Joint Appendix — Summit Health, Ltd. v. Pinhas

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

No. 89-1679

In the Supreme

United States

OcToBerR TERM, 1989

Summit Heautn, Lrp., Mipway Hosprra, Mepica.

CENTER, THE MepicaL Starr or Mipway Hosprra.

MepicaL CenTer, MITCHELL FELDMAN, AUGUST

Reaper, M.D., Antuur N. Lurvey, M D., Jonatuan I.

Macy, M.D., James J. Satz, MD. Gripert

PERLMAN, MD. Marx KaDZIgELSK! and

WEISSBURG AND ARONSON, INC.,

Petstioners,

vs.

Simon J. Pinnas, M. D.

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

PETITION FOR CERTIORARI FILED

APRIL 24, 1990

CERTIORARI GRANTED JUNE 18, 1990

Bowne of Lee Angeies ine Lew Prmters (113) 627 2000

TABLE OF CONTENTS

RELEVANT DOCKET ENTRIES

DEFENDANTS’ REPLY TO OPPOSITION TO

MOTION TO DISMISS; MEMORANDUM OF

POINTS AND AUTHORITIES IN SUPPORT

J.. ccc;

EX PARTE APPLICATION TO RECONSIDER

DEFENDANTS’ MOTION TO DISMISS, OR

IN THE ALTERNATIVE, TO VACATE OR.

DER DISMISSING CASE; REQUEST FOR

JUDICIAL NOTICE; PROPOSED ORDER

OPPOSITION TO EX PARTE APPLICATION

FOR RECONSIDERATION ................

267

...e

Petitioners designate Pinhas „ Summit Health,

Lid., et al., No. 87-6530 (9th Cir. 1990) to be a

part of this Appendix. This opinion has already

been printed at p. A-1 of the Petition for Certio-

rari im this case.

RELEVANT DOCKET ENTRIES

May 21, 1987 — Filed Complaint. Issued Summons.

July 13, 1987 — First Amended Complaint and Jury

Demand. Issued Summons.

October 7, 1987 — Order dismissing defendant State of

California Board of Medical Quality Assurance without

prejudice, pursuant to stipulation, entered.

October 7, 1987 — Ordered, adjudged and decreed that

plaintiff's complaint against Summit Health, Ltd., Mid-

way Hospital Medical Center, the Medical Staff of Mid-

way Hospital Medical Center, Mitchell Feldman, August

Reader, M.D., Arthur N. Lurvey, M.D., Richard E. Posell,

Jonathan I. Macy, M.D., James J. Salz, M.D., Gilbert

Perlman, M.D., Peggy Farber, Mark Kadzielski and

Weissburg and Aronson, Inc. is hereby dismissed without

leave to amend (entered October 9, 1987).

October 22, 1987 — Plaintiff filed notice of appeal to

Ninth Cireuit Court of Appeals from order entered Octo-

ber 9, 1987.

February 22, 1990 — Mandate from Ninth Circuit

Court of Appeals affirming in part and reversing in part

and remanding the judgment of the United “tates Dis-

triet Court.

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

NO. 8703292 FFF (GHKx)

Simon J. Pinnas, M. D.,

Plaintiff,

vs.

Summit HEALTH, Lro., a corporation; Mipway Hospt.

TAL MEDICAL CENTER, a California general hospital;

THE MEpDIcAL Srarr or Mipway Hospital MEDICAL

CENTER, an unincorporated association; MITCHELL

FELDMAN; AUGUST READER; ARTHUR N. LurRvey; RICH.

ARD E. PoskLlL, JONATHAN I. Macy; James J. Sauz;

GILBERT PERLMAN; PeGGy FARBER; MARK KADZIEL-

SKI; WEISSBURG AND ARONSON, INC; and STATE OF

CALIFORNIA BOARD OF MEDICAL QUALITY ASSURANCE,

Defendants.

FIRST AMENDED COMPLAINT FOR VIOLATION

OF CONSTITUTIONAL RIGHTS AND CIVIL

RIGHTS (42 U.S.C. § 1983 and § 1985(3)); DECLAR-

ATORY JUDGMENT AND TREBLE DAMAGES FOR

VIOLATION OF SECTION | OF THE SHERMAN

ANTI-TRUST ACT AND INJUNCTIVE RELIEF

DEMAND FOR JURY TRIAL

LAWRENCE SILVER, A LAW CORPORATION

LAWRENCE SILVER

9100 Wilshire Boulevard, Suite 3600

Beverly Hills, California 90212

Attorneys for Plaintiff

Simon J. Pinhas, M.D.

STATEMENT AS TO JURISDICTION

1. This civil action arises under the Constitution of the

United States and 42 U.S.C. § 1983, § 1985, and § 1988; 28

U.S.C. § 2201 and § 2202, and 15 U.S.C. 61.

2. This court has jurisdiction of the action under 28

U.S.C. § 1331, § 1337 and § 1343, and 15 U.S.C. §4 and

915.

3. The matter in controversy exceeds Ten Thousand

Dollars ($10,000), exclusive of interest and costs.

VENUE

4. Venue is proper pursuant to 28 U.S.C. 56 1391 and

1392.

PARTIES

5. Plaintiff, Simon J. Pinhas, M.D., (“Dr. Pinhas”) is

a physician and surgeon duly licensed by the defendant,

State of California, Board of Medical Quality Assurance

and has limited his practice to that of eye physician and

ophthalmological surgeon. Plaintiff presently, and at all

times stated herein, was a Board certified surgeon, having

been certified in 1982. Plaintiff has been engaged in the

practice of medicine and surgery since 1977 and as such

as engaged in interstate commerce. Until the grievances

hereinafter complained of, plaintiff was a member, in good

standing, of the defendant Medical Staff of Midway Hos-

pital. Plaintiff is a citizen of the United States and a

resident of the State of California and this judicial

district.

6. Defendant Summit Health Ltd. (“Summit Health")

is a corporation authorized to do business pursuant to the

laws of the State of California and is the parent of

Midway Hospital and Medical Center. Summit Health is

engaged in interstate commerce and owns and operates

approximately 19 hospitals and 49 nursing home facilities

in California, Arizona, Colorado, Oregon, Iowa, Washing-

ton, Texas and Saudi Arabia.

7. Defendant Midway Hospital Medical Center (Mid-

way Hospital“) is engaged in interstate commerce and is

a general hospital organized and existing pursuant to the

laws of the State of California and conducts its business

by providing medical facilities and medical care in Los

Angeles, California.

8. Defendant Medica! Staff of defendant Midway Hos-

pital (“Medical Staff’) is an unincorporated association

of physicians engaged in interstate -ommerce practicing

medicine at Midway Hospital with its principal place of

activity located at Los Angeles, California. Defendant

Medical Staff, in a conspiracy with other defendants, has

meneed and prosecuted an unjustified, illegal and uncon-

stitutional peer review proceeding (“Peer Review

Proceeding”) against plaintiff.

9. Mitchell Feldman (Mr. Feldman”) at all times

mentioned herein was the regional vice-president of de-

fendant Summit Health, a citizen of the State of Califor-

nia, and a resident of this judicial district, and he, along

with others yet unknown to the plaintiff, has caused,

directly or indirectly, the commencement and prosecution

of the Peer Review Proceeding against plaintiff in viola-

tion of plaintiff's rights.

10. Defendant August Reader, M.D. (Dr. Reader”)

is a physician and surgeon duly licensed by the defen-

dant, State of California, Board of Medical Quality As

surance and has limited his practice to th. of eye

11. Defendant Arthur Lurvey, M.D. (Dr. Lurvey”) is

a physician and surgeon duly licensed by the defendant,

State of California, Board of Medical Quality Assurance

and at all times mentioned herein was the Chief of Staff of

against plaintiff in violation of plaintiff's rights.

state commerce and was, an attorney at law, duly admit-

ted and practicing law in the State of California and is a

citizen of the United States, resident of the State of

California and a resident of this judicial district, and has

caused, directly or indirectly, the prosecution of the Peer

Review Pr 1 inet plaintiff in violation of plei

tiff's rights.

13. Defendant Jonathan I. Macy, M.D. (Dr. Macy”)

is a physician and surgeon duly licensed by the defen-

dant, State of California, Board of Medical Quality As-

surance and has limited his practice to that of eye

physician and ophthalmological surgeon and is in compe-

— — —

tition with plaintiff Dr. Pinhas. Dr Macy is engaged in

interstate commerce and is a member of the defendant

Medical Staff, a citizen of the State of California, and a

yet unknown to the plaintiff, has caused, directly or

indireetly, the commencement and prosecution of the

Peer Review Proceeding against plaintiff in violation of

plaintiff's rights.

14. Defendant James J. Salz, M.D. (“Dr. Salz”) is a

physician and surgeon duly licensed by the defendant,

State of California, Board of Medical Quality Assurance

and has limited his practice to that of eye physician and

ophthalmological surgeon and is in competition with

plaintiff Dr. Pinhas. Dr. Salz is engaged in interstate

commerce and is a member of the defendant Medical

Staff, a citizen of the State of California, and a resident of

known to the plaintiff, has caused, directly or indirectly,

the commencement and prosecution of the Peer Review

Proceeding against plaintiff in violation of plaintiff's

rights.

Medical Staff, a citizen of the State of California. and a

resident of this judicial district, has caused, directly or

indireetly, the commencement and prosecution of the

Peer Review Proceeding against plaintiff in violation of

plaintiff's rights.

——— ee e

. —

16. Defendant Peggy Farber (“Ms. Farber“) is em-

ployed by defendants Summit Heath and Midway Hospi-

tal in their Risk Management Section. At the direction of

her employers and others, she was charged with (a)

securing the information which was placed in the false

charges brought against Dr. Pinhas and (b) interfering

with Dr. Pinhas’ defense against those charges at the

Peer Review Proceedings. Ms. Farber is a citizen of the

State of California, and a resident of this judicial district.

17. Defendant Mark A. Kadzielski (“Mr. Kadzielski”)

is a principal of defendant Weissburg & Aronson Inc.,

and at all times herein mentioned was engaged in inter-

state commerce and was, an attorney at law, duly admit-

ted and practicing law in the State of California. Mr.

Kadzielski is a citizen of the State of California, and a

resident of this judicial district, and has caused, directly

or indirectly, the commencement and prosecution of the

Peer Review Proceeding against plaintiff in violation of

plaintiff's rights.

18. Defendant Weissburg & Aronson Inc. (“W&A”) is

engaged in interstate commerce and is a professional

corporation engaged in the practice of law in the State of

California and this judicial district, and has caused,

directly or indirectly, the commencement and prosecution

of the Peer Review Proceeding against plaintiff in viola-

tion of plaintiff's rights.

19. Defendant State of California, Board of Medical

Quality Assurance (“BMQA”) is an agency of the State

of California created by and existing pursuant to Busi-

ness and Professions Code, § 2000 et seq. Defendant

BMQA is charged with the responsibility of enforcing,

among others, Sections 805, 805.1 and 805.5 of the Cali-

fornia Business and Profession Code as well as Section

423 et. seq. of the Health Care Quality Improvements Act

of 1986, 42 U.S.C, § 11133, et. seq.

20. Relief is sought against each and all defendants,

as well as their agents, assistants, successors, employees,

attorneys, representatives and all persons acting in con-

cert or in cooperation with them or at their direction.

FACTUAL ALLEGATIONS

21. From October, 1981 through the present, plaintiff

Dr. Pinhas, a diplomat of the American Board of Ophthal-

mology, has been a member of the defendant Medical

Staff. As such, he has had the right to cause the admis-

sion of his patients to defendant Midway Hospital and to

use defendant Midway Hospital’s facilities for the care

aad treatment of his patients, including, but not limited

to, the facilities to perform eye surgery.

22. By reason of his training, experience and skill, Dr.

Pinhas holds a national and international reputation as a

specialist in corneal eye problems. He performs general

eye surgery and specifically cornea transplants, cataract

removal, and interocular lens replacements. Because of

his training, experience and skili, Dr. Pinhas is able to

perform these surgeries with a high level of success and

with few, if any, complications. One of the reasons for his

success is the rapidity with which he, as distinguished

from his competitiors, can perform such surgeries. The

speed with which such surgery can be completed benefits

the patient because the exposure of cut eye tissue is

drastically reduced. Some of Dr. Pinhas’ competitors

regularly require, on the average, six times the length of

surgical time to complete the same procedures as Dr.

Pinhas. Because of his reputation, skill and successes Dr.

Pinhas has performed more surgeries than any other

r eee ee ee ee ae

ophthalmic surgeon at Midway Hospital during the rele-

vant time period.

23. Prior to February, 1986, the common practice in

Los Angeles County was to have most eye surgeries,

especially cataract extractions, performed by a primary

surgeon and a second, assistant surgeon. This practice

required by the defendant Medical Staff, the (“assistant

surgeon requirement“), significantly increased the cost of

such eye surgeries.

24. In February 1986, the administrators of Medicare,

the federal health insurance program for the elderly,

determined that assistant surgeons were not necessary in

connection with the performance of such eye surgeries

and refused, henceforth, to provide reimbursement for the

charges of any such assistant.

25. Certain ophthalmic surgeons of staff at defendant —

Midway Hospital, including plaintiff Dr. Pinhas, re-

quested that the defendant Medical Staff modify its

assistant surgeon requirement. Nearly all hospitals in

Southern California, except defendant Midway Hospital

and Cedars-Sinai (whose Medical Staff overlaps with that

of defendant Midway Hospital), abolished the assistant

surgeon requirement at or about the time that Medicare

made its change. The request to eliminate the assistant

surgeon requirement at Midway Hospital was denied and

remains in effect at the time of the filing of this First

Amended Complaint.

26. The consequence of the failure to make the change

was that surgeons, such as the plaintiff, would have to

compensate their competitors to be their assistants dur-

ing surgery since Medicare would no longer compensate

such assistants. Plaintiff Dr. Pinhas advised the adminis-

tration of Midway Hospital that the additional costs to

him of the Medical Staff's refusal to eliminate the assis-

tant surgeon requirement would be about $60,000 per

year. Dr. Pinhas, expressing a desire to keep the bulk of

his practice at defendant Midway Hospital, nonetheless

stated that he would move his practice if the assistant

surgeon requirement was not abolished.

27. On or about January 26, 1987 defendants Summit

Health and Midway Hospital, seeking to resolve the

difficulty created by defendant Medical Staff's refusal to

abolish the assistant surgeon requirement and Medicare's

refusal to reimburse for assistant surgeons. Defendant

Summit Health and Midway Hospital offered a “sham”

contract to Dr. Pinhas, a true and correct copy of this

“sham” contract is attached hereto and made a part

hereof as Exhibit A“. The scheme provided by this

“sham” contract was to “hire” Dr. Pinhas for $36,000 per

year (later raised orally to $60,000 per year) to perform

certain services, except, Dr. Pinhas would never be called

upon to do such work. The “sham” contract was a vehicle

by which defendants Summit Heath and Midway Hospital

would pay Dr. Pinhas for continuing to bring patients to

Midway Hospital. When the “sham” contract was ex-

plained to Dr. Pinhas, he was told that many of the

members of the defendant Medical Staff had similar

contracts, and that the Chief of the defendant Medical

Staff, defendant Dr. Lurvey, was aware of this proposed

contract and the other “sham” contracts.

