The opinion
Filed 3/29/24; Certified for Publication 4/25/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RYAN KIME,
Plaintiff and Appellant,
A166748
v.
DIGNITY HEALTH, INC., (San Francisco County
Super. Ct. No. CGC20586388)
Defendant and Respondent.
Dr. Ryan Kime was the subject of a disciplinary proceeding by the
Medical Board of California, which resulted in a public reprimand. While
that proceeding was ongoing, Kime applied for privileges in the emergency
department of two hospitals owned by Dignity Health, Inc. (Dignity). The
hospitals stopped processing Kime’s application a few days after the effective
date of the reprimand, and Kime subsequently sued Dignity for injunctive
relief and damages, alleging that Dignity violated his common law and
statutory rights by denying his application without offering him a hearing.
Dignity moved for summary judgment, or in the alternative, summary
adjudication, arguing among other things that it had established a policy that
it would not consider applicants with disciplinary histories for emergency
department privileges, and that no hearing is required when privileges are
denied because of the implementation of such a policy. Simultaneously, Kime
1
moved for summary adjudication on the issue of Dignity’s duty to provide
notice and a hearing after denying his application.
The trial court granted Dignity’s motion for summary judgment and
denied as moot Kime’s motion for summary adjudication. Kime now appeals
from the resulting judgment, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of this case are largely undisputed, although the
parties disagree as to their legal significance.
A. Kime’s Background as an Emergency Medicine Physician
Kime is an emergency medicine physician, whose medical staff
membership and privileges at St. Helena Clearlake Hospital (Clearlake
Hospital) were summarily suspended on August 7, 2015. In September 2015,
Clearlake Hospital filed a report pursuant to section 805 of the Business and
Professions Code (the 805 Report) informing the Medical Board of California
(Medical Board) that Kime had resigned his privileges while under
investigation for having been summarily suspended.1
Subsequently, in February 2017, the Medical Board filed an accusation
against Kime alleging that on August 7, 2015, after a forest fire caused a
power failure at Clearlake Hospital and Kime was informed that the hospital
1 The Business and Professions Code requires the filing of a report with
the Medical Board within 15 days of a physician resigning from staff
membership or privileges “after receiving notice of a pending investigation
initiated for a medical disciplinary cause or reason.” (Bus. & Prof. Code,
§ 805, subd. (c).) “ ‘Medical disciplinary cause or reason’ ” is defined to mean
“that aspect of a [physician’s] competence or professional conduct that is
reasonably likely to be detrimental to patient safety or to the delivery of
patient care.” (Id., subd. (a)(6).) The parties agree that Kime was summarily
suspended from the Clearlake Hospital medical staff for a medical
disciplinary cause or reason within the meaning of section 805.
2
would not go “on diversion,” Kime unilaterally diverted a patient who arrived
at the emergency room without a medical screening, failed to provide care for
other patients in the emergency department, and “flipped off” the remaining
emergency department staff at the end of his shift.
On January 26, 2018, Kime executed a stipulated settlement and
disciplinary order (settlement) to resolve the accusation, and the California
Attorney General endorsed the stipulation for consideration by the Medical
Board. Kime does not dispute that in the settlement he admitted that he
unilaterally diverted a patient without performing a medical screening and
that he made an “inappropriate gesture” to a nurse. The Medical Board
adopted the settlement on March 29, 2018, with an effective date of April 27,
2018.
After the incident at Clearlake Hospital, Kime contends he applied
unsuccessfully for hundreds of other positions, including as a member of the
medical staff at other hospitals.2
B. The Emergency Department Services Agreement at Dignity’s
Mercy Hospitals
Meanwhile, Dignity and Valley Emergency Physicians entered into an
Emergency Department Services Agreement (Agreement), effective December
1, 2017. Under the Agreement, Valley Emergency Physicians became the
exclusive provider of Emergency Department physician services for two
Dignity hospitals in Bakersfield: Mercy Hospital and Mercy Southwest
Hospital (collectively, Mercy). The Agreement refers to Valley Emergency
2 In a deposition, Kime testified, “Usually, in the screening process,
they ask for suspensions. So, obviously, I would answer honestly, and they
would say that would preclude you from this job is typically how it would go.”
