cal.App.4th 1380, 1398,
1403.

Here, Bylaw §4.7-4, applies to all Medical Staff members. The privileges of any
member who submits an untimely reappointment application are subject to expiration
and automatic termination. By providing for automatic termination of privileges at the
end of a term of appointment, §4.7-4 ensures the hospital complies with the legal
requirement that appointments not exceed two years even if the member submits an
application late.

Plaintiff had no right to a pre-termination hearing where expiration of his privileges did
not trigger Bus. & Prof. Code, sec. 809.1. Section 809.1 provides that a “licentiate who
is the subject of a final proposed action of a peer review body for which a report is
required to be filed under Section 805 shall be entitled to written notice,” including “the
right to request a hearing on the final proposed action.” §809.1(a), (b) (3) An adverse
action against a physician must be reported to the Medical Board of California under §805 if the action is taken by a peer review body for a “medical disciplinary cause or
reason,” which is “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.”
Bus. & Prof. Code, sec. 805(a) (6), (b), (c).

Here, plaintiff concedes that the expiration and automatic termination of his privileges
were not reportable to the Medical Board under §805 because they were not based on
a medical disciplinary cause or reason and, further, the automatic termination of his
privileges is not governed by Bus. & Prof. Code, sec. 809. Thus, he has not clearly
established his right to a pre-termination hearing.

The Balance of Equities Weighs Heavily in Favor of Sutter Santa Rosa

The harms to Sutter Santa Rosa if the mandatory preliminary injunction were to issue
are:

1. Sutter Santa Rosa would be in violation of state law, its Bylaws, and accreditation
standards prohibiting reappointment terms beyond two years.

2. Sutter Santa Rosa’s ability to assure only qualified physicians practice at the
hospital would be impeded by having to reinstate the privileges of Plaintiff, a physician
whom its Medical Executive Committee concluded, on separate grounds in July 2013,
is unqualified for membership and privileges based in part on lack of truthfulness,
significant documentation deficiencies, and clinical care issues. This alone could
jeopardize patient care.

3. Sutter Santa Rosa would lose its ability to enforce the Bylaws provisions requiring
timely submission of reappointment applications, resulting in major disruption to the
orderly functioning of the recredentialing process.

4. If Sutter Santa Rosa cannot enforce such deadlines, its ability to identify and act on
concerns about members’ competence or conduct will be delayed. In turn, its ability to
protect patients would be compromised.

Plaintiff’s harm is to the practice of his profession. As of March, 2013, Sutter Santa
Rosa was the only Santa Rosa hospital where he had privileges, and he performed
more than 90 per cent of his operations there. As a surgeon, Dr. O’Dorisio must
operate often enough to be able to maintain and demonstrate his current competence.
Monetary damages cannot compensate for the ongoing damage to Dr. O’Dorisio’s
career.

The Court finds that the damages to be suffered by each party weigh heavily, but since
the Court finds that Plaintiff has failed to meet the heightened standard for a
mandatory injunction as this is not an extreme case where the right thereto is clearly
established, the motion for preliminary injunction is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.