28. Dr. Pinhas refused to in anyway participate in

such a scheme, refused to sign the contract, and refused

to return the contract, even after defendant Dr. Lurvey,

acting on behalf of himself, defendant Summit Health,

defendant Mr. Feldman, defendant Midway Hospital and

defendant Medical Staff threatened that plaintiff's failure

to do so would cause a review of his charts and possible

—— = a ea ae

Peer Review Proceedings. Nevertheless, defendants Sum-

mit Health and Midway Hospital made one monthly

payment of $5000 to Dr. Pinhas. This payment was

“hidden” in a reimbursement check to Dr. Pinhas and was

promptly recorded by Dr. Pinhas as an overpayment and

a credit against the amount of defendants Midway Hospi-

tal and Summit Health otherwise owed Dr. Pinhas.

29. By letter dated April 13, 1987 (“April 13, 1987

letter“). and without prior notice or an opportunity for a

hearing, Dr. Pinhas was advised by defendants Summit

Health and Midway Hospital, through defendants

Dr. Lurvey and Mr. Feldman, that he was summarily

suspended as of that immediate date. As such, Dr. Pinhas

was deprived of all medical staff privileges, including the

right to admit his patients and to perform surgical proce-

dures. The April 13, 1987 letter stated that such action

was the result of a “medical staff review of Dr. Pinhas’ -

medical records, with consideration as to the questions

raised regarding: indications for surgery; appropriateness

of surgical procedures in light of patient's medical condi-

tion; adequacy of documentation in medical records; and

ongoing pattern of identified problems.” (A true and

correct copy of the April 13, 1987 letter is attached hereto

as Exhibit B“ and made a part hereof.)

30. By the same April 13, 1987 letter, Dr. Pinhas was

advised that the Midway Hospital Medical Executive

Committee (“Midway Executive Committee”) would con-

vene to review and consider the action within 10 days.

31. On April 20, 1987 the Midway Executive Commit-

tee met. After an initial meeting from which Dr. Pinhas

was excluded, the Executive Committee invited him into

the meeting room and requested that Dr. Pinhas make a

statement. Lacking sufficient notice, unprepared, con-

fused and without benefit of legal or fellow staff advice, he

asked what the charges were, and was told that the letter

of April 13, 1987 was self-explanatory. Thereafter,

Dr. Pinhas attempted to reply briefly.

32. By letter dated April 20, 1987, the same date of

that meeting, defendants Midway Hospital and Summit

Health notified Dr. Pinhas that the Midway Executive

Committee had upheld the summary suspension with the

recommendation to terminate his staff privileges at Mid-

way Hospital. He was also informed that the Midway

Hospital Board of Directors had coneurred with the

Midway Executive Committee's recommendation. (A true

and correct copy of the April 20, 1987 letter is attached

hereto as Exhibit “C” and made a part hereof.)

33. In accordance with the Midway Hospital Medical

Staff Bylaws (“Bylaws”, a true and correct copy of the

relevant portions of which are attached hereto as Exhibit

D“ and made a part hereof), Dr. Pinhas requested a

hearing by the Midway Hospital Judicial Review Commit-

tee (“Judicial Review Committee“) by letter dated

April 30, 1987. (A true and correct copy of the April 30,

1987 letter is attached hereto as Exhibit “E” and made a

part hereof.)

34. In his April 30, 1987 letter, Dr. Pinhas made

certain procedural and discovery requests, including the

right to be represented by retained counsel, the right to

full disclosure with sufficient particularity of all charges

against him, the right to an impartial hearing officer, and

the right to an unbiased, unprejudiced hearing panel.

35. On May 7, 1987 Dr. Pinhas received Midway Hos-

pital's Notice of Hearing (“May 7, 1987 Notice”) from

defendants Midway Hospital and Summit Health,

through defendant Mr. Feldman, scheduling the Judicial

Review Committee's proceedings to commence on May 12,

1987. (A true and correet copy of the May 7, 1987 Notice

is attached hereto as Exhibit “F” and made a part

hereof.)

36. The May 7, 1987 Notice, according to the Bylaws,

is also meant to serve the funetion of notifying a Respon-

dent before the Judicial Review Committee of the charges

that are being made against him. Those charges as con-

tained in the May 7, 1987 Notice were rendered in broad,

general terms. The Notice listed “specific charts” that the

Hospital contended would support those charges. But the

charts identified were not made available to Respondent

as of the date of May 7, 1987 Notice. Approximately 128

charts were identified, though some appeared to be

duplicates.

37. The May 7, 1987 Notice announced the appoint-

ment, by defendant Dr. Lurvey, of the members of the

Judicial Review Committee and the appointment of the

Hearing Officer, defendant Mr. Posell. All of the physi-

cians who are ineluded as members of the Judicial Review

Committee are dependent upon the defendants Midway

Hospital and Summit Health for their economic livelihood

and professional activities. The members of the Judicial

Review Committee, members of the defendant Medical

Staff, together with defendants Summit Health, Midway

Hospital, Dr. Lurvey, Mr. Feldman and Mr. Posell are

represented by the same counsel, defendant W&A. W&A

has represented the other defendants in connection with

the preparation of the false and unjustified charges

brought against plaintiff Dr. Pinhas.

38. The Judicial Review Committee, over the objection

of Dr. Pinhas, included physicians who were and are in

direct economic and professional competition with plain-

tiff Dr. Pinhas: John Hofbauer, M.D. and Stephen Seiff,

M.D.

39. The May 7, 1987 Notice, in a summary fashion

dismissed some of Dr. Pinhas’ procedural and discovery

requests, and stated that the Judicial Review Committee

had unanimously voted not to permit Dr. Pinhas to be

represented by an attorney at law at the hearing.

40. On May 9, 1987, Dr. Pinhas filed his Objections to

the Notice of Hearing (“Objections”). (A true and cor-

rect copy of Dr. Pinhas’ Objections is attached hereto as

Exhibit “G” and made a part hereof.)

41. In his Objections, Dr. Pinhas contended that the

May 7, 1987 Notice did not provide a reasonable quantum

of time in which he could prepare, present, and have

decided the preliminary Motions that he believed had to

be resolved — with respect to procedure and substance —

prior to the hearing of his matter. Moreover, Dr. Pinhas

argued that without more specific information, and with-

out possession and sufficient review and analysis of docu-

mentary evidence, the Judicial Review Committee

hearing, as established and scheduled, contravened his

rights under the United States and California Constitu-

tions, the laws of the State of California, and the contrac-

tual obligations imposed upon defendant Midway

Hospital and the defendant Medical Staff to fair notice

and a rational and meaningful opportunity to be heard.

42. In his Objections, Dr. Pinhas requested that the

Judicial Review Committee sustain those objections and

dismiss the Notice of Hearing as totally defective.

43. On May 12, 1987, the administration of defendants

Midway Hospital and Summit Health did not act upon

the objection, but treated it as a request for a continuance

and granted Dr. Pinhas a two week continuance,

rescheduling the Judicie! Review Committee hearing for

May 26 and 27, 1987.

44. Because the May 7, 1987 Notice of Hearing named

defendant Mr. Posell as the Hearing Officer, on May 8,

1987, Dr. Pinhas, through his counsel Lawrence Silver,

sent Mr. Posell a letter requesting that he respond to

certain questions in order that Dr. Pinhas could deter-

mine whether to file a challenge to Mr. Posell sitting as

the Hearing Officer. (A true and correct copy of the

May 8, 1987 letter is attached hereto as Exhibit “H” ana

made a part hereof.)

45. By letter (“Posell letter”) dated May 11, 1987,

Mr. Posell refused to respond to Dr. Pinhas’ request. (A

true and correct copy of the Posell letter is attached

hereto as Exhibit “I” and made a part hereof.)

46. On May 14, 1987, Dr. Pinhas, through his counsel,

filed 15 Motions with respect to procedural and discovery

issues, including Motions regarding his request for repre-

sentation by counsel and his request that Mr. Posell

respond to certain voir dire questions in order to ascer-

tain any bias, prejudice, or interest on Mr. Posell’s part.

(True and correct copies of these Motions are attached

hereto as Exhibit “J” and made a part hereof.)

47. On information, knowledge and belief, plaintiff

alleges that defendant Mr. Posell is biased and

prejudiced against he and his counsel, Lawrence Silver,

and that Mr. Posell and members of the law firm of which

he is a partner, Shapiro, Posell & Close, serve as hearing

officers at the request of defendant W&A in cases where

W&A represents the hospital. There is a unity of interest

between defendants W&A and Mr. Posell. Mr. Posell and

his law firm are retained and continue to be retained as

counsel to the Hospital because Mr. Posell ensures that

Judicial Review Committees achieve the results that

WEA and the clients of W&A desire. Mr. Posell and

Shapiro, Posell & Close have an economic interest in the

outcome of the Peer Review Proceeding and had such an

economic interest at the outset because his continued

employment by defendant Summit Health, defendant

Midway Hospital, defendant W&A and the defendant

Kadzielski depends upon his continued rulings in favor of

the defendant Midway Hospital’s position and against

physicians who are in the same position as Dr. Pinhas.

48. On May 18, 1987, Mr. Posell wrote to Dr. Pinhas’

counsel and reiterated that the May 7, 1987 Notice ad-

vised Dr. Pinhas that the Judicial Review Committee had

unanimously voted not to permit either Dr. Pinhas or the

Medical Staff to be represented by an attorney at law at

the hearing. Mr. Posell further stated that neither the

Hearing Officer nor the Judicial Review Committee may

consider Motions or requests made “in any phase of the

hearing or appeal procedure by an attorney at law unless

the Hearing Committee, in its discretion, permits both

sides to be represented by legal counsel.” Mr. Posell cited

Bylaw Article VIII, Section 2(b), stating further that Dr.

Pinhas’ counsel’s continued participation was a violation

of that Bylaw. (A true and correct copy of Mr. Posell’s

May 18, 1987 letter is attached hereto as Exhibit K“ and

made a part hereof.)

49. On May 19, 1987, Dr. Pinhas’ counsel asked defen-

dant Mr. Posell to recuse himself because of bias and

prejudice and to answer three questions related to his ex

parte communications with counsel for the defendant

Midway Hospital, and for clarification of his ruling. (A

true and correct copy of the letter to Mr. Posell dated

May 19, 1987 is attached hereto as Exhibit L“ and made

a part hereof.) Mr. Posell has not responded to that

letter.

50. On May 19, 1987, Dr. Pinhas, appearing in propria

persona, refiled the same 15 Motions respecting procedu-

— -

ral and discovery matters, specifically including: the re-

quest to ve represented by counsel; the request that the

Hearing Officer respond to the voir dire questions submit-

ted to him; the request for the full disclosure with particu-

larity of the charges against him; and the request that Dr.

Pinhas’ motions be heard and decided at a reasonable

time prior to the commencement of the hearing.

51. On May 21, 1987, defendant Mr. Posell denied

nearly all of the Motions filed by Dr. Pinhas. (A true and

correct copy of the letter from Mr. Posell dated May 21,

1987 is attached hereto as Exhibit “M” and made a part

hereof. )

52. The alleged peer review hearings concerning Dr.

Pinhas commenced on May 26 and proceeded for a total

of six hearing sessions which were concluded on June 12,

1987.

53. During the course of the hearings, defendants

Summit Health, Midway Hospital, the Medical Staff, Mr.

Posell, Mr. Kadzielski, W&A, Dr. Perlman, Mr. Feldman,

Dr. Lurvey and Ms. Farber, engaged in conduct to de-

prive plaintiff Dr. Pinhas of a fair hearing.

54. On information, knowledge and belief, plaintiff

alleges that defendants Mr. Kadzielski and WEA, di-

reetly and indireetly, had improper ex parte communica-

tions with defendant Mr. Posell.

55. On information, knowledge and belief, plaintiff

alleges that defendants Mr. Kadzielski and W&A, di-

rectly and indirectly, had improper ex parte communica-

tions with members of the Judicial Review Committee.

56. On information, knowledge and belief, plaintiff

alleges that defendant Dr. Perlman had improper ex

parte communications with members of the Judicial Re-

view Committee.

57. On information, knowledge and belief, plaintiff

alleges that defendants Dr. Lurvey, the Medical Staff,

Summit Health, Midway Hospital had improper ex parte

communications with members of the Judicial Review

Committee.

58. On information, knowledge and belief, plaintiff

alleges that defendant Mr. Posell had improper ex parte

communications with members of the Judicial Review

Committee.

59. Defendants Summit Health, Midway Hospital,

Medical Staff and others sought to, and did in fact,

intimidate witnesses Dr. Pinhas sought to call as wit-

nesses in his defense of the case, including the threat of

initiating Peer Review Proceedings against physicians

who might testify on behalf of Dr. Pinhas. ,

60. Defendants Summit Health, Midway Hospital,

Medical Staff, Ms. Farber and others sought to, and did

in fact, intimidate witnesses Dr. Pinhas sought to call as

witnesses in his defense of the case.

61. On June 1, 1987, at approximately 6:30 p.m., defen-

dant Ms. Farber of Midway Hospital’s Risk Management

Section approached a table in the cafeteria where Marina

Nino, Barbara Aviles, Rose Pierce and Suprani Watana,

«ll of whom were employed by defendants Summit Health

and Midway Hospital, were sitting while they were wait-

ing to be called into the hearing regarding Dr. Pinhas’

privileges. Ms. Farber said the following:

a. I want to prepare you for what you are getting

yourselves into.”

b. “You don’t have to do this.“

—

e. “You ean leave if you want to. You will not be

persecuted or harassed if you leave.”

d. “You are on your own, the hospital will not pay

for your time.”

e. “It is going to be like a court in there. There is a

court stenographer. Everything you say will be taken

down and under oath.”

f. “You will each be called, one by one, you will not

de allowed to go in as a group.”

g. “You will be questioned in there by doctors, you

will be cross-examined.”

62. Shortly thereafter, Kay Deol, an administrator of

defendant Midway Hospital and an employee of defend-

ants Summit Health, Midway Hospital and Mr. Feldman,

came over to the table and she and defendant Ms. Farber

stayed around and hovered around the cafeteria for the

rest of the evening. (True and correct copies of the

declarations dated June 9, 1987 of Marina Nino and

Barbara Aviles are attached hereto as Exhibit “N” and

made a part hereof.)

63. Defendants Summit Health, Midway Hospital,

Medical Staff, Mr. Kadzielski, W&A, Mr. Posell, Mr.

Feldman, and Dr. Lurvey, precluded plaintiff Dr. Pinhas

from examining two important witnesses, Mr. Feldman,

the person who signed the charges against Dr. Pinhas and

Dr. Lurvey, Chief of Staff who allegedly authorized the

charges against Dr. Pinhas. Said defendants refused to

produce Mr. Feldman and Dr. Lurvey as witnesses for

cross-examination even though,

a. Mr. Feldman signed the charges,

b. Dr. Lurvey was listed in Exhibit F“, the

charges, as a witness who would appear at the hear-

ing, and

e. Dr. Pinhas and his representative repeatedly

requested that they appear at the hearing and testify

truthfully. (A true and correct copy_of Dr. Pinhas’

request to Dr. Lurvey and Mr. Feldman to appear

are attached hereto as Exhibit “O” and made a part

hereof.)

64. It is custom and practice in California that during

the peer review proceeding, even if the Judicial Review

Committee does not permit counsel to be present at the

hearing, counsel is permitted to be on the grounds of the

hospital to confer with his client during appropriate

breaks in the proceeding.