3
Physicians as “Group,” and the physicians who provide Emergency
Department Services at Mercy as “Group Providers.”
The parties focus on section 3.13 of the Agreement (section 3.13), which
provides: “Group represents and warrants that, to the best of Group’s
knowledge, after reasonable investigation, except as set forth in Exhibit 3.13:
. . . (b) [no] Group Provider has ever been reprimanded, sanctioned or
disciplined by any licensing board, certifying authority or medical specialty
board; . . . (e) no Group Provider’s medical staff membership or clinical
privileges at any hospital or health care facility have ever been suspended,
limited or revoked for a medical disciplinary cause or reason.” Exhibit 3.13,
entitled “Exceptions to Representations and Warranties of Group,” says
“None.”
Dignity characterizes section 3.13 as establishing threshold “eligibility
requirements” under the Agreement, such that physicians whose privileges
have been suspended for a medical disciplinary cause are ineligible for
Emergency Department privileges, and Valley Emergency Physicians violates
the Agreement if it submits applications to Dignity for physicians with
certain disciplinary histories.
Kime, on the other hand, characterizes section 3.13 as establishing
“disclosure requirements” that merely require Valley Emergency Physicians
to inform Dignity of the existence of Group Providers’ disciplinary histories.
C. Kime’s Application for Appointment to Mercy’s Staff
On December 14, 2017, after the Medical Board’s accusation against
Kime had been filed, but before the settlement was executed and the
accusation was resolved, Valley Emergency Physicians offered Kime a
position as an emergency room physician at Mercy. The offer was
4
conditioned upon Kime successfully applying for and being appointed to the
Mercy medical staff and being granted clinical practice privileges at Mercy.
Mercy’s Medical Staff Bylaws require a candidate seeking appointment
to the medical staff to apply to Mercy’s medical staff office. Mercy’s medical
staff office would determine whether an applicant had submitted all required
materials, and Mercy’s credential verification office would verify their
authenticity. Once the required documentation was received and verified, an
application would be submitted to the credentials committee of Mercy’s
medical staff for consideration.
On February 9, 2018, Valley Emergency Physicians submitted Kime’s
application for staff privileges to Mercy.3 The application required Kime to
answer certain “attestation questions” and “provide full details” to explain
any “yes” answers. Kime answered “yes” to the question whether his staff
privileges had ever been suspended for “possible incompetence or improper
professional conduct, or breach of contract,” and to the question whether his
professional liability insurance had been terminated or denied, but he did not
provide the required written explanations.
In early March, a credentialing coordinator at Mercy wrote to Kime
requesting he provide explanations for the two “yes” answers. Supplemental
materials from Kime were received at Mercy’s medical staff office by April 20.
Those materials included explanations that referenced a public letter of
reprimand.4 On April 27, the manager of Mercy’s medical staff office learned
that the public reprimand of Kime had been published.
3 Subsequent dates are in 2018 unless otherwise stated.
4 In the supplemental materials, Kime referenced the accusation and
stated that the “Medical Board’s executive director has agreed to resolve its
[a]ccusation with a public letter of reprimand that mentions an inappropriate
gesture I made.” Kime did not disclose that the letter of reprimand also
5
Apparently, Kime’s application was scheduled to be submitted to
Mercy’s credentials committee in early May. But on April 30, Mercy’s chief
medical officer, Joseph Smith, gave instructions that Mercy should stop
processing Kime’s application, and the medical staff office manager informed
Valley Emergency Physicians of Smith’s instructions, stating that the
decision to stop processing the file “is based off of the multiple incidents of
unprofessional behavior, which has been discovered during the verification
process, along with the most recent Disciplinary Order and Public Reprimand
by the Medical Board of CA.”5 So, on April 30, Mercy stopped processing
Kime’s application, and the application was never sent to the credentialing
committee for review. Kime was not offered a hearing, and he never received
medical staff privileges at Mercy.
