The California Court of Appeal has upheld a hospital board’s decision to deny staff privileges to a physician with a history of sexual harassment even though the facility’s judicial review committee had found in favor of the physician joining the staff.
In explaining a hospital board’s role in peer review matters, the court emphasized that while a board must give “great weight” to a judicial review committee’s factual findings, it is free to exercise its “independent judgment” to reject those findings that are not supported by substantial evidence.
The published opinion arises out of the denial of medical staff membership and surgical privileges to Michael Michalski, MD, at three Scripps Health hospitals. While his application was being reviewed by Scripps, Dr. Michalski was publicly reprimanded by the Medical Board of California for sexually harassing three employees at Sharp Grossmont Hospital in 2003. The interventional cardiologist lost his privileges at Sharp when that hospital’s board found in 2006 that his conduct “had a sufficient nexus to the quality of medical care in the Hospital to warrant termination of his privileges on that basis alone.”
When Dr. Michalski applied for privileges at three Scripps facilities in 2007, the medical executive committees at the three hospitals recommended against granting privileges. Dr. Michalski challenged those recommendations, prompting the formation of a Judicial Review Committee consisting of seven physician members. In preparing for the JRC hearing, the Scripps medical executive committee charged that Dr. Michalski’s behavioral conduct and sexual harassment failed the Scripps fitness standard.
The Scripps JRC began its hearing in August 2010 and after eight evidentiary sessions, issued its decision in May 2011. Despite finding that Dr. Michalski’s behavior at Sharp included “egregious acts of sexual harassment,” the JRC rejected the MEC’s recommendations to deny the physician’s application. The MEC appealed to the Scripps Health Board of Trustees and in January 2012, the Board reversed the JRC and confirmed the MEC’s recommendation to deny Dr. Michalski’s application. The board said it based its decision on the JRC’s factual findings and hearing record, Dr. Michalski’s written statements to the MECs, and on his oral statements to the board itself.
In challenging the board’s decision in the courts, Dr. Michalski contended that Scripps acted in bad faith in denying his application, that the board improperly applied an “independent judgment” standard of review, and failed to accord “great weight” to the JRC’s findings, and that the decision to reverse the JRC was not supported by evidence.
The Court of Appeal in Michael Michalski v. Scripps Mercy Hospital, began its analysis by noting that the Scripps bylaws specifically require the board to use its independent judgment in determining whether a judicial review committee’s decision is supported by the evidence. “Where permitted by a hospital’s bylaws, its governing body may, using its independent judgment, completely overturn the decision of a medical staffselected hearing committee.”
The Court of Appeal found that the Board of Trustees properly considered the JRC’s findings and had even adopted many of those findings as its own. In one example, the court showed that though the board agreed with the JRC’s finding that Dr. Michalski’s behavior was “aggressive, predatory, and reprehensible,” the trustees were free to disagree with the JRC’s conclusion about the significance of that finding. The court noted with approval the Board’s own conclusion that “such professional misconduct in the hospital environment creates a significant risk to the quality of patient care.”
In upholding Scripps’ privileges denial, the court put the duties of a hospital board in context: “The overriding goal of the statemandated peer review process is protection of the public, and while important, physicians’ due process rights are subordinate to the needs of public safety.”
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