65. Defendant Mr. Posell issued an order ordering

counsel for Dr. Pinhas, who had been listed as a witness,

excluded from the Hospital grounds during any portion

of the hearing, while permitting counsel for the Hospital,

Mr. -Kadzielski and/or associates of W&A, not only to

utilize hospital facilities, but also to communicate with

the prosecutor, defendant Dr. Perlman.

66. Defendant Mr. Posell acted not only as Hearing

Officer but also as counsel for defendant Midway Hospi-

tal and the Medical Staff, and ruled and continued to

rule, without legal or factual justification, adversely to

Dr. Pinhas.

67. Defendant Mr. Posell, acting as counsel for the

Medical Staff, refused to allow Dr. Pinhas to have

counsel.

68. Defendant Mr. Posell made rulings during the

course of the entire proceeding to frustrate and interfere

with plaintiff Dr. Pinhas’ ability to defend against the

charges brought against him.

69. Defendant Mr. Posell ruled that Dr. Pinhas’ coun-

sel’s correspondence would not be answered, and yet

complied with all requests of defendants Mr. Kadzielski

and W&A.

70. Defendant Mr. Posell intentionally ordered wit-

nesses not to testify to the fact that defendant Dr. Macy

and defendant Dr. Salz, who testified adversely to Dr.

Pinhas at the hearing, also engaged in the same similar

conduct with which Dr. Pinhas was charged. Mr. Posell

precluded them from being identified by witnesses who

were prepared to identify Dr. Macy and Dr. Salz to

establish what the “standard in the community” was.

Defendant Mr. Posell declined to permit Dr. Pinhas and

his physician representative to have breaks and time to

cv.fer. In addition, Mr. Posell issued time requirements

which were inherently unfair, and substantially

prejudiced Dr. Pinhas. Mr. Posell, on the other hand,

always considered and granted whatever requests were

made by the prosecutor defendant Dr. Perlman.

71. Defendant Mr. Posell precluded testimony and

evidence from being presented by Dr. Pinhas, and made

hostile verbal comments to Dr. Pinhas, his physician

representative and witnesses who appeared on behalf of

Dr. Pinhas on and off the record made before the Judicial

Review Committees.

72. Defendant Mr. Kadzielski and W&A retained, as

they have done in the past, the services of Lacey Short-

hand Reporting Service (Lacey Reporters”), over whom

they seek to exercise and do exercise control by reason of

the substantial business they place with Lacey Reporters.

Dr. Pinhas needed a copy of the transcript in order to

adequately examine witnesses and prepare cross-examina-

tion. Plaintiff Dr. Pinhas, through counsel, ordered a copy

of the transcript from Lacey Reporters on an expedited

basis. Notwithstanding the order, defendant Mr. Kadziel-

ski and W&A ordered Lacey Reporters not to produce the

transcript. On the same day as defendant Mr. Kadzielski

and W&A issued their instructions to Lacey Reporters,

counsel for Dr. Pinhas inquired how the preparation of

the transcript was coming and was advised that Lacey

Reporters could not produce a transcript in any timely

fashion by which Dr. Pinhas could be able to use it for

successive hearings. Upon information, knowledge and

belief, plaintiff alleges that Lacey Reporters did so at the

request of defendants Mr. Kadzielski and W&A. A day or

so later Lacey Reporters agreed to produce the tran-

seript, but not before the date that its utility for cross-

examination would have passed and at a page rate of

$12.00 per page.

73. Defendant Mr. Posell, after he heard from other

defendants that plaintiff Dr. Pinhas, through counsel, was

trying to secure a transcript, and while the hearing was

pending, called Dr. Pinhas on the telephone. During that

telephone conversation Mr. Posell called Dr. Pinhas a liar

and threatened him by saying that Dr. Pinhas’ attempts

to get a copy of the transcript would cause him problems

in the future.

74. On June 29, 1987 Dr. Pinhas received in the mail a

document entitled “Report and Decision of the Judicial

Review Committee (“Report and Decision”) (a copy of

the Report and Decision is attached hereto as Exhibit

75. Upon information, knowledge and belief, plaintiff

alleges that defendant Mr. Posell drafted the purported

Report and Decision in an effort to protect defendants

Summit Health, Midway Hospital, the Medical Staff, Dr.

Lurvey, Mr. Feldman and himseif from liability, and that

such report was inconsistent with the findings and deter-

minations of the Judicial Review Committee.

¢ 22

76. Although the alleged Report and Decision pur-

ports to bear the signature of the Chairman of the Judi-

cial Review Committee, Ellis Berkowitz, M.D.; it does not.

Plaintiff on information knowledge and belief alleges that

this alleged Report and Decision is not reflective of the

determination of that tribunal. Plaintiff on information

knowledge and belief alleges that this alleged Report and

Decision was signed by an agent of defendants Summit

Health, Midway Hospital, the Medical Staff, Mr. Feldman

and Dr. Lurvey, without the authorization of each mem-

ber of the Judicial Review Committee.

77. On July 6, 1987 the defendant Medical Staff ap-

pealed the decision of the Judicial Review Committee to

the Governing Board of defendant Midway Hospital (a

copy of the appeal of Defendant Medical Staff is attached

hereto and made a part hereof as Exhibit “Q’’).

78. On July 7, 1987 Plaintiff Dr. Pinhas appealed the

purported decision of the Judicial Review Committee to

the Governing Board of the Defendant Midway Hospital

(a copy of the appeal of plaintiff Dr. Pinhas is attached

hereto as Exhibit R“).

FIRST CLAIM FOR RELIEF

(For Deelaratory Relief Against Defendants Summit

Health, Midway Hospital, Medical Staff, Mr. Feldman,

Dr. Lurvey and BMQA Because They are Violating the

Constitution of the United States by Enforcing and

Participating in the Enforcement of Section 805 and

805.5 of the California Business and Professions Code

and Section 423, et seq of the Health Care Quality

Improvement Act of 1986, 42 U.S.C. § 11133)

79. Plaintiff incorporates Paragraphs 1 through 78,

inclusive, above by reference as though set forth in full

herein.

80. Defendants, and each of them, are estopped from

denying, that the actions which the defendants have

taken, and the actions which are threatened by the de-

fendants, have been done and are being done pursuant to

and under authority of the laws of the State of California

and the laws of the United States.

81. Defendants, and each of them, are estopped from

denying that they have acted, claim to act, and threaten to

continue to act, pursuant to, under the authority of, and

within the protection of:

a. Section 70703, et seq., of the California Admin-

istrative Code;

b. Section 805 of the California Business and Pro-

fessions Code;

e. Section 805.5 of the California Business and

Professions Code;

d. Section 805.1 of the California Business and

Professions Code;

e. Section 1094.5 of the California Code of Civil

Procedure and the case law decided thereunder;

f. Sections 1156 and 1157 of the California Evi-

dence Code;

g. Section 43.7 of the California Civil Code;

h. Other provisions of the laws of the State of

California and the case law decided thereunder; and

i. Sections 423 et seq. of the Health Care Quality

Improvements Act of 1986, 42 U.S.C. § 11133, et. seq.

82. To maintain licenses, health care facilities regu-

larly must review privilege termination and restriction

procedures to assure their conformity to applicable law.

The California Administrative Code § 70703(a) requires

that the Hospital “shall have an organized medical staff

responsible to the governing body for the adequacy and

quality of the medical care rendered to patients in the

hospital.” According to Title 22, California Administra-

tive Code, 5 70701(a)(1)(F), a Hospital must have a

governing body which must adopt written bylaws, in

accordance with legal requirements and its community,

which shall include ‘self-government by the medical staff

with respect to the professional work performed in the

hospital... The governing body shall “assure that the

medical staff bylaws, rules and regulations are subject to

governing body approval..., and these bylaws shall in-

clude an effective formal means for the medical staff, as a

liaison, to participate in the development of all hospital

policy.” Id. at (8), (9).

83. When a health care facility terminates or restricts

the privileges of a physician, it must promptly report to

the defendant BMQA all facts and circumstances that

caused the termination or restraint pursuant to Section

805 of the California Business and Professions Code,

which reads as follows:

“California Business and Professions Code $805

The chief executive officer and the chief of the

medical staff, where one exists, of any health —

licensed pursuent to Division 2 (commencing wi

Section 1200), or any medical, psychological, dental

or podiatrie professional society, or medical specialty

society described in Section 43.7 of the Civil Code, or

any health care service plan or medical care founda-

tion shall report to the agency which issued the

license, certificate or similar authority when any

licensed physician and surgeon, psychologist, podia-

trist, or dentist is denied staff privileges, removed

from the medical staff of the institution or if his or

her staff or membership privileges are restricted for

a cumulative total of 45 days in any calendar year for

any medical disciplinary cause or reason. The reports

shall be made within 20 working days following such

removal or restriction, shall be certified as true and

correct by the chief executive officer and the chief of

the medical staff, where one exists, and shall contain

a statement detailing the nature of the action, its

date and all of the reasons for, and circumstances

surrounding, the action. If the removal or restric-

tions is by resignation or other voluntary action that

was requesied or bargained for in lieu of medical

disciplinary action, the report shall so state.

The reporting required herein shall not act as a

waiver of confidentiality of medical reeords and com-

mittee reports. The information reporved or disclosed

shall be kept confidential except as provided in sub-

division (e) of Section 800, provided that a copy of

the report containing the information required by

this section may be disclosed as required by Section

805.5 with respect tu reports received on or after

January 1, 1976. The Board of Medical Quality As-

surance, the Board of Osteopathic Examiners, and

the Board of Dental Examiners shall disclose such

reports as required by Section 805.5. A file contain-

ing reports received pursuant to this section shall be

maintained by the agency receiving the reports for a

minimum of five years after receipt.

No person shall ineur any civil or criminal liability

as the result of making any report required by this

section. *

Failure to make a report pursuant to this section shall

be a misdemeanor punishable by a fine of not less than

two hundred dollars ($200) nor more than one thousand

two hundred dollars ($1,200).”

84. Pursuant to Section 805.5 of the California Busi-

ness and Professions Code, hospitals are required to

request from BMQA information regarding any adverse

determination made pursuant to the peer review process

contained in BMQA’s records. The pertinent parts of

Section 805.5 of the California Business and Professions

Codes read as follows:

“California Business and Professions Code § 805.5

(a) Prior to granting or renewing staff privileges

for any physician and surgeon, clinical psychologist,

podiatrist, or det ist, any health facility licensed

pursuant to Divisien 2 (commencing with Section

1200) of the Health and Safety Code, or any health

eare service plan or nedical care foundation, or the

medical staff of any such institution, shall request a

report from The Board of Medical Quality Assur-

ance, the Board of Osteopathic Examiners, or the

Board of Dental Examiners to determine if any

report has been made pursuant to Section 805 indi-

eating that the applying physician and surgeon,

clinical psychologist, podiatrist, or dentist has been

denied staff privileges, been removed from a medical

staff, or had his staff privileges restricted as pro-

vided in Section 805. The request shall include the

name and California license number of the physician

and surgeon, clinical psychologist, podiatrist, or aen-

— — -

tist. Furnishing of a copy of the 805 report shall not

cause the 805 report to be a publie record.

(b) Upon a request made by an institution de-

scribed in subdivision (a) or its medical staff, which

is received on or after January 1, 1980, the board

shall furnish a copy of any report made pursuant to

Section 805. However, the board shall not send a

copy of a report where the denial, removal, or restric-

tion was imposed solely because of the failure to

complete medical records.

In the event that the board fails to advise such

institution within 30 working days following its re-

quest for a report required by this section, the insti-

tution may grant or renew staff privileges for the

physician and surgeon, clinical psychologist, podia-

trist, or dentist.

(e) Any institution described in subdivision (a)

or its medical staff which violates the provisions of

subdivision (a) is guilty of a misdemeanor and shall

be punished by a fine of not less than two hundred

dollars ($200) nor more than one thousand two

hundred dollars ($1,200).”

85. California Business and Professions Code § 850.1

provides that the state licensing agency, defendant

BMQA, is entitled to inspect and copy statements of

charges, documents, medical charts or exhibits in evi-

dence; and any opinion findings or conclusions relating to

any disciplinary proceeding resulting in an action subject

to § 805 of the Business and Professions Code reporting

provisions.

86. A hospital’s decision terminating and restricting

privileges are judicially reviewable pursuant to Section

1094.5 of the California Code of Civil Procedure. (A copy

of the text of Section 1094.5 is attached hereto as Adden-

dum “A”’.)

87. Peer review proceedings are confidential pursuant

to California Evidence Code Sections 1156 and 1157. (A

copy of the text of Sections 1156 and 1157 are attached

hereto as Addendum B'.)

88. California provides immunity to participants in the

peer review process pursuant to Section 43.7 of the

California Civil Code. (A copy of the text of Section 43.7

is attached hereto as Addendum C.)

89. Defendants are estopped from denying that they

have been, are presently, and will be acting under color of

authority of law and the protection afforded to them

provided by the laws of the State of California and of the

United States. All defendants are engaged in the enforce-

ment and execution of the laws of the State of California,

and more particularly, an alleged peer review process

directed to plaintiff at defendant Midway Hospital. As a

result of defendants’ wrongful conduct, plaintiff has been

deprived of his constitutionally protected rights.

90. Defendant BMQA is the “Board of Medical Exam-

iners“ as defined by the Health Care Quality Improve-

ment Act of 1986, Section 423, et. seq. § 11133 which

provides, in pertinent part:

“See. 423. REPORTING OF CERTAIN PRO-

FESSIONAL REVIEW ACTIONS TAKEN BY

HEALTH CARE ENTITIES[, 42 U.S.C. § 11133].

(a) REPORTING BY HEALTH CARE

ENTITIES. —

(1) ON PHYSICIANS. — Each health care en-

tity which —

ee ee

(A) takes a professional review action that

adversely affects the clinical privileges of a phy-

sician for a period longer than 30 days;

(3) INFORMATION TO BE REPORTED. —

The information to be reported under this subsec-

tion is — -

(A) the name of the physician or practitioner

involved,

(B) a description of the acts or omissions or

other reasons for the action or, if known, for the

surrender, and

circumstances of the action or surrender as the

Secretary deems appropriate.

(b) REPORTING BY BOARD OF MEDICAL

EXAMINERS. — Each Board of Medical Examin-

ers shall report, in accordance with section 424,

the information reported to it under subsec-

tion (a) and known instances of a health care

entity’s failure to report information under

subsection (a) (1).

See. 425. DUTY OF HOSPITALS TO OBTAIN

INFORMATION, [42 U.S.C. § 11135].

(a) IN GENERAL. — It is the duty of each

hospital to request from the Secretary (or the

agency designated under section 424(b)), on and

after the dat. information is first required to be

reported under section 424(a)) —

(1) at the time a physician or licensed health

care practitioner applies to be on the medical

staff (courtesy or otherwise) of, or for clirical

privileges at, the hospital, information reported

under this part concerning the physician or

practitioner, and

(2) once every 2 years information reported

under this part concerning any physician or such

practitioner who is on the medical staff (cour-

tesy or otherwise) of, or has been granted

elinieal privileges at, the hospital.

A hospital may request such information at

other times. See. 427. MISCELLANEOUS

PRO VISIONS]. 42 U.S.C. § 11137].

(a) PROVIDING LICENSING BOARDS

AND OTHER HEALTH CARE ENTITIES

WITH ACCESS TO INFORMATION. — The See-

retary (or the agency designateg under section

424(b)) shall, upon request, provide information

reported under this part with respect to a physi-

cian or other licensed health care practitioner to

State licensing boards, to hospitals, and to other

health care entities (including health maintenance

organizations) that have entered (or may be enter-

ing) into an employment or affiliation relationship

with the physician or practitioner or to which the

physician or practitioner has applied for clinical

privileges or appointment to the medical staff.