D. Proceedings in the Trial Court
Kime then sued Dignity, alleging that he should have been offered a
hearing and Dignity’s failure to do so violated his common law right to fair
procedure and his statutory procedural rights under provisions of the
states that after a “patient had come to the Emergency Department on a
gurney, and without performing a medical screening examination, [Kime]
advised the paramedics that the hospital was on diversionary status and
[Kime] directed that the patient be transported to another hospital.”
5 In his opening brief on appeal, Kime acknowledges that by
“unprofessional behavior” the office manager was referring to Kime’s
“ ‘abandon[ing] a patient,’ being summarily suspended, and making an
obscene gesture to another caregiver at Clearlake [Hospital],” all of which
were described in the 805 Report and subsequent settlement. Valley
Emergency Physicians did not attempt to persuade Mercy to overturn its
decision to stop processing Kime’s application. Instead, it withdrew Kime’s
application from consideration for medical staff privileges.
6
Business and Professions Code.6 He sought an injunction requiring Dignity
to grant his application for staff privileges, as well as compensatory and
punitive damages, attorney fees, and costs.
Dignity eventually moved for summary judgment or alternatively
summary adjudication. At the same time, Kime moved for summary
adjudication as to whether Dignity had the duty to provide him notice and a
hearing after denying his application. The trial court granted Dignity’s
motion, and took Kime’s motion off calendar as moot. Kime timely appealed.
DISCUSSION
We first address whether the trial court erred in granting Dignity’s
motion for summary judgment. Because we find no error, we do not reach the
merits of Kime’s motion for summary adjudication.
A. Applicable Law
California law recognizes a physician’s “common law right to fair
procedure where [a] hospital’s act significantly impairs the physician’s
practice of medicine.” (Economy v. Sutter East Bay Hospitals (2019) 31
Cal.App.5th 1147, 1156, 1157 (Economy).) The common law doctrine of fair
procedure “prevent[s] the arbitrary expulsion or exclusion of individuals from
private organizations that ‘possess substantial power either to thwart an
individual’s pursuit of a lawful trade or profession, or to control the terms
and conditions under which it is practiced.’ ” (Boermeester v. Carry (2023) 15
Cal.5th 72, 87-88.)
Common law fair procedure rights do not apply, and a physician has no
right to a hearing, if the physician’s privileges are denied or curtailed “as a
result of administrative/quasi-legislative decisions by the hospital, rather
6 All statutory references are to the Business and Professions Code
unless otherwise stated.
7
than adjudicatory/quasi-judicial decisions about a physician’s competency.”
(Economy, supra, 31 Cal.App.5th at p. 1160.) “A decision is considered quasi-
legislative if it is one of general application intended to address an
administrative problem as a whole and not directed at specific individuals.”
(Major v. Memorial Hospitals Assn. (1999) 71 Cal.App.4th 1380, 1398
(Major).) A quasi-legislative action is the result “of the implementation of a
‘policy’ of the hospital,” as opposed to an action “on the ground the physician
has not demonstrated an ability to comply with established standards.” (Hay
v. Scripps Memorial Hospital (1986) 183 Cal.App.3d 753, 756, 758 (Hay)
[upholding hospital’s policy decision to require a residency in obstetrics and
gynecology as a prerequisite to privileges to perform certain procedures].)
The common law right to fair procedure exists alongside a statutory
right set forth in the Business and Professions Code, which provides that a
physician “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” is entitled to
written notice of the final proposed action and the right to request a hearing.
(§ 809.1, subds. (a), (b).)
Under the statutory scheme, a hospital’s “medical or professional staff”
is a “peer review body.” (§ 805, subd. (a)(1)(B)(i); Health & Saf. Code, § 1250,
subd. (a).) A section 805 report must be filed if, as the result of an action of a
peer review body, a physician’s “application for staff privileges . . . is denied
or rejected for a medical disciplinary cause or reason.” (§ 805, subd. (b)(1).)