(e) RELIEF FROM LIABILITY FOR RE-

PORTING. — No person or entity shall be held

liable in any civil action with respect to any report

made under this part without knowledge of the

falsity of the information contained in the report.

(d) INTERPRETATION OF INFORMATION.

— In interpreting information reported under this

part, a payment in settlement of a medical mal-

practice action or claim shall not be construed as

creating a presumption that medical malpractice

has occurred.”

91. Defendant BMQA is charged with the enforeement

of the Health Care Quality Improvement Act of 1986, see

Section 423, et. seq.

92. Defendant BMQA asserts that the following is

required pursuant to Sections 805 of the California Busi-

ness and Professions Code and pursuant to Section 423 of

the Health Care Quality Improvements Act of 1986:

a. Defendant Midway Hospital, by its administra-

tor, and defendant Dr. Lurvey, as Chief of Staff of

Midway Hospital, are required pursuant to Section

805 of the California Business and Professions Code

to submit a “Section 805 report“ to it.

b. Defendant Midway Hospital is required, pursu-

ant to Section 423 of the Health Care Quality Im-

provements Act of 1986, to make a “Section 423

report“ to it.

e. Absent notice and an opportunity for hearing,

the Section 805 report, or the contents thereof, shall,

pursuant to Business and Professions Code Section

805.5, be distributed to (a) all health care facilities

where plaintiff Dr. Pinhas has staff privileges, upon

reappointment to the staff, and (b) all hospitals

where Dr. Pinhas may apply for staff privileges.

d. Absent notice and an opportunity for hearing,

the Section 423 report, or the contents thereof, shall,

pursuant to Section 423 of the Health Care Quality

Improvements Act of 1986, be distributed, within two

years, to (a) all health care facilities where plaintiff

Dr. Pinhas has staff privileges, upon reappointment

to the staff, and (b) all hospitals where Dr. Pinhas

may apply for staff privileges.

93. Defendants Summit Health, Midway Hospital, the

Medical Staff, Mr. Feldman and Dr. Lurvey have

threatened to file and continue to threaten to file a

Section 805 report and a Section 423 report.

94. Defendant Midway Hospital’s chief executive of-

ficer and defendant Dr. Lurvey may claim immunity of

the content of the filing of a Section 805 report even if

that content is incorrect, misleading or malicious pursu-

ant to Section 805 of the Business and Professions Code.

95. Defendant Midway Hospital and defendant Dr.

Lurvey may claim immunity of the content of the filing of

a Section 423 report even if that content is incorrect,

misleading or malicious pursuant to Section 427 of the

Health Care Quality Improvements Act of 1986, 42 U.S.C.

§ 11137(e).

96. Dr. Pinhas has no control over the wording that is

contained in the Section 805 report or Section 423 report

from defendant Midway Hospital and defendant Dr.

Lurvey.

97. The Section 805 report and the Section 423 report

was, or will be, prepared and the wording was selected

within the complete discretion of defendant Midway Hos-

pital and defendant Dr. Lurvey. —

98. Defendant Midway Hospital and defendant Dr.

Lurvey are not required to submit, in advance, and do not

intend to submit, in advance of their filing it with BMQA,

the form of Section 805 report or Section 423 report to

Dr. Pinhas.

99. Defendant Midway Hospital and defendant Dr.

Lurvey are not required to provide Dr. Pinhas, and will

not provide Dr. Pinhas, with a copy of the Section 805

report or the Section 423 report iter it has been filed

with BMQA.

100. The Section 805 report and the Section 423 report

or the content there of shall be distributed to other

hospitals, physicians and others pursuant to the statute,

regardless of the content of the reports.

101. Any receipt of the Section 805 report or Section

423 report, the maintenance of the Section 805 report or

the Section 423 report, or the distribution of the Section

805 report or the Section 423 report, is done with the

funds of the State of California, is done pursuant to the

authority provided by the statutes of the State of Califor-

nia, more particularly, the California Business and Pro-

fessions Code Sections 805 and 805.5 and the Health Care

Quality improvements Act of 1986. The obligation of

hospitals, to secure information contained in the Secticn

805 report or Gection “23 reports for physicians whose

staff privileges are being renewed or who seek staff

privileges, is compelled and criminal sanctions may apply

to those who do not, pursuant to the laws of the State of

California, more particularly the California Business and

Professions Code Sections 805 and 805.5 and the Health

Care Quality Improvements Act of 1986.

102. It is common practice in California, for every

hospital who seeks appointment or reappointment of a

physician to the medical staff, to require that the physi-

cian disclose whether or not they have had medical staff

privileges suspended, terminated, or any action taken

thereon.

103. It is common practice in California for hospitals,

after the decision in Elam v. College Park Hospital, 132

Cal.App.3d 332, 183 Cal.Rptr. 156 (1982) to preclude

admission to the hospital staff if a physician has a report

that in any way casts any doubt on his competency to

practice medicine or engages in any conduct which may

adversely affect patient care.

104. Plaintiff Pinhas contends and secs the declara-

tion of this Court that § 805 and § 805.5 of the Business

and Professions Code of the State of California as inter-

preted and implemented by the acts of the defendants,

including cefendant BMQA, violates the Constitution of

the United States and more particularly the 14th and 5th

Amendments thereto in that Dr. Pinhas’ rights to due

process of law, the equal protection of the laws and his

rights to privacy secured to him by the Constitution of the

United States are violated.

105. Defendants contend and seek a declaration to the

contrary.

106. Plaintiff Pinhas contends and seeks a declaration

of this Court that Section 423 et. seq. of the Health Care

Quality Improvements Act of 1986 violates the Constitu-

tion of the United States and more particularly the 5th

Amendment thereto in that Dr. Pinhas’ rights to due

process of law, the equal protection of the laws and his

rights to privacy secured to him by the Constitution of the

United States are violated.

107. Defendants contend and seek a declaration to the

contrary.

108. It is necessary and appropriate that this dispute

between plaintiff Dr. Pinhas and defendants be adjudi-

eated and determined promptly, so that the parties to this

litigation may know their rights and obligations under the

laws and Constitution of the United States and because

failure to determine this dispute will result in irreparable

injury to Dr. Pinhas.

SECOND CLAIM FOR RELIEF

(For Damages for Violations of Plaintiff's Constitutional

Rights and the Civil Rights Act, 42 U.S.C. § 1983 by

Defendants Summit Health, Midway Hospital, Medical

Staff, Mr. Feldman, Dr. Reader, Dr. Lurvey, Mr.

Posell, Dr. Macy, Dr. Salz, Dr. Perlman, Ms. Farber,

Mr. Kadzielski, W&A, and Each of Them)

109. Plaintiff incorporates Paragraphs 1 through 78

and 80 through 103, inclusive, above by reference as

though set forth in full herein.

110. Dr. Pinhas has been summarily, knowlingly, and

intentionally deprived of the status and his property

interest in membership on Midway Hospital's medical

staff, including admitting and surgical privileges at Mid-

way Hospital, without prior notice or an opportunity to be

heard.

111. By virtue of the unjustified and unlawful Peer

Review Proceeding which has been commenced and is

continuing to be prosecuted against Dr. Pinhas, defend-

ants and each of them have been, are presently, and will

be acting under the color of authority and law of the State

of California and of the United States. Defendants and

each of them claim that they are engaged in the enforce-

ment and execution of the laws of the State of California

and the peer review process. Under such circumstances,

Dr. Pinhas is entitled to due process rights under the

United States Constitution.

112. Defendants, and each of them, by denying Dr.

Pinhas representation by counsel, full disclosure with

particularity of the charges against Dr. Pinhas and by

refusing to take action on plaintiff's request that Dr.

Pinhas’ Motions be heard and decided at a reasonable

time prior to the commencement of the hearing, are acting

in contravention of procedures required by due process.

Further, defendants and each of them, by denying plain-

tiff his right to an unbiased, unprejudiced, detached

hearing officer, and by appointing the Judicial Review

Committee that consists of members who are in active

economic and professional competition with plaintiff and

of defendant's own medical staff and subject to the

control, persuasion and undue influence of defendants, is

further depriving defendant of a fair opportunity to be

heard as guaranteed to him by the due process and equal

protection clauses of the Constitution of the United

States. Further, improper ex parte communications be-

tween counsel for the Medical Staff, the hearing officer,

the Judicial Review Committee members, the prosecutor,

and officers of the Hospital deny plaintiff a fair hearing

consistent with due process. Further, defendants’ intimi-

_dation of witnesses, depriving witnesses of the plaintiff

from attending the hearing, threatening plaintiff's coun-

sel with arrest and ordering him off Hospital grounds

during the hearing — even though he was listed as a

witness, ordering witnesses not to testify to facts helpful

to plaintiff Dr. Pinhas, vilifying plaintiff, his physician

representative, his witnesses, and interfering with plain-

tiff's ability to timely get a copy of the transcript of

proceedings deprive plaintiff of due process of law.

113. Based on the conduct of defendants, and each of

them, as set forth above, Dr. Pinhas has been deprived of

his rights in violation of the 5th and the 14th Amend-

ments and Due Process and Equal Protection Clauses of

the United States Constitution together with his constitu-

tional right to privacy and has been and will continue to

suffer damages in an amount to be determined at the trial

of this matter, but in excess of the jurisdictional limits of

this Court.

114. As a result of the conduct of defendants and each

of them, plaintiff is entitled to reasonable attorneys fees,

pursuant to 42 U.S.C. § 1988.

THIRD CLAIM FOR RELIEF

(For Damages for Violations of the Constitution of the

United States and the Civil Rights Act 42 U.S.C.

§ 1985(3) by Defendants Summit Health, Midway Hos-

pital, Medical Staff, Mr. Feldman, Dr. Reader, Dr.

Lurvey, Mr. Posell, Dr. Macy, Dr. Salz, Dr. Perlman,

Ms. Farber, Mr. Kadzielski, W&A, and Each of Them)

115. Plaintiff realleges and incorporates herein by ref-

erence paragraphs 1 through 78, 80 through 103 and 110

inelusive, of this First Amended Complaint.

116. Defendants, and each of them, have conspired to

deprive plaintiff of equal protection under the laws and of

equal privileges and immunities under the laws. In fur-

therance of this conspiracy, defendants, and each of them,

heve denied Dr. Pinhas representation by counsel, full

disclosure with particularity of the charges against Dr.

Pinhas and denied plaintiff's request that Dr. Pinhas

Motions be heard and decided at a reasonable time prior

to the commencement of the hearing, and have acted in

contravention of procedures required by due process.

Further, defendants and each of them, have denied plain-

tiff his right to an unbiased, unprejudiced, detached

hearing officer, and by appointing the Judicial Review

Committee that consists of members who are in active

economic and professional competition with plaintiff and

of defendant’s own medical staff and subject to the

control, persuasion and undue influence of defendants,

has further deprived defendant of a fair opportunity to be

heard as guaranteed to him by the due process and equal

protection clauses of the Constitution of the United

States. Further, improper ex parte communications be-

tween counsel for the Medical Staff, the hearing officer,

the Judicial Review Committee members, the prosecutor,

and officers of the Hospital have denied plaintiff a fair

hearing consistent with due process. Further, defendants’

intimidation of witnesses, depriving witnesses of the

plaintiff from attending the hearing, threatening plain-

tiff's counsel with arrest and ordering him off Hospital

grounds during the hearing — even though he was listed

as a witness, ordering witnesses not to testify to facts

helpful to plaintiff Dr. Pinhas, vilifying plaintiff, his

physician representative, his witnesses on and off the

record before the Judicial Review Committee, and inter-

fering with plaintiff's ability to timely get a copy of the

transcript of proceedings has deprived plaintiff of due

process of law.

117. As a result of the conduct of defendants, and

each of them, plaintiff has suffered property damage to

his medical practice, and has suffered the deprivation of

his property interest in membership on the Midway Hos-

pital’s medical staff, including admitting and surgical

privileges, at Midway Hospital. As a consequence, plain-

tiff has been deprived of his rights in violation of the 5th

and 14th Amendments and Due Process and Equal Pro-

tections Clauses of the United States Constitution to-

gether with the constitutionally protected right of

privacy.

118. As a result of the conduct of defendants, and

each of them, plaintiff has been damaged in an amount to

be determined at the time of trial, but in an amount in

excess of the jurisdictional limits of this Court.

119. As a result of the conduct of defendants, and

each of them, plaintiff is entitled to reasonable attorneys

fees, pursuant to 42 U.S.C. § 1988 of the Civil Rights Act.

FOURTH CLAIM FOR RELIEF

(Treble Damages for Violation of the Sherman Anti-Trust

Act, Section 1, 15 U.S.C. 6 1 by defendants Summit

Health, Midway Hospital, the Medical Staff, Mr. Feld-

man, Dr. Reader, Dr. Lurvey, Dr. Macy, Dr. Salz, Dr.

Perlman, Mr. Kadzielski, W&A and Each of Them)

120. Plaintiff realleges and incorporates herein by ref-

erence paragraphs 1 through 78, 80, 84, 90, 91, 93 through

103, and 112, inclusive, of the First Amended Complaint.

121. Defendants Dr. Reader, Dr. Macy, Dr. Salz, Dr.

Perlman, and others are engaged in the practice of

medicine limited to eye medicine and ophthalmologic

surgery and are in competition with plaintiff Dr. Pinhas.

122. Defendants are seeking to effectuate a boycott

and drive Dr. Pinhas out of business so that other

ophthalmologists and eye physicians, including, but not

limited to, defendants Dr. Reader, Dr. Macy, Dr. Salz

and Dr. Perlman, will have a greater share of the eye care

and ophthalmic surgery in Los Angeles.

123. In an effort to effectuate the boycott and to

boyeott plaintiff Dr. Pinhas, defendants Dr. Reader, Dr.

Macy, Dr. Salz, Dr. Perlman, and others, including, but

not limited to, Dr. Lurvey have sought to control and do

control defendant Medical Staff. Defendant Mr. Feldman

——

controls Summit Health insofar as it relates to Dr.

Pinhas and Midway Hospital.

124. After Dr. Pinhas refused to accept the terms and

conditions of the “sham” contract and refused to return a

copy of it to Midway Hospital, and after defendant Dr.

Lurvey threatened that proceedings may be instituted

against him in the event that he sought to utilize this

Exhibit “A” in any way detrimental to Midway Hospital,

in late March, 1987 Summit Health, Midway Hospital,

Medica! Staff, Mr. Feldman, Dr. Reader, Dr. Lurvey, Dr.

Macy, Dr. Salz, and Dr. Perlman entered into a combina-

tion and conspiracy to retaliate against Dr. Pinhas and to

preclude him from continued competition in the market

place, not only at defendant Midway Hospital, but by

reason of the filing of an improper Section 805 report and

a Section 423 report, preclude plaintiff Pinhas from prac-

tieing medicine in California, if not the United States. In

furtherance of the conspiracy of defendants Summit

Health, Midway Hospital, Medical Staff, Mr. Feldman,

Dr. Reader, Dr. Lurvey, Dr. Macy, Dr. Salz, and Dr.