Our Supreme Court has explained the relationship between the
common law and statutory rights: “The Legislature . . . codified the common
law fair procedure doctrine in the hospital peer review context by enacting
Business and Professions Code sections 809 to 809.8 in 1989.” (El-Attar v.
Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 988.) The
8
legislation “established the minimum procedures that hospitals must employ
in certain peer review proceedings.” (Ibid.) The Supreme Court further
explained that “[t]he ‘primary purpose of the peer review process’ codified in
this legislation is ‘to protect the health and welfare of the people of California
by excluding through the peer review mechanism “those healing arts
practitioners who provide substandard care or who engage in professional
misconduct” ’ ” and that an additional purpose of the legislation is “ ‘to protect
competent practitioners from being barred from practice for arbitrary or
discriminatory reasons.’ ”7 (Ibid.)
B. Standard of Review
Our standard of review is well-established. “Summary judgment is
proper ‘if all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) The moving party has the
burden of persuasion that there is no triable issue of material fact and that
7 The day before oral argument was held in this matter, Dignity’s
counsel notified us of a case that had been published that same day: Asiryan
v. Medical Staff of Glendale Adventist Medical Center (Feb. 29, 2024) __
Cal.App.5th __, 2024 WL 1171035 (Asiryan). In Asiryan, the Court of Appeal
held that “[i]n the hospital peer review context, the common law of fair
procedure does not require additional protections beyond those in the
California peer review statute,” based on its conclusion that provisions in the
Business and Professions Code constitute “general and comprehensive
legislation, ‘ “indicat[ing] a legislative intent that the statute should totally
supersede and replace the common law dealing with the subject matter.” ’ ”
(Id. at *7-8, italics omitted.) At oral argument, the parties expressed their
views as to how Asiryan might apply to the facts of this case, but agreed that
all the briefing in this case, in the trial court and on appeal, assumed that
even in the context of hospital peer review, the common law right existed
alongside the statutory right. Accordingly, we do not further address the
holding of Asiryan. Assuming the common law of fair procedure applies in
this case, we find it was not violated.
9
the party is entitled to a judgment as a matter of law. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In ruling on the motion, the court
must draw all reasonable inferences from the evidence in the light most
favorable to the opposing party. (Id. at p. 843.) We review an order granting
summary judgment de novo.” (California Taxpayers Action Network v. Taber
Construction, Inc. (2019) 42 Cal.App.5th 824, 833.)
C. Analysis
In its motion for summary judgment, Dignity argued that under section
3.13 of its Agreement with Valley Emergency Physicians, Kime was not
eligible for emergency department privileges at Mercy because of his
disciplinary history. Dignity further argued that Kime was not entitled to a
hearing because the eligibility requirements set forth in the Agreement were
quasi-legislative and because the decision to stop processing Kime’s
application was not reportable to the Medical Board under section 805. Kime
argued that section 3.13 of the Agreement did not establish eligibility
requirements; instead, he argued, it “only addresse[d] whether [Valley
Emergency Physicians] had ‘knowledge’ of whether Group Physicians had
suffered from adverse actions,” and provided only that if Valley Physicians
had such knowledge and failed to disclose it, Dignity could terminate the
Agreement. Kime argued that he was entitled to a hearing under the
common law and the statute because the decision to exclude him was
“discretionary” and “quasi-judicial.”
1. The Agreement Establishes Eligibility Requirements.
Under section 3.13 of the Agreement, Valley Emergency Physicians
“represents and warrants”—that is, promises—that none of its Group
Providers “has ever been reprimanded . . . by any licensing board,” or had
staff privileges “suspended, limited or revoked for a medical disciplinary
10
cause or reason.” We conclude as a matter of contract interpretation that
these representations and warranties are eligibility requirements, and that
Kime’s undisputed history rendered him ineligible to be a Group Provider
and thus ineligible to provide emergency department services at Mercy under
the Agreement.