Pearlman, defendants enlisted the assistance and re-

ceived the assistance of Mr. Posell, Mr. Kadzielski, and

W&A to create unjustified charges, to secure adverse

determinations against plaintiff Dr. Pinhas, to cause a

summary suspension and termination of his privileges at

Midway Hospital and report that summary suspension

and termination to the defendant BMQA, and causing

dissemination of that adverse determination to all hospi-

tals which Dr. Pinhas is a member, and to all hospitals to

which he may apply so as to secure similar actions by

those hospitals, thus effectuating a boycott of Dr. Pinhas.

125. Without admission to other hospitals, plaintiff

Pinhas has no method by which he can practice

ophthalmic surgery, which constitutes the greater portion

of his practice.

126. The actions undertaken by defendants in connec-

tion with the bringing of false charges against Dr. Pinhas

were done with oppression and malice and:

a. Were not done in a reasonable belief that the

action was in furtherance of the quality of health

care;

b. Were not done after a reasonable effort to

obtain the facts of the matter;

e. Were not done after adequate notice and hear-

ing procedures afforded to Dr. Pinhas, and utilized

procedures which were not fair under the eireum-

stances; and

d. Were not based upon the reasonable belief that

the action was warranted by the facts after defend-

ants’ efforts to obtain facts.

FIFTH CLAIM FOR RELIEF

(Injunetive Relief Against All Defendants)

127. Plaintiff realleges and incorporates herein by ref-

erence all of the allegations of this First Amended

Complaint.

128. Defendants, and each of them, threatened to, and

unless restrained will, continue to deprive plaintiff Dr.

Pinhas of his right to due process and fair procedure

under both the United States Constitution and the Con-

stitution of the State of California.

129. Defendants’ conduct has caused, and will con-

tinue to cause, plaintiff great and irreparable injury,

including, but not limited to, the injury which resulted in

the filing of a California Business and Professions Code

Section 805.5 notice for which pecuniary damages would

not afford adequate relief, in that they would not com-

pletely compensate plaintiff's professional reputation and

good standing, and would be extremely difficult to

ascertain.

WHEREFORE, plaintiff requests judgment to be en-

tered for plaintiff and against defendants, and each of

them, as follows:

1. On the First Claim for Relief, for a declaratory

judgment that Sections 805 and 805.5 of the California

Business and Professions Code and Section 423 et seq of

the Health Care Quality Improvement Act of 1986, 42

U.S.C. § 11133 et seq., are unconstitutional, together with

costs of suit incurred herein, including reasonable attor-

neys fees pursuant to 42 U.S.C. § 1988, and for such other

and further relief as the Court deems just and proper.

2. On the Second Claim for Relief, for damages ac-

cording to proof, for costs of suit incurred herein, includ-

ing reasonable attorneys fees pursuant to 42 U.S.C.

§ 1988, and for such other and further relief as the Court

deems just and proper.

3. On the Third Claim for Relief, for damages accord-

ing to proof, for costs of suit incurred herein, including

reasonable attorneys fees pursuant to 42 U.S.C. § 1988,

and for such other and further relief as the Court deems

just and proper.

4. On the Fourth Claim for Relief, for damages ac-

cording to proof and then trebled, and for costs of suit

incurred herein, including reasonable attorneys fees as

allowed by law, and for such other and further relief as

the Court deems just and proper.

5. On all Claims for Relief an injunction, preliminary,

and final, against each and all defendants, their agents,

assistants, successors, employees, attorneys, representa-

tives, and all persons acting in concert or cooperation

with them or at their direction from violating the right of

plaintiff.

JURY TRIAL DEMAND

1. Plaintiff hereby demands trial by jury herein.

DATED: July 13, 1987

LAWRENCE SILVER

A Law Corporation

By: LAWRENCE SILVER

Attorneys for Plaintiff

Simon J. Pinhas, M.D.

CALIFORNIA CODE OF CIVIL PROCEDURE

SECTION 1094.5

“(a) Where the writ is issued for the purpose of

inquiring into the validity of any final administrative

order or decision made as the result of a proceeding in

which by law a hearing is required to be given, evidence is

required to be taken, and discretion in the determination

of facts is vested in the inferior tribunal, corporation,

board, or officer, the case shall be heard by the court

sitting without a jury. All or part of the record of the

proceedings before the inferior tribunal, corporation,

board, or officer may be filed by the court. Except when

otherwise prescribed by statute, the cost of preparing the

record shall be borne by the petitioner. Where the peti-

tioner has proceeded pursuant to Section 68511.3 of the

Government Code and the Rules of Court implementing

that section and where the transcript is necessary to a

proper review of the administrative procecdings, the cost

of preparing the transcript shall be borne by the respon-

dent. Where the party seeking the writ has proceeded

pursuant to * * * Section 1088.5, the administrative

record shall be filed as expeditiously as possible, and may

be filed with the petition, or by the respondent after

payment of the costs by the petitioner, where required, or

as otherwise directed by the court. If the expense of

preparing all or any part of the record has been borne by

the prevailing party, the expense shall be taxable as costs.

(b) The inquiry in such a case shall extend to the

questions whether the respondent has proceeded without,

or in excess of jurisdiction; whether there was a fair trial;

and whether there was any prejudicial abuse of discretion.

Abuse of discretion is established if the respondent has

ADDENDUM “A”

not proceeded in the manner required by law, the order or

decision is not supported by the findings, or the findings

are not supported by the evidence.

(e) Where it is claimed that the findings are not

supported by the evidence, in case in which the court is

authorized by law to exercise its independent judgment

on the evidence, abuse of discretion is established if the

court determines that the findings are not supported by

the weight of the evidence. In all other cases, abuse of

discretion is established if the court determines that the

findings are not supported by substantial evidence in the

light of the whole record.

(d) Notwithstanding * * * subdivision (c), in cases

arising from private hospital boards or boards of direc-

tors of districts organized pursuant to The Local Hospi-

tal District Law, Division 23 (commencing with Section

32000) of the Health and Safty Code, abuse of discretion

is established if the court determines that the findings are

not supported by substantial evidence in the light of the

whole record. However, in all cases in which the petition

alleges discriminatory actions prohibited by Section 1316

of the Health and Safety Code, and the plaintiff makes a

preliminary showing of substantial evidence in support of

that allegation, the court shall exercise its independent

judgment on the evidence and abuse of discretion shall be

established if the court determines that the finding are

not supported by the weight of the evidence.

(e) Where the court finds that there is relevant evi-

dence which, in the exercise of reasonable diligence, could

not have been produced or which was improperly excluded

at the hearing before respondent, it may enter judgment

as provided in subdivision (f) * * * remanding the case

to be reconsidered in the light of that evidence; or, in

cases in which the court is authorized by law to exercise

its independent judgment on the evidence, the court may

admit the evidence at the hearing on the writ without

remanding the case.

(f) The court shall enter judgment either commanding

respondent to set aside the order or decision, or denying

the writ. Where the judgment commands that the order or

decision be set aside it may order the reconsideration of

the case in the light of the court’s opinion and judgment

and may order respondent to take such further action as

is specially enjoined upon it by law, but the judgment

shall not limit or control in any way the discretion legally

vested in the respondent.

(g) Except as provided in subdivision (h), the court in

which proceedings under this section are instituted may

stay the operation of the adminstrative order or decision

pending the judgment of the court, or until the filing of a

notice of appeal from the judgment or until the expiration

of the time for filing the notice, whichever occurs first.

However, no such stay shall be imposed or continued in

the court is satisfied that it is against the public interest;

provided that the application for the stay shall be accom-

panied by proof of service of a copy of the application on

the respondent. Service shall be made in the manner

provided by Title 5 (commencing with Section 405) of

Part 2 or Chapter 5 (commencing with Section 1010) of

Title 14 of Part 2. If an appeal is taken from a denial of

the writ, the appeal is taken. However, in cases where a

stay is in effect at the time of filing the notice f appeal, the

stay shall be continued by operation of law for a period of

20 days from the filing of the notice. If an appeal is taken

from the granting of the writ, the order or decision of the

agency is stayed pending the determination of the appeal

unless the court to which the appeal is taken shall other-

wise order. Where any final administrative order or deci-

sion is the subject of proceedings under this section, if the

petition shall have been filed while the penalty imposed is

in full foree and effect, the determination shall not be

considered to have become moot in cases where the

penalty imposed by the administrative agency has been

completed or complied with during the pendency of the

proceedings.

(h) (J) The court in which proceedings under this

section are instituted may stay the operation of the

administrative order or decision of any licansed hospital

or any state agency made after a hearing required by

statute to be conducted under the provisions of the

Administrative Procedure Act, as set forth in Chapter 5

(commencing with Section 115000) of Part 1 of Division 3

of Title 2 of the Government Code, conducted by the

agency itself or an administrative law judge on the staff of

the Office of Administrative Hearings pending the judg-

ment of the court, or until the filing of a notice of appeal

from the judgment or until the expiration of the time for

filing the notice, whichever occurs first. However, the stay

shall not be imposed or continued unless the court is

satisfied that the public interest will not suffer and that

the licensed hospital or agency is unlikely to prevail

ultimately on the merits; and provided further that the

application for the stay shall be accompanied by proof of

service of a copy of the application on the respondent.

Service shall be made in the manner provided by Title 5

(commencing with Section 405) of Part 2 or Chapter 5

(commencing with Section 1010) of Title 14 of Part 2.

(2) The standard set forth in this subdivision for

obtaining a stay shall apply to any administrative order

or decision of an agency which issued licenses pursuant to

Division 2 (commencing with Section 500) of the Busi-

ness and Professions Code or pursuant to the Osteopathic

Initiative Act or the Chiropractic Initiative Act. With

respect to orders or decisions of other state agencies, the

standard in this subdivision shall apply only when the

agency has adopted the proposed decision of the adminis-

trative law judge in its entirety or has adopted the

proposed decision but reduced the proposed penalty pur-

suant to subdivision (b) of Section 11517 of the Govern-

ment Code; otherwise the standard in subdivision (g)

shall apply.

(3) If an appeal is taken from a denial of the writ, the

order or decision of the hospital or agency shall not be

stayed except upon the order to which the appeal is taken.

However, in cases where a stay is in effect at the time of

filing the notice of appeal, the stay shall be continued by

operation of law for a period of 20 days from the filing of

the notice. If an appeal is taken from the operation of law

for a period of 20 days from the filing of the notice. If an

appeal is taken from the granting of the writ, the order or

decision of the hospital or agency is stayed pending the

granting of the writ, the order or decision of the hospital

or agency is stayed pending the determination of the

appeal unless the court to which the appeal is taken shal!

otherwise order. Where any final administrative order or

decision is the subject of proceedings under this section,

if the petition shall have been filed while the penalty

imposed is in full foree and effect, the determination shall

not be considered to have become moot in cases where the

penalty imposed by the administrative agency has been

completed or complied with during the pendency of the

proceedings.”

ö '

CALIFORNIA EVIDENCE CODE SECTIONS 1156

AND 1157

“§ 1156. (a) In-hospital medical or medical-dental

staff committees of a licensed hospital may engage in

research and medical or dental study for the purpose of

reducing morbidity or mortality, and may make findings

and recommendations relating to such purpose. Except as

provided in subdivision (b), the written records of inter-

views, reports, statements, or memoranda of such in-

hospital medical or medical-dental staff committees relat-

ing to such medical or dental studies are subject to

Sections 2016 to 2036, inclusive, of the Code of Civil

Procedure (relating to discovery proceedings) but, sub-

ject to subdivisions (e) and (d), shall not be admitted as

evidence in any action or before any administrative body,

agency, or person.

(b) The disclosure, with or without the consent of the

patient, of information concerning him to such in-hospital

medical or medical-dental staff committee does not make

unprivileged any information that would otherwise be

privileged under Section 994 or 1014; but, notwithstand-

ing Sections 994 and 1014, such information is subject to

discovery under subdivision (a) except that the identity

of any patient may not be discovered under subdivision

(a) unless the patient consents to such disclosure.

(e) This section does not affect the admissibility in

evidence of the original medical or dental records of any

patient.

(d) This section does not exclude evidence which is

relevant evidence in a criminal action.”

ADDENDUM “B”

„ —B . . S n 9

.. — ee ii i ti tl i me i i i Ml el i, i a ee eee ee

—— —ũ—

91157. Proceedings and records of medical, medical -

~ dental, podiatric, registered dietitian, psychological or

veterinary staff review committees; local medical, dental,

dental hygienist, podiatric, dietetic, veterinary, chiroprac-

tie society, or state or local psychological review

committees.

(a) Neither the proceedings nor the records or organ-

ized committees of medical, medical-dental, podiatric,

registered dietitian, psychological or veterinary staffs in

hospitals having the responsibility of evaluation and im-

provement of the quality cf care rendered in the hospital,

or medical or dental review or dental hygienist review or

chiropractic review or podiatrie review or registered dieti-

tian review or veterinary review committees of local medi-

eal, dental, dental hygienist, podiatric, dietetic,

veterinary, or chiropractic societies, or psychological re-

view committees of state or local psychological associa-

tions or societies having the responsibility of evaluation

and improvement of the quality of care, shall be subject to

discovery.

(b) Except as hereinafter provided, no person in at-

tendance at a meeting of any of those committees shall be

required to testify as to what transpired at that meeting.

(e) The prohibition relating to discovery or testimony

does not apply to the statements made by any person in

attendance at * * * a meeting of any of those committees

who is a party to an action or proceeding the subject

matter of which was reviewed at that meeting, or to any

person requesting hospital staff privileges, or in any

action against an insurance carrier alleging bad faith by

the carrier in refusing to accept a settlement offer within

the policy limits.

(d) The prohibitions * * * in this section do not apply

to medical, dental, dental hygienist, podiatrie, dietetic,

psychological, veterinary or chiropractic society commit-

tees that exceed 10 percent of the membership of the

society, nor to any of those committees if any person

serves upon the committee when his or her own conduct of

practice is being reviewed.

(e) The amendments made to this section by Chapter

1081 of the Statutes of 1983, or at the 1985 portion of the

1985-86 Regular Session of the Legislature, do not ex-

elude the discovery or use of relevant evidence in a

criminal action.”

wT r N ˙—˙.»⁹⁰ w

CALIFORNIA CIVIL CODE SECTION 43.7

“(b) There shall be no monetary liability on the part

of, and no cause of action for damages shall arise against,

any professional society, any member of a duly appointed

committee of a medical specialty society, or any member

of a duly appointed committee of a state or local profes-

sional society, or duly appointed member of a committee

of a professional staff of a licensed hospital (provided the

professional staff operates pursuant to written bylaws

that have been approved by the governing board of the

hospital), for any act or proceeding undertaken or per-

formed within the scope of the functions of any such

committee which is formed to maintain the professional

standards of the society established by its bylaws, or any

member of any peer review committee whose purpose is to

review the quality of medical, dental, dietetic, chiroprac-

tie, optometrie, or veterinary services rendered by physi-

cians and surgeons, dentists, dental hygienists,

trists, veterinarians, or psychologists which committee is

composed chiefly of physicians and surgeons, dentists,

dental hygienists, podiatrists, registered dietitians, chiro-

practors, optometrists, veterinarians, or psychologists for

any act or proceeding undertaken or performed in review-

ing the quality of medical, dental, dietetic, chiropractic,

optometrie, or veterinary services rendered by physicians

and surgeons, dentists, dental hygienists, podiatrists,

narians, or psychologists or any member of the governing

board of a hospital in reviewing the quality of medical

services rendered by members of the staff if such profes-

sional society, committee, or board member acts without

malice, has made a reasonable effort to obtain the facts of

ADDENDUM “C”

the matter as to which he, she, or it acts, and acts in

reasonable belief that the action taken by him, her, or it is

warranted by the facts known to him, her, or it after such

reasonable effort to obtain facts. ‘Professional society’

ineludes legal, medical, psychological, dental, dental hy-

giene, dietetic, accounting, optometrie, podiatric, pharma-

ceutie, chiropractic, physical therapist, veterinary,

lieensed marriage, family, and child counseling, licensed

clinical social work, and engineering organizations having

as members at least a majority of the eligible persons or

lieentiates in the geographic area served by the particular

society.