Kime’s argument that the representations and warranties establish
nothing more than disclosure requirements is unpersuasive. It rests on his
observation that the representations and warranties provide for the
possibility of exceptions as set forth in Exhibit 3.13, entitled “Exceptions to
Representations and Warranties of Group.” But the possibility of exceptions
is foreclosed by the language of the exhibit itself, which states, “None” in
boldface type.8
On appeal, Kime argues for the first time that the Agreement is
ambiguous. This argument has been forfeited and we do not address it.
(Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 273-274 [claim of
contract ambiguity forfeited by plaintiff’s failure to raise it in the trial court
in opposition to summary judgment].)
2. The Eligibility Requirements Are Quasi-Legislative.
There is no dispute that the Agreement establishing Valley Emergency
Physicians as the exclusive provider of Emergency Department physician
services for Mercy reflects Mercy’s decision to operate its Emergency
Department as a “closed” department. (See Mateo-Woodburn v. Fresno
Community Hospital & Medical Center (1990) 221 Cal.App.3d 1169, 1175
(Mateo-Woodburn) [hospital changed system of anesthesia services from
8 In 2022, the medical director of Valley Emergency Physicians testified
at deposition, in response to questions from Kime’s counsel, that no
exceptions had ever been made to the requirements of section 3.13.
11
rotating “ ‘open staff’ ” to “ ‘closed’ ” system in which hospital contracted with
an anesthesiologist to deliver services through arrangements with
subcontracting anesthesiologists].)
A hospital’s policy decision to close a department is a decision to a
adopt a general rule governing the operation of the hospital, and as such lies
within the hospital’s quasi-legislative authority. (Mateo-Woodburn, supra,
221 Cal.App.3d at p. 1183.) A quasi-legislative decision is “not directed
specifically toward the exclusion of particular physicians,” but is instead
“undertaken as a general effort to address an administrative problem.” (Id.
at p. 1184.) Courts view the contracting procedure by which a closed
department is effected as “an integral part of the quasi-legislative decision to
close the department.” (Id. at p. 1187.) And quasi-legislative actions by
hospitals are reviewed deferentially: courts will not interfere with the terms
of contracts governing the operation of closed departments “unless those
terms bear no rational relationship to the objects to be accomplished, i.e., if
they are substantially irrational or they illegally discriminate among . . .
doctors.” (Ibid.)
Here, the exclusive services Agreement between Dignity and Valley
Emergency Physicians recites that Mercy had determined that the contract
was “an appropriate and effective means to” accomplish several goals,
including facilitating the administration of the emergency department,
ensuring that emergency services were available seven days a week, 24 hours
a day, so as to “reduc[e] unnecessary delays in providing such services to
Hospital patients,” and “[r]educ[ing] disruptions in Hospital operations and
relations between Hospital administration and the Medical Staff and among
members of the Medical Staff.”
12
Dignity argues that the decision to enter the Agreement with Valley
Emergency Physicians was a quasi-legislative decision made to address
issues related to Mercy’s operation and administration, as evidenced by the
Agreement’s recitals, and that the eligibility requirements are quasi-
legislative because they are part of the Agreement and apply to all Valley
Emergency Physicians providers. (Major, supra, 71 Cal.App.4th at p. 1398;
Hay, supra, 183 Cal.App.3d at p. 759.)
Kime has not come forward with any evidence to the contrary, but in
his opening brief he asserts several arguments to support his claim that
Dignity failed to show that the Agreement imposed quasi-legislative
eligibility requirements applicable to Mercy’s emergency department. Only
two of these arguments are properly before us. The first is Kime’s argument
that no appellate court has held that a rule excluding a physician from
working at a hospital due to a disciplinary history is a quasi-legislative
policy. The argument is unpersuasive, because the mere fact that no court
has had occasion to determine this precise issue does not mean that the
adoption of such a rule is necessarily not quasi-legislative.
The second is his argument that it would be a violation of public policy
for a quasi-legislative rule to bar a physician from medical staff privileges
based solely on the physician’s disciplinary history because that would
contravene the Legislature’s “decision to codify physicians’ right to fair
procedures following the denial of privileges.” The statutory right to a
hearing, however, exists only when a decision on privileges is made by a peer
review body, and only when the decision is reportable to the Medical Board
because it is based on “ ‘[m]edical disciplinary cause or reason,’ ” defined as
an “aspect of a [physician’s] competence or professional conduct . . . is
reasonably likely to be detrimental to patient safety or to the delivery of
13
patient care.” (§ 805, subd. (a)(6); see § 809.1 [right to hearing to contest
decision or recommendation made by peer review body “after informal
investigatory activity or prehearing meetings” if a report must be filed under
section 805]; see § 805, subd. (b)(1) [report required if peer review body
rejects application for staff privileges “for a medical disciplinary cause or
reason”].)
Dignity’s decision to deny privileges to physicians with disciplinary
histories, however, does not require reports to the Medical Board under
section 805. The denial of Kime’s application did not result from any
“adjudicatory/quasi-judicial decisions” by Mercy “about [Kime’s] competency”
or professional conduct. (Economy, supra, 31 Cal.App.5th at p. 1160.) It
resulted from information about Kime’s suspension and the public reprimand
issued in connection with the already-adjudicated Clearlake Hospital
incident that Mercy discovered during its verification process. The fact that
Kime’s disciplinary history—that is, his suspension and reprimand, which led
Mercy to deny his application—arose from actions taken against Kime by
Clearlake Hospital for a “[m]edical disciplinary cause or reason” as defined in
section 805, subdivision (a)(6) does not mean that Mercy’s action was taken
for a “[m]edical disciplinary cause or reason” as defined in section 805.
Unlike Clearlake Hospital, Mercy never evaluated Kime’s competency
or conduct as it pertained to his suspension at Clearlake Hospital, or as it
pertained to patient care at Mercy. Moreover, the “basic purpose” for filing
section 805 reports, which is “to notify [the Medical Board] of events which
might warrant the investigation of a licensed physician” would not be served
by Mercy’s filing a report about its rejection of Kime’s application. (Dorn v.
Mendelzon (1987) 196 Cal.App.3d 933, 942; see also Stiger v. Flippin (2011)
201 Cal.App.4th 646, 656 [filing of section 805 reports is “essential to . . . the
14
[Medical] Board’s ability to carry out its ‘highest priority’ of exercising
disciplinary authority to protect the public from incompetent, impaired, or
unscrupulous physicians”].) A section 805 report must include “a description
of the facts and circumstances of the medical disciplinary cause or reason.”
(§ 805, subd. (f)(2).) The facts and circumstances of Kime’s actions at
Clearlake Hospital had already been reported to the Medical Board, and
Mercy had nothing to add about those actions. We fail to see what purpose
would be served by requiring Dignity, and all the other hospitals that may
have refused privileges to Kime because of the Clearlake Hospital
suspension, to file reports informing the Medical Board that Kime had been
denied privileges because of that suspension (which was the subject of the
805 Report) and the Medical Board’s subsequent reprimand. In short, Kime
has not persuaded us that public policy is violated by an eligibility
requirement that bars a physician from staff privileges because of the
physician’s disciplinary history.
Kime’s other arguments on this issue of whether the eligibility
requirements are quasi-legislative were not raised below, but are made the
first time on appeal. Kime argues that the requirements set forth in the
Agreement are not quasi-legislative because there is no evidence that the
hospital’s board approved them; because there is no evidence as to “why
[Dignity] supposedly banned physicians with disciplinary histories from
working at Mercy to address administrative problems”; because they are not
rules of general application to address administrative problems but instead
“target” a “disfavored group of physicians based upon their alleged
competence”; and because it is arbitrary and discriminatory to “ban all
physicians for merely having” disciplinary histories, which might be based on
reasons such as an illness affecting competence, failure to renew a fictitious
15
business permit, or pay taxes or pay child support. Because these arguments
were not raised in Kime’s opposition to Dignity’s motion below, they have
been forfeited and we need not, and do not, address them. (DiCola v. White
Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676-677
[arguments and theories not raised in the trial court in opposition to
summary judgment are forfeited, “including assertions as to deficiencies in
defendants’ evidence”]; see also Wisner v. Dignity Health (2022) 85
Cal.App.5th 35, 44-45 [appellate court need not consider argument raised for
the first time on appeal, even when argument presents questions of law on
undisputed facts].)