‘Medical specialty society’ means an organization hav-

ing as members at least 25% of the eligible physicians

within a given professionally recognized medical specialty

in the gecgraphie area served by the particular society.

(d) There shall be no monetary liability on the part of,

and no cause of acti or damages shall arise against,

any physician and podiatrist, chiropractor, or

attorney who is a member of an underwriting committee

of an interindemnity or reciprocal or interinsurance ex-

change or mutual company for any act or proceeding

undertaken or performed in evaluating physicians and

surgeons, podiatrists, chiropractors, or attorneys for the

writing of professional liability insurance, or any act or

proceeding undertaken or performed in evaluating physi-

cians and surgeons or attorneys for the writing of an

interindemnity, reciprocal, or interinsurance contract as

specified in Section 1280.7 of the Insurance Code, if the

tor, or attorney acts without malice, has made a reasona-

ble effort to obtain the facts of the matter as to which he

or she acts, and acts in reasonable belief that the action

taken by him or her is warranted by the facts known to

him or her after reasonable effort to obtain the facts.

(e) This section shall not be construed to confer immu-

nity from liability on any quality assurance committee

established in compliance with Section 4070 and 5624 of

the Welfare and Institutions Code or hospital. In any case

in which, but for the enactment of the preceding provi-

sions of this section, a cause of action would arise against

a quality assurance committee established in compliance

with Sections 4070 and 5624 of the Welfare and Institu-

tions Code or hospital, such cause of action shall exist as

if the preceding provisions of this section had not been

enacted.”

——— VS Se SO lee

{SUMMIT HEALTH LTD. LETTERHEAD

DELETED]

CONFIDENTIAL

January 26, 1987

Simon Pinhas, M.D.

9033 Wilshire Boulevard, Suite 206

Beverly Hills, CA 90211

Dear Dr. Pinhas:

It is our pleasure to submit this letter to you as a result

of our negotiations, representing the understanding and

agreements made between Midway Hospital Medical

Center (hereafter referred to as “Hospital”) and Simon

Pinhas, M.D. (hereafter referred to as Doctor). When

our respective duly authorized signatures are affixed

hereto, the terms of this Agreement shall become binding

upon Hospital and Doctor for the period specified.

Doctor shall apply for, obtain and maintain medical

staff membership and privileges at Hospital appropriate

to the conduct of his practice during the term of this

Agreement. Such membership (or temporary membership

pending completion of staff application requirements), is

to be obtained prior to January 1, 1987.

Doctor shall at all times be and act as an independent

contractor with respect to all duties and obligations

devolving upon him under this Agreement. Hospital shall

neither have nor exercise any control over the methods by

which Doctor performs his work. The sole interest and

responsibility of Hospital with respect to the manner in

which Doctor performs his work is to assure that the

quality of care is provided in a competent, efficient and

EXHIBIT “A”

satisfactory manner in accordance with the standards of

medical practice in the State of California. Doctor agrees

that the standards observed in his medical practice and

related activities shall be subject to the bylaws, rules and

regulations applying to the medical staff of the Hospital

and to the peer review functions of the medical staff and

review functions of the Hospital’s Board of Directors.

Doctor shall comply with all applicable provisions of law

and other rules and regulations of any and all governmen-

tal authorities relating to ensure and regulation of physi-

cian and hospitals.

Doctor agrees to accept the appointment as Summit

Nursing Home Liaison with the following duties and

responsibilities concurrent with the position.

1. To act as Summit Nursing Home Liaison at the

Hospital.

2. To offer in-service educational programs to

Hospital staff as appropriate and requested by the in-

service Coordinator of the Hospital.

3. To provide at least one continuing medical

education program to the general staff bi-annually.

4. To submit quarterly reports to Hospital Ad-

ministration concerning the progress and develop-

ment of the Summit Nursing Home Liaison at the

Hospital.

5. To offer professional guidance to Hospital Ad-

ministration for the selection of appropriate capital

equipment purchases for the Summit Nursing Home

Liaison Program.

6. To inform Hospital of any new advances in the

care and treatment of Ophthalmology patients as

appropriate.

7. To participate in quality of care studies as may

be requested by the Hospital Quality Assurance

Committee.

In consideration for the administrative, educational

and related services required of and provided by Doctor

and in consideration for his abiding by all other provi-

sions of this Agreement, Hospital will compensate Doctor

at the rate of $3,000.00 per month for the period of

January 1, 1987 through January 1, 1988 for a total of

$36,000 for the twelve-month period.

Because Hospital has entered into this Agreement in

reliance on the personal abilities of Doctor, he may not

assign any of his rights or delegate any of his duties

arising under this Agreement.

This Agreement shall be terminable by either party,

without cause, upon thirty (30) days written notice. In

the event of termination, payments owed to Doctor pursu-

ant to this Agreement, if any, will be prorated.

This Agreement shall terminate twelve months after

the date of January 1, 1987, unless sooner terminated

with notice as provided above, or unless terminated by

Hospital, without notice, in any of the following events:

(a) If Doctor ceases to be duly licensed and au-

thorized to practice medicine and surgery in Califor-

nia; or

(b) If Doctor fails to maintain membership on the

Medical Staff of the Hospital; or

(e) If Doctor fails to appropriately carry out his

duties and responsibilities as Summit Nursing Home

Liaison.

We hope that these understandings and agreements are

in accord with our negotiations and are acceptable to you.

If this Agreement meets with your approval, please sign

on the line provided below and return for final execution.

Sincerely,

MIDWAY HOSPITAL MEDICAL

CENTER

By:

Philip H. Conen

Executive Director

(“Hospital”)

Accepted by:

Simon Pinhas, M.D.

(“Doetor’’)

[MIDWAY HOSPITAL MEDICAL CENTER

LETTERHEAD DELETED]

April 13, 1987

Simon Pinhas, MD

9033 Wilshire Blvd. #206

Beverly Hills, CA 90211

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Dear Doctor Pinhas:

In accordance with the Bylaws of the Medica! Staff of

Midway Hospital Medical Center, Article VII, Section 2,

you are hereby advised of the Summary Suspension of all

your medical staff privileges; including admitting and

surgical.

This suspension shall become effective on April 13,

1987, at 3:00 p.m. The Medical Executive Committee of

Midway Hospital Medical Center shall convene to review

and consider this action within 10 days as specified in the

Bylaws.

This is a result of Medical Staff review of your medical

records, with consideration as to the questions raised

regarding: indications for surgery; appropriateness of

surgical procedures in light of patient’s medical eondi-

tion; adequacy of documentation in medical records; and

ongoing pattern of identified problems.

EXHIBIT B“

A copy of Article VII and Article VIII are enclosed for

your information.

Sincerely,

Arthur N. Lurvey, MD

Chief of Staff

Mitchell Feldman

Regional Vice-President

[MIDWAY HOSPITAL MEDICAL CENTER

LETTERHEAD DELETED]

April 20, 1987

Simon Pinhas, MD

9033 Wilshire Blvd. #206

Beverly Hills, CA 90211

HAND DELIVERED AND BY

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Dear Doctor Pinhas:

Thank you for your statements at the Medical Execu-

tive Committee meeting held on April 17, 1987.

Please be advised that the Medical Executive Commit-

tee has reviewed and considered the action taken and

upheld the summary suspension with a recommendation

to terminate your medical staff privileges at Midway

Hospital Medical Center. The Board of Directors of

Midway Hospital Medical Center has concurred with

their recommendation.

Pursuant to the Medical Staff Bylaws, Article VIII, you

are entitled to a hearing as outlined in Section Ia. You

have ten days from the date of receipt of this letter to

request a hearing by a Judicial Review Committee. Said

request shall be by written notice send by certified mail to

the Chief Executive Director of the Hospital. If you fail to

request a hearing within the specified time frames the

recommended action shall become effective immediately.

EXHIBIT “C”

Enclosed is a copy of Article VIII. Please be advised,

per the letter dated April 13, 1987, that summary suspen-

sion of all privileges includes admitting and surgical

privileges.

Sincerely,

Arthur N. Lurvey, MD

Chief of Staff

MIDWAY HOSPITAL MEDICAL CENTER

MEDICAL STAFF BYLAWS

PREAMBLE

WHEREAS, Midway Hospital Medical Center is an

investor-owned Hospital organized under the laws f the

State of California; and

WHEREAS, its purpose is to serve as a general acute

eare hospital providing patient care, education, and re-

search; and

WHEREAS, it is recognized that one of the aims and

goals of the medical staff is to strive for quality patient

eare in the hospital, that the medical staff must work with

and is subject to the ultimate authority of the board, and

that the cooperative efforts of the medical staff, adminis-

tration, and board are necessary to fulfill the hospital's

aims and goals in providing quality care to its patients;

and

THEREFORE, the physicians, dentists, and podia-

trists practicing in this hospital hereby organize them-

selves into a medical staff in conformity with these

bylaws.

DEFINITIONS

1. HOSPITAL means Midway Hospital Medical

Center of Los Angeles, California.

2. BOARD OF DIRECTORS or BOARD means the

governing body of the corporation.

3. EXECUTIVE DIRECTOR is the Chief Executive

Officer of the Hospital designated by the Board of Diree-

tors to be responsible for all aspects of the hospital

FXHIBIT “D” —

tion. In the absence of the EXECUTIVE DIRECTOR,

the Associate Executive Director shall assume all the

responsibilities of the Executive Director.

4. MEDICAL STAFF means the formal organization

of all licensed physicians, dentists and podiatrists who

are privileged to attend patients in the hospital.

5. MEDICAL EXECUTIVE COMMITTEE or MEC

means the executive committee of the medical staff.

6. CLINICAL PRIVILEGES or PRIVILEGES

means the permission granted to a practitioner to render

specific diagnostic, therapeutic, medical, dental, podia-

trie, or surgical services.

7. PHYSICLAN means any individual with an M.D. or

D. O. degree who is fully licensed to practice medicine in

all its phases.

8. PRACTITIONER means, unless otherwise ex-

pressly limited, any physician, dentist, or podiatrist ap-

plying for, or exercising clinical privileges in this

hospital.

9. SPECIFIED PROFESSIONAL PERSONNEL

means an individual, other than a licensed physician,

dentist, or podiatrist, who exercises independent judg-

ment within the areas of his professional competence and

who is qualified to render direct or indirect medical,

dental, podiatrie, or surgical care under the supervision

of a practitioner who has been accorded mrivileges to

provide such care in the hospital.

10. MEDICAL STAFF YEAR means the period from

January lst to December 31st.

II. EX OFFICIO means service as a member of a

body by virtue of an office or position held and, unless

otherwise expressly provided, means without voting

rights.

12. SPECIAL NOTICE means written notification

sent by certified or registered mail, return receipt

requested.

13. MEDICO-ADMINISTRATIVE OFFICER means

a practitioner engaged by the hospital on a full-time or

part-time basis to perform duties which, although par-

tially administrative, include clinical responsibilities.

14. As used in the Bylaws, the masculine gender in-

eludes both masculine and feminine.

ARTICLE I

NAME

The name of this organization shall be Medical Staff of

M.:dway Hospital Medical Center.

ARTICLE VIII

HEARING AND APPEAL PROCEDURES

Section 1. REQUEST FOR HEARING

a. Notice of Decision

In all cases in which a practitioner is entitled to a

hearing as set forth herein, he shall have ten (10) days

following the date of receipt of written notice of the

action giving rise to the right to the hearing, sent regis-

tered or certified mail, within which to request a hearing

by a judicial review committee hereinafter referred to.

Said request shall be by written notice sent certified or

registered mail to the Chief Executive Officer. In the

event the applicant member does not request a hearing

within the time and in the manner hereinabove s«t forth,

he shall be deemed to have waived his right to a hearing

and to any appellate review to which he might otherwise

have been entitled and to have accepted the action in-

volved, and it shall thereupon become effective

immediately.

b. Grounds for Hearing

Any one or more of the following actions shall consti-

tute grounds for a hearing:

(1) Denial of medical staff membership;

(2) Denial of requested advancement in medical

staff membership;

(3) Denial of medical staff reappointment;

(4) Demotion to lower staff reappointment;

(5) Suspension to lower staff category;

(6) Expulsion from medical staff membership;

(7) Denial of requested privileges;

(8) Reduction in privileges;

(9) Suspension of privileges;

(10) Termination of privileges;

(11) Denial of inerease in privileges.

e. Time and Place for Hearing

Upon receipt of a request for hearing, the Chief Execu-

tive Officer shall deliver such request to the Chief of Staff

or designee. The Chief Executive Officer or his designee

shall, within ten (10) days after receipt of such request,

schedule and arrange for a hearing. The Chief Executive

Officer or his designee shall give notice to the affected

practitioner of the time, place, and date of the hearing.

of the hearing shall be within forty-five (45)

then in effect, the hearing shall be held as soon as the

arrangements may reasonably be made, but not to exceed

fifteen (15) days from the date of receipt of the request

The notice of hearing shall state in concise language

the acts of omissions with which the practitioner is

charged, a list of any charts under question by chart

number or where the issue involves any of the actions set

out in Section 1,b. of Article VIII, the reasons for the

denial of the request of the applicant or medical staff

member.

e. Judicial Review Committee

When a hearing is requested, the Chief of Staff, with

the approval of the Medica! Executive Committee, shall

appoint a judicial review committee which shall be com-

posed of not less than five (5) members of the active

medical staff to act pursuant to this Article. The members

of the judicial review committee shall not have actively

participated in the consideration of the matter involved at

any previous level. Such appointment shall include desig-

nation of the chairman. Knowledge of the matter involved

shall not preclude a member of the active medica) staff

from serving as a member of the judicial review commit-

tee. In the event that it is not possible to appoint a fully

cal staff, the Medical Executive Committee may appoint

qualified physicians from the associate staff or physicians

outside the staff.

f. Postponements and Extensions

_ Postponements and extensions of time beyond the

times expressly permitted in these bylaws may be re-

quested by anyone but shall be permitted by the judicial

review committee only on a showing of good cause.

g. Decision of the Hearing Committee

Within thirty (30) days after final adjournment of the

hearing, except in the case of a medical staff member who

shall be under suspension and then within fifteen (15)

days, the judicial review committee shall render a deci-

sion which shall be delivered to the Medical Executive

Committee and to the Governing Board, such decision to

be accompanied by a written report, all other documenta-

tion, and the hearing record if prepared. The report shall

contain a concise statement of the reasons for the deci-

sion, and a copy of the report and decision shall be

delivered, by registered or certified mail, to the affected

practitioner.

h. Appeal

The decision of the judicial review committee shal! be

considered final, subject to the right of appeal as provided

in Seetion 3 (Appeal to Governing Board) of this Article.