In opposing summary judgment in the trial court, Kime’s primary
response to Dignity’s claim that its eligibility requirements were quasi-
legislative was to argue that the denial of his application was “quasi-judicial”
because it was “clearly aimed at [him] individually.” He argued that because
the Agreement between Mercy and Valley Emergency Physicians “clearly
indicates [that] exceptions to the warranties would be made on a case-by-case
basis,” the decision to not make an exception in his case was “discretionary
decision-making [that] is judicial in character.” This argument rests on an
interpretation of the Agreement that we have rejected.
Kime also argued below that Dignity’s rule was not quasi-legislative
because it was “discretionary.” This argument rested on a false premise: a
hypothetical “broadly-worded warrant[y] regarding disciplinary history or
‘unprofessional behavior,’ ” which, Kime argued, would allow a hospital to
arbitrarily “bar one physician who had been allegedly ‘unprofessional,’ while
permitting another physician with such a history to be admitted.” But the
warranty at issue here says nothing about “unprofessional behavior.” To the
contrary, section 3.13 addresses only objective criteria: Has a physician’s
16
license to practice medicine been suspended? Has a physician ever been
reprimanded, sanctioned, or disciplined by any licensing board? Has a
physicians’ staff privileges at any hospital ever been suspended for a medical
disciplinary cause or reason? The application of the warranties here does not
require any discretionary determination. Just as the application of the
challenged policy in Hay (whether a physician had completed a residency in a
particular field) did not require the exercise of any discretion (Hay, supra,
183 Cal.App.3d at p. 756), so too here.
In sum, we conclude that Dignity met its burden to come forward with
evidence—in the form of its contract with Valley Emergency Physicians—that
the eligibility requirements are quasi-legislative. Kime, on the other hand,
has failed to come forward with evidence to create any triable issue of fact as
to the status of the requirements as quasi-legislative and has failed to show
that the eligibility requirements cannot be quasi-legislative as a matter of
law.
3. Kime Had No Right to a Hearing.
Kime also argues that even if the eligibility requirements are quasi-
legislative, he is entitled to a hearing, and Dignity is not entitled to summary
judgment because Dignity failed to prove that his application for privileges
was denied because he failed to meet the eligibility requirements. We are not
persuaded. As Kime admits, his application was denied because of the public
reprimand and the conduct that was the subject of the 805 Report filed by
Clearlake Hospital about Kime’s resignation while under investigation after
a summary suspension.
There is no genuine dispute that Kime—whose staff privileges at
Clearlake Hospital had been suspended for a “ ‘[m]edical disciplinary cause or
reason’ ” (§ 805, subd. (a)(6)), and who had been reprimanded by the Medical
17
Board, effective April 27, 2018—did not meet the quasi-legislative eligibility
requirements for providing emergency services at Mercy, as set forth in
section 3.13 of the Agreement. Because Kime did not meet those
requirements, he had no common law right to a hearing when Mercy stopped
processing his application for privileges.