Seetion 2. HEARING PROCEDURE

a. Personal Presence Mandatory

Under no cireumstances shal! the hearing be conducted

without the personal presence of the person requesting

the hearing unless he has waived such appearance or has

failed without good cause to appear after appropriate

notice. Such failure to appear shall be deemed to consti-

tute a waiver of the right to such appearance. This does

not waive the right to appeal to the Governing Board.

b. Representation

The affected practitioner shall be entitled to be accom-

panied by and/or represented at the hearing by a member

of the medical staff in good standing, except if the

member of the medical staff is also an attorney. Since the

hearings provided for in these bylaws are for the purpose

of intra-professional competency or conduct, neither the

person requesting the hearing, the Medical Executive

Committee, nor the Governing Board shall be represented

in any phase of the hearing or appeals procedure by an

attorney at law unless the hearing committee, in its

discretion, permits both sides to be represented by legal

counsel. The body whose decision prompted the hearing

shall appoint a representative from the medical staff to

present its recommendations in support thereof and to

examine witnesses.

e. The Presiding Officer

The presiding officer at the bearing shall be the chair-

man or the hearing officer if one is appointed. The presid-

ing officer shall act to insure that all participants in the

hearing have a reasonable opportunity to be heard, and to

present all oral and documentary evidence, and that

decorum is maintained. He shall determine the order or

procedure during the hearing and shall have the authority

and discretion in accordance with these bylaws to make

all rulings on questions which pertain to matters of law

and to the admissibility of evidence.

d. The Hearing Officer

At the request of the person who requested the hearing,

the Executive Committee, the Judicial Review Committee,

or on its own initiative, the Governing Board may appoint

a hearing officer who may be an attorney at law to preside

at the hearing. Such hearing officer may be legal counsel

to the hospital provided he acts during the hearing in

accord with this Article. He must not act as a prosecuting

officer, as an advocate for the hospital, Governing Board,

or Medical Executive Committee, or body whose action

prompted the hearing. If requested by the Judicial Re-

view Committee, he may participate in the deliberation of

such body and be a legal advisor to it, but he shall not be

entitled to vote.

e. Record of Hearing

The Judicial Review Committee must maintain a record

of the hearing by one of the following methods: a short-

hand reporter present to make a record of the hearing or

a recording. The cost of such shorthand reporter's appear-

ance shall be borne by the hospital and the party request-

ing the hearing, provided the cost of transcribing the

record of the hearing shall be borne by the party request-

ing the transcription. The hearing committee may, but

shall not be required to, order that oral evidence shall be

taken only on oath or affirmation administered by any

person designated by such body and entitled to notarize

documents in the State of California.

f. Rights of the Parties

At a hearing, both the affected practitioner and the

body whose action prompted the hearing shall have the

following rights: to call and examine witnesses, to intro-

duce exhibits, to cross-examine any witness on any matter

relevant to the issues, to impeach any witness and to

rebut any evidence. If the affected practitioner does not

testify in his own behalf, he may be called and examined

as if under cross-examination. The presiding officer in the

exercise of his discretion may limit testimony that is

cumulative.

g. Admissibility of Evidence

The hearing shall not be conducted according to rules

of law relating to the examination of witnesses or presen-

tation of evidence. Any relevant evidence shall be admit-

ted 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 written argument, and the judicial

review committee may request such a writing to be filed

following the close of the hearing. The judicial review

committee may interrogate the witnesses or call addi-

tional witnesses if it deems it appropriate.

h. Official Notice

The presiding officer shall have the discretion to take

official notice of any matters either technical or scientific,

relating to the issues under consideration which could

have been judicially noticed by the courts of this State.

Participants in the hearing shall be informed of the

matters to be officially noticed or to refute the noticed

matters by evidence or by written or oral presentation of

authority. Reasonable or additional time shall be granted,

if requested, to present written rebuttal of any evidence

admitted on official notice.

i. Basis of Decision

The decision of the hearing committee shall be based on

the evidence produced at the hearing. This evidence may

consist of the following:

1) Oral testimony of witnesses;

2) Briefs or written arguments presented in con-

nection with the hearing;

3) Any material contained in the medical staff's

personnel files regarding the person who requested

the hearing;

4) Any and all applications, references and accom-

panying documents;

5) All officially noticed matters;

6) Any other evidence deemed admissible under

Section 2,g. of this Article.

j. Burden of Proof

In all eases specified in Section I. b. of this 1

shall be incumbent on the person who requested —

hearing to initially come forward with evidence in .

support. Thereafter, the burden shall shift to the body o

committee whose decision prompted the hearing to come

forward with evidence in support of its action or decision.

In all cases in which a hearing is conducted under this

Article, after all the evidence has been submitted by bo .

sides, the Judicial Review Committee shall op gore

the person who requested the hearing unless it +

he or she has proved by a preponderance of the evi lence,

that the decision that prompted the hearing was 1 *

or unreasonable, and should not be sustained by the

evidence.

k. Adjournment and Conclusion

The presiding officer may adjourn the hearing —

reconvene the same at the convenience of the ——

without special notice. Upon conclusion of the presen 4

tion of oral and written evidence, the hearing shall

closed. The Judicial Review Committee shall eo

within the time limit specified in Section 1,g. of this

Article, outside of the presence of any other person,

conduct its deliberations and render a decision and ac-

companying report as provided by Section 1 of this

Article.

Section 3. APPEAL TO GOVERNING BOARD

a. Time for Appeal

Within ten (10) days after receipt of the decision of the

Judicial Review Committee, either the person who re-

quested the hearing or the body whose decision prompted

the hearing may request an appellate review by the Gov-

erning Board. The request shall be delivered to the

Governing Board in writing and delivered either in per-

son or by certified or registered mail. If such appellate

review is not requested within such period, both sides

shall be deemed to have accepted th* action involved and

it shall thereupon become final and shall be effective

immediately. The written request for appeal shall also

inelude a brief statement as to the reasons for appeal.

b. Grounds for Appeal

The grounds for appeal from the hearing shall be:

1) substantial failure of the hearing committee, Medical

Executive Committee, or Governing Board 0 comply with

the procedures required by this Article or by the hospital

medical staff bylaws in the conduct of hearing and deci-

sions upon hearing so as to deny a fair hearing; 2) action

taken arbitarily or capriciously.

e. Time, Place, and Notice

In the event of any appeal to the Governing Board as

set forth in the preceding subsection, the Governing

Board shall, within ten (10) days after receipt to such

notice of appeal, schedule a date for such review. The

Governing Board through the Executive Director, shall

notify the affected practitioner by certified or registered

mail of the time, place, and date of the appellate review.

The date of llate review shall not be less than fifteen

— oe eee Seon nae (45) days from the

date of receipt of the request for appellate review, pro-

vided, however, that when a request for appellate review

e —

in effeet, the llate review as soon as

— —— anid ant —

fifteen (15) days from the date of receipt of the request

for appellate review unless additional time is required to

complete the record. The time for appellate review may be

extended by the chairman of the Governing Board for a

good cause.

d. Hearing Officer

The Governing Board may appoint a hearing officer to

preside over its hearing who may be the same or a

different hearing officer as the one who presided over the

hearing of the Judicial Review Committee. The same rules

set forth above with respect to the hearing officer for the

Judicial Review Committee shall apply to the hearing

officer for the hearing before the Governing Board.

e. Nature of Appellate Review

The proceedings by the governing Board shall be in the

nature of an appellate hearing based upon the record of

the hearing before the Judicial Review Committee, pro-

vided that the Governing Board may, in its sole disere-

tion. aecept additional oral or written evidence subject to

the same rights of crossexamination or confrontation

provided at the original hearing. Each party shall have

the right to present, within ten (10) days prior to the date

of the review, a written statement in support of his

position on appeal, and in its sole discretion, the Gov-

erning Board may allow each party or representative to

personally appear and make oral argument. At the eonelu-

sion of oral argument, if allowed, the Governing Board

may thereupon at a time convenient to itself conduct

deliberations outside the presence of the appellant and

respondent and their representatives. The Governing

Board may affirm, modify, or reverse the decision of the

Judicial Review Committee.

f. Final Decision

Within ten (10) days after the conclusion of the appel-

late review, the Governing Board shall render a final

decision in writing and shall deliver copies thereof to the

affected practitioner and to the Medical Executive Com-

mittee in person or by certified or registered mail. The

final decision of the Governing Board following the ap-

peal shall be effective immediately and shall not be sub-

ject to further review.

g. Right to One Hearing Only

Except as otherwise provided in this Article, an af

fected practitioner shall be entitled as a matter of right to

only one hearing before the Judicial Review Committee

and one hearing before the Governing Board on any

single matter which may be the subject of an appeal

without regard to whether such subject is the result of

action by the Medical Executive Committee or the Gov-

erning Board, or a combination of acts of such bodies.

ARTICLE IX

SPECIFIED PROFESSIONAL PERSONNEL

Section 1. APPOINTMENT AND ASSIGNMENT

Specified professional personnel, sometimes referred to

as “allied health professionals”, may be authorized by the

medical staff to perform their professional services within

the hospital. They shall be individually authorized and

assigned to an appropriate clinical department and shall

carry out their professional activities under the supervi-

sion of the chairman of the department, or the appropri-

subject to departmental policies and procedures.

Section 2. QUALIFICATIONS

a. The general qualifications to be required of

members of each eategory of specified professional

personnel shal] be determined by the appropriate

department concerned. The chairman of the depart-

ment concerned shall submit a listing of such qualifi-

cations to the Medical Executive Committee for

approval.

b. Specified professional personnel shall not be

eligible for appointment of membership on the Medi-

eal Staff. nang Sete OS Se Se see

rights in any Specified Professional Personnel

receive or to maintain any privileges in the Hospital.

The provisions of Article VII and Article III of these

bylaws shall not apply to specified professional

personnel.

e. Each individual in this category shall have an

appropriate application on file, and their department

shall review and approve such. The application shall

inelude evidence of licensure, training, and documen-

tation of malpractice insurance.

—

[LAWRENCE SILVER A LAW CORPORATION

LETTERHEAD DELETED]

April 30, 1987

DELIVERED BY TELECOPIER,

HAND DELIVERED, AND

MAILED VIA CERTIFIED MAIL —

RETURN RECEIPT REQUESTED

Arthur N. Lurvey, M.D.

Chief of Staff

Midway Hospital Medical Center

5925 San Vicente Boulevard

Los Angeles, CA 90019

Re: Medical Staff Privileges

Dear Dr. Lurvey:

Please be advised that I represent Simon J.

Pinhas, M.D. and I am authorized on his behalf to

demand a hearing upon his summary suspension of medi-

eal staff privileges from Midway Hospital Medical Center

(“Midway Hospital”) and the Medical Staff of Midway

Hospital Medical Center (“Medical Staff’). Dr. Pinhas

demands that the hearing and the notice of charges be in

conformity with the rights afforded to Dr. Pinhas by the

Constitutions of the State of California and of the United

States, the laws of the State of California, the contractual

obligations imposed upon Midway Hospital and the Medi-

eal Staff, and to the extent that they are not inconsistent

therewith, the Bylaws of the Medical Staff.

1. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests full disclosure of all charges against him with

sufficient particularity that he may investigate and rebut

those charges.

EXHIBIT “E”

2. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

demands that all proceedings be reported by a certified

shorthand reporter.

3. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests access to the originals and a photocopy of all

charts in their full, complete, and unaltered state, which

have been used or considered in connection with bringing

charges against Dr. Pinhas.

4. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests a hearing officer who is a retired judge of the

Superior Court, or, in the alternative, someone whose

impartiality eannot be questioned. Further, Dr. Pinhas

requests that the identity of the hearing officer be made

known as soon as possible so that pre-hearing motions

may be submitted to him and determine in advance of the

hearing, including, but not limited to, motions to compel

compliance with the demands herein made.

5. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests the minutes of any meeting of any members of

the staff of Midway Hospital or its Medical Staff in

connection with considering to bring and the bringing of

any charges against him.

6. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests all writings, as that term is defined by See-

tion 250 of the California Evidence Code, and all copies

which in any way are different therefrom, regarding any

communication regarding his medical staff privileges or

his performance as a physician at Midway Hospital.

7. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests all writings which are exculpatory to any charges

or any sanction which might be sought to be imposed.

8. Pursuant to all of Dr. Pinhae’s rights, Dr Pinhas

requests a list of all witnesses to any of the wents

involving the charges whether or not they are intended to

be called at the time of the hearing.

9. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests a list of all witnesses who the Hospital intends to

eall at the time of the hearing.

10. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests a written summary of the direct testimony of all

witnesses who will be called in the proceedings against

him.

11. Pursuant to all of Dr. Pinhas’s richts, Dr. Pinhas

requests the opportunity to interview all witnesses who

may be called as witnesses against him.

12. Pursuant to all of Dr. Pinhas's rights, Dr. Pinhas

requests the assurance that the Hospital shall require its

employees who he designates and the Medical Staff shal!

require that all of its members, as required by the Bylaws,

be available to testify, if so requested by Dr. Pinhas, at

the hearing in this matter.

13. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests that ail reports of expert witnesses to be called

by the Hospital be submitted to him no less than 10 days

prior to their being called as witnesses and that the

Hospital be precluded from calling any expert witness if

such report is not made available.

14. Pursuant to all of Dr. Finhas’s rights, Dr. Pinhas

requests a hearing panel composed of physicians not

members of the staff of Midway Hospital and that all

members of the hearing panel be free of bias, prejudice,

prejudgment and not possessed of any information re-

garding any of the charges in advance of the hearing.

15. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests the identity of the members of the hearing panel

be disclosed to him as soon as possible so that he may

determine whether or not to file motions for disqualifica-

tions in advance of the hearing date.

16. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests that the hearing panel be instructed immediately

upon selection that they are not to discuss this matter

with any person, including, but not limited to, the person

or persons who will represent the Hospital or the Medical

Staff or any witnesses that the Hospital may call. In the

event that such discussion is had with them, they are

required to report ic immediately to Dr. Pinhas or his

counsel and possibly volunteer their disqualification from

the case.

17. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests that all witnesses who are intended to be called

at the hearing be instructed not to discuss the matter with

any members of the hearing panel.

18. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests the right to be represented by a physician who is

also an attorney at the hearing. He requests that this

physician who is also an attorney present and argue

motions on his behalf, examine and cross-examine wit-

nesses, may introduce evidence, and fully and completely

participate in the hearing and protect the record.

19. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests that he be represented by an attorney at the

hearing. He request that this attorney present and argue

motions on his behalf, examine and cross-examine wit-

nesses, may introduce evidence, and fully and completely

participate in the hearing and protect the record.

20. Pursuant to all of his rights, in the event that

either or both of the above requests are denied, he request

that his attorney appear in the hearings to make all legal

arguments to protect his record, introduce evidence, and

to cross-examine witnesses, or in some fashion be permit-

ted to participate n the hearing.

21. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

requests that in the event that the above three requests

are denied, he requests the opportunity to have his attor-

ney sit in the hearing and advise him during the course of

proceedings without actual participation in the hearing.

22. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

demands production of all communications with the De-

partment of Health Services or any governmental agency

regarding his practice of medicine.

23. Pursuant to all of Dr. Pinhes’s rights, Dr. Pinhas

demands production of all contracts between Midway

Hospital or Summit, or any affiliates, parents or subsidi-

aries, with any member of the Medical Staff for purposes

of determining bias, interest or for purposes of impeach-

ment or any other appropriate evidentiary purpose.

24. Pursuant to all of Dr. Pinhas s rights, Dr. Pinhas

demands the identification of all persons selected as a

hearing officer and all persons selected by the Hospital sit

on the panel so that he may have time to investigate their

impartiality, determine whether to conduct appropriate

voir dire examination, or to seek, other relief in connec-

tion with their appointment.

82 83

: with Mr. Kedsicleki of | [MIDWAY HOSPITAL MEDICAL CENTER

wuntuy 6 — this demand signed by me is LETTERHEAD DELETED)

timely and effective if served upon you (or a person in May 7, 1987

charge) at the Administrator's office at the Hospital or

delivered to you (or a person in charge) at your office, or

teleeopied to Mark Kadzielski at his office before mid- Simon Pinhas, MD

night, April 30, 1987. 9033 Wilshire Blvd. #206

Beverly Hills, CA 90211

Sincerely, 1 BY: CERTIFIED MAIL

HAND

DELIVERED:

Lawrence Silver (5/7/87)

ee: Arthur N. Larvey, M.D. (Hand Delivered) Dear Doctor Pinhas:

435 N. Roxbury, Suite 100 This letter is in response to your request for a hearing

Beverly Hills, CA 90210 at Midway Hospital Medical Center related to your sum-

Simon J. Pinhas, M.D. mary suspension and the recommendation to terminate

your medical staff membership. Pursuant to Article VIII,

Section Le., this hearing will be held at 6:30 p.m. on May

12, 1987 in the Pavilion Conference Room.

A Judicial Review Committee has been appointed by

the Chief of Staff. Its Chairman is Ellis Berkowitz, MD,

and its members are: John Hofbauer, MD; Jay Jordan,

MD: Debra Judelson, MD; Alan Kessler, MD; Dwight

Makoff, MD and Stephen Seiff, MD. These committee

members have been advised not to discuss this matter

with you or any other member of the Hospital's Medical

Staff.

The decisions to summarily suspend and to terminate

your membership at Midway Hospital Medical Center

were based on reviews of your patient records involving

ophthalmological surgeries conducted at this Hospital in

Mark Kadzielski, Esq.

EXHIBIT F.

1987. These reviews concluded that your conduct of pa-

tient care was below the acceptable standard of care in

this Hospital.

The specific charges that support this conclusion, and

the specifie charts that support these charges are as

follows:

1. JUDGMENT TO PROCEED WITH SURGERY

NOT WITHIN STANDARD OF CARE IN HOSPITAL.

A. No History and Physical on patient chart prior to

surgery:

Chart #7071027 Chart #7066244

Chart #7070713 Chart #7063199

Chart #7070489 Chart #7059728

Chart #7070403 Chart #7059574

Chart #7070179 Chart #7029896 /

Chart #7067615 2885069

B. Ineomplete Pre-Operative workup:

Chart #7087136 Chart #7075332

Chart #7084633 Chart #7073054

Chart #7084609 Chart #7072376

Chart #7084595 Chart #7070543

Chart #7083955 Chart #7070004

Chart #7082142 Chart #7069979

Chart #7081316 Chart #7068204

Chart #7079249 Chart #7067836

Chart #7078307 Chart #7066244

Chart #7078293 Chart #7065167

Chart #7078285 Chart #7065094

Chart #7078145 Chart #7063059

Chart #7078072 Chart #7062664

Chart #7075979 Chart #7059639

Chart #7075936 Chart #7059612

Chart #7075928 Chart #7057172

Chart #7075375 Chart #7051832

Chart #7087365

Chart #7087136

Chart #7084663

Chart #7084609

Chart #7083998

Chart #7082142

Chart #7081316

Chart #7079249

Chart #7078102

Chart #7075936

Chart #7075529

Chart #7072392

Chart #7072376

C. Surgery contraindicated by patients’ medical

condition:

Chart #7070446

Chart #7068204

Chart #7065183 /

2909006

Chart #7065094

Chart #7065035

Chart #7062664

Chart #7059639

Chart #7059612

Chart #7056915

Chart #7054459

Chart #7029896 /

2885069

2. FAILURE TO OBTAIN REQUIRED CONSENT

FOR PROCEDURE PERFORMED.

A. Lack of appropriate consent for procedure

performed:

Chart #7068204 Chart #7065086 /

Chart #7067674 2908727

Chart #7066244 Chart #7063318

B. Lack of informed consent for surgery:

Chart #7085788 Chart #7078129

Chart #7084099 Chart #7075456

Chart #7081936 Chart #7072422

Chart #7081928 Chart #7068182

Chart #7079397 Chart #7068107

Chart #7079389 Chart #7065019

Chart #7078293 Chart #7062699

Chart #7057172

C. No IntraOcular Lens Consent:

Chart #7084692 Chart #7065086 /

Chart #7084684 2908727

Chart #7083947 Chart #7063318

Chart #7082142 Chart #7062699

Chart #7079273 Chart #7062672

Chart #7072724 Chart #7062605

Chart #7070713 Chart #7062532

Chart #7070535 Chart #7059639

Chart #7067585 Chart #7057687

Chart #7066244 Chart #7057563

Chart #7065153 Chart #7057172

Chart #7065132 Chart #7029896 /

2885069

3. NO ASSISTANT AT SURGERY AS REQUIRED

BY MEDICAL STAFF BYLAWS:

Chart #7057644 Chart #7057563

Chart #7057636 Chart #7057555

Chart #7057628 Chart #7057547

The Judicial Review Committee has been polled with

regard to your requests for representation by counsel,

pursuant to Article VIII., Section 2.b. You are hereby

advised that the Committee has unanimously voted not to

permit either you or the Medical Staff to be represented

by an attorney at law at the hearing. You are entitled, as

that section indicates, to be represented by a member of

the Medical Staff in good standing. If you will be repre-

sented by a staff member, please inform the undersigned

of the identity of that person so that further communica-

tion regarding this matter can also be directed to that

person.

A Hearing Officer, Richard Posell, Esq., has been

appointed by the Governing Board. Mr. Posell is a part-

ner in the law firm of Shapiro, Posell & Close and is

experienced at conducting hearings of this type at hospi-

tals. A certified shorthand reporter has also been ordered

to maintain a record of the hearing.

If you wish to review the charts in question prior to the

hearing, please contact Peggy Farber RN, Director of

Quality Assurance at 932-5231 or 932-5022 to make these

arrangements. If copies of these records are requested,

arrangements can be made with Ms. Farber after you

have completed the appropriate Non-Disclosure Agree-

ment. Copies will be handled at your own expense.

The hearing will be conducted pursuant to the provi-

sions of Article VIII of the Midway Hospital Medical

Center Medical Staff Bylaws. Those Bylaws do not pro-

vide for pre-hearing discovery of any documents or infor-

mation related to the proceedings. Additionally, the

Hospital does not have subpoena power or other powers

to compel any one to testify at a medical staff hearing.

While the Medical Staff is not required under the

Bylaws to provide you with a list of witnesses it intends

to call at the hearing, the following is a list of those

persons who are currently expected to testify on behalf of

the Medical Staff at the hearing: Alan Friedman, MD;

Arthur Lurvey, MD; Jonathan Macy, MD; James Salz,

MD and Maurice Schmir, MD. the Medical Staff reserves

the right to add to this list, or delete from it at any time.

Please provide the undersigned with a list of your wit-

nesses as soon as possible.

Very truly yours,

Mitchell Feldman

Regional Vice-President

ec: Lawrence Silver, Esq.

. 89

JUDICIAL REVIEW COMMITTEE OF

MIDWAY HOSPITAL MEDICAL CENTER

In The Matter Of

SIMON J. PINHAS, M.D.

Respondent.

LAWRENCE SILVER

A LAW CORPORATION

9100 Wilshire Boulevard, Suite 360

Beverly Hills, California 90212

(213) 274-1530

LAWRENCE SILVER

Attorney for Plaintiff

Simon D. Pinhas, M. D.

RESPONDENT'S OBJECTIONS

TO THE NOTICE OF HEARING

Date: May 12, 1987, Time: 630 a.m.

COMES NOW Simon J. Piahas, M.D., Respondent,

appearing specially and without waiving any rights to

challenge the jurisdiction of this committee and other

Review Committee of his objections to the hearing date as

noticed herein. Respondent and his counsel in support

thereof allege the following facts to be true:

1. By letter dated April 13, 1987, Dr. Pinhas was

advised by Midway Hospital Medical Center (“Midway”)

that he was summarily suspended as of that date of all

leges. The letter stated that such action was the result of

a: “medical staff review of Dr. Pinhas s medical records,

EXHIBIT G“

with consideration as to the questions raised regarding:

indieation for surgery; appropriateness of surgical proce-

dures in light of patients medical condition; adequacy of

documentation in medieal records; and ongoing pattern of

identified problems.” (A copy of the April 13 letter is

attached hereto as Exhibit “1”.)

2. By the same letter, Dr. Pinhas was advised that the

Midway Medical Executive Committee would convene to

review and consider the action within 10 days.

3. On April 20, Dr. Pinhas, while present at Midway in

connection with other matters, was beckoned to attend

immediately — a meeting. He did so, and this meeting

turned out to be the Midway Medical Executive Commit-

tee (“Executive Committee”) meeting.

4. The Executive Committee requested that Dr.

Pinhas make a statement. Lacking notice, unprepared,

confused and without benefit of legal or fellow staff

advice, he did so briefly.

5. By letter dated April 20, 1987, Midway notified Dr.

Finllas that the Medieal Executive Committee had upheld

the summary suspension with a recommendation to termi-

nate his staff privileges at Midway. He was also informed

that the Midway Board of Directors had coneurred with

the Executive Committee's ecommendation. (A copy of

the April 20 letter is attached hereto as Exhibit “2”.)

6. In accordance with the Midway Medical Staff By-

laws, Dr. Pinhas requested a hearing by the Judicial

Review Committee by letter dated April 30, 1987. (A copy

of the April 30 letter is attached hereto as Exhibit

7. On May 7, 1987, counsel for respondent telephoned

counsel for Midway to determine the status of the notice

of hearing herein. Counsel for respondent was advised

that a letter representing such notice would be hand-

delivered that day.

8. On the same day, May 7, counsel for respondent

telephoned once again, after 5:00 p.m., to ascertain the

whereabouts of the notice of hearing. After 5:30 p.m., the

notice of hearing was delivered. (A copy of the May 7

letter is attached hereto as Exhibit 4)

9. The notice of hearing scheduled this matter to be

heard at 6:30 p.m. on May 12, 1987.

10. Respondent was thereby informed of the charges,

albeit inadequately, and allowed as notice only two busi-

11. Under these circumstances, proceeding with the

hearing as scheduled would not only work a hardship to

respondent, be detrimental to reasonable preparation, but

would also constitute an obvious deprivation of fair proce-

dure and due process.

12. The notice of hearing itself is deficient, lacking as

it does specificity and detail. Although the notice sets

forth what it labels “specifie charges” and lists “specific

charts it contends will support those charges, the

charges are rendered in broad, general terms.

13. The identified charts as of the date of this Objec-

tion, have not been made available, and are not available,

to respondent or his counsel. Approximately 128 charts

are identified, though some appear to be duplicates.

14. Furthermore, the “notice” does not provide the

name of the prosecuting medical! staff representative, and

summarily — and in a self-serving prophylactic fashion

— dismisses anticipated respondent requests that more

DATED: May 8, 1987

LAWRENCE SILVER

A LAW CORPORATION

; (signature)

Lawrence Silver, Attorneys for

Simon J. Pinhas, M.D.

[MIDWAY HOSPITAL MEDICAL CENTER

LETTERHEAD DELETED]

April 13, 1987

Simon Pinhas, MD

9033 Wilshire Blvd. # 206

Beverly Hills, CA 90211

CERTIFIED MAIL

RETURN RECEIPT

REQUESTED

Dear Doctor Pinhas:

In accordance with the Bylaws of the Medical Staff of

Midway Hospital Medical Center, Article VII, Section 2,

you are hereby advised of the Summary Suspension of al!

your medical staff privileges; ineluding admitting and

surgical.

This suspension shall become effective on April 13th,

1987, at 3:00 p.m. The Medical Executive Committee of

Midway Hospital Medical Center shall convene to review

and consider this action within 10 days as specified in the

Bylaws.

A copy of Article VII and Article VIII are enclosed for

your information.

Sincerely,

Arthur N. Lurvey, MD Mitchell Feldman

Chief of Staff Regional Vice-President

„

ll ———

[MIDWAY HOSPITAL MEDICAL CENTER

LETTERHEAD DELETED)

April 20, 1987

Simon Pinhas, MD

9033 Wilshire Bled. # 206

Beverly Hills, CA 90211

HAND DELIVERED AND BY

Tee

fli

Hil

;

[LAWRENCE SILVER A LAW CORPORATION

LETTERHEAD DELETED)

April 30, 1987

DELIVERED BY TELECOPIER,.

HAND DELIVERED, AND

MAILED VIA CERTIFIED MAIL —

RETURN RECEIPT REQUESTED

Arthur N. Larvey, M.D.

Chief of Staff

Midway Hospital Medica! Center

5925 San Vicente Boulevard

privileges from Midway Hospital Medical Center ( i

Staff, and to the extent that they are not inconsistent

therewith, the Bylaws of the Medical Staff.

1. Pursuant to all of Dr. Pinhas's rights, Dr. Pinhas

requests full disclosure of all charges against him with

sufficient particularity that he may investigate and rebut

those charges.

EXHIBIT “3”

requests the minutes of any meeting of any members of

6. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests all writings, as that term is defined by Section

250 of the California Evidence Code, and ali copies whieh

8. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests a list of all witnesses to any of the events

involving the charges whether or not they are intended to

be called at the time of the hearing.

9. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests a list of all witnesses who the Hospital intends to

call at the time of the hearing.

10. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests a written summary of the direct testimony of all

witnesses who will be called in the proceedings against

him.

11. Pursuant to all of Dr. Pinhas's rights, Dr. Pinhas

requests the opportunity to interview all witnesses who

may be called as witnesses against him.

12. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests the assurance that the Hospital shall require its

employees who he designates and the Medical Staff shall

require ti.at all of its members, as required by the Bylaws,

be available to testify, if so requested by Dr. Pinhas, at

the hearing in this matter.

13. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests that all reports of expert witnesses to be called

by the Hospital be submitted to him no less than 10 days

prior to their being called as witnesses and that the

Hospital be precluded from calling any expert witness if

such report is not made available.

14. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests a hearing panel composed of physicians not

members of the staff of Midway Hospital and that all

members of the hearing panel be free of bias, prejudice,

prejudgment and not possessed of any information re-

garding any of the charges in advance of the hearing.

15. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

requests the identity of the members of the hearing panel

be disclosed to him as soon as possible so that he may

determine whether or not to file motions for disqualifica-

tions in advance of the hearing date.

event that such discussion is had with them, they are

required to report it immediately to Dr. Pinhas or his

20. Pursuant to all of his rights, in the event that

either or both of the above requests are denied, he re.

quests that his attorney appear in the hearings to make al)

legal arguments to protect his record, introduce evidence,

and to cross-examine witnesses, or in some fashion be

permitted to participate in the hearing.

21. Pursuant to all of Dr. Pinhas's rights, Dr. Pinhas

requests that in the event that the above three requests

are denied, he requests the opportunity to have his attor-

ney sit in the hearing and advise him during the course of

proceedings without actual participation in the hearing.

22. Pursuant to all of Dr. Pinhas’s rights, Dr. Pinhas

demands production of all communications with the De-

partment of Health Services or any governmental agency

regarding his practice of medicine.

23. Pursuant to all of Dr. Pinhas's rights, Dr. Pinhas

demands production of all contracts between Midway

Hospital