Nor did Kime have any right to a hearing under section 809.1. Kime
argues that Mercy is a “peer review body” under section 805, subdivision
(a)(1)(B); that Mercy rejected his application because of his alleged conduct at
Clearlake, which, as shown by the existence of the 805 Report, qualified as a
“medical disciplinary cause or reason”; and that therefore Mercy rejected his
application for a medical disciplinary cause or reason, necessitating the filing
of an additional section 805 report. (See § 809.1, subds. (a), (b)(3) [right to
hearing for physician who is the subject of action by a peer review body for
which a section 805 report must be filed].) Dignity argues that no peer
review body acted on Kime’s application and that in any event the rejection
did not require the filing of a section 805 report because the rejection was
based on Kime’s failure to meet Mercy’s threshold eligibility requirements
(which apply generally to all emergency department physicians), rather than
particular concerns about Kime’s “competence or professional conduct that is
reasonably likely to be detrimental to patient safety or to the delivery of
patient care.” (§ 805, subd. (a)(6) [defining “ ‘[m]edical disciplinary cause or
reason’ ”].)
Regardless of whether the decision to stop processing his application,
effectively denying Kime’s application, was made by a peer review body (an
issue we need not reach), we conclude that the decision did not require the
filing of a report under section 805 for the reasons we outlined above in our
discussion of Kime’s argument that the eligibility requirement violated public
18
policy by undermining statutory hearing rights. Mercy’s action in denying
Kime’s application, which was based on Kime’s disciplinary history that
resulted from his conduct at a different hospital, did not require the filing of a
section 805 report.
We find it instructive to consider cases in which courts have found that
a physician was entitled to a hearing under section 809.1 because of action
taken for a medical disciplinary cause or reason: the facts of those cases are
unlike the facts here. (See, e.g., Alaama v. Presbyterian Intercommunity
Hospital, Inc. (2019) 40 Cal.App.5th 55, 66 [terminated physician’s “ ‘fail[ure]
to address the safety concerns and patient care needs expressed by . . . the
operating room staff,’ ” and “inhibiting the hospital staff from providing a bed
for a vomiting patient” is conduct that constitutes a “ ‘medical disciplinary
cause or reason’ ” under section 805 and triggers the section 805 reporting
requirement]; Economy, supra, 31 Cal.App.5th at pp. 1152, 1155, 1157
[anesthesiologist’s suspension and termination were based on a “medical
disciplinary cause or reason” under section 805 where plaintiff’s
documentation of pharmaceutical use at hospital was “ ‘completely
unacceptable for this doctor’ ” after extensive training and “hospital was ‘not
comfortable with the quality of care provided by [plaintiff] and cannot
approve anesthesia coverage schedules containing’ him”].) Kime does not cite
any cases in which an action like the one taken by Mercy, which was based
on his documented disciplinary history with Clearlake Hospital and the
Medical Board, gave rise to statutory hearing rights. Just as Kime had no
right to a hearing under the common law, he had no right to request a
hearing under section 809.1, subdivision (b).
DISPOSITION
The judgment is affirmed. Dignity shall recover its costs on appeal.
19
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Mayfield, J.*
A166748, Kime v. Dignity Health, Inc.
* Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
20
Filed 4/25/24 after unpublished opinion filed 3/29/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RYAN KIME,
Plaintiff and Appellant, A166748
v. (San Francisco County
DIGNITY HEALTH, INC., Super. Ct. No. CGC20586388)
ORDER GRANTING PUBLICATION
Defendant and Respondent.
BY THE COURT:
The opinion in the above-entitled matter filed on March 29, 2024, was
not certified for publication in the Official Reports. For good cause and
pursuant to California Rules of Court, rule 8.1105, it now appears that the
opinion should be published in the Official Reports, and it is so ordered.
Dated: ____________________ ______________________
Stewart, P.J.
1
Court: San Francisco County Superior Court
Trial Judge: Hon. Richard Ulmer, Jr.
The Brinegar Law Firm, Matthew A. Brinegar, for Plaintiff and Appellant
Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld, Joanna
S. McCallum, Craig S. Rutenberg, for Defendant and Respondent
Arentfox Schiff, Lowell C. Brown, Debra J. Albin-Riley, Annie C. Lee, M.H.
Joshua Chiu for California Hospital Association as Amicus Curiae on behalf
of Defendant and Respondent
A166748, Kime v. Dignity Health, Inc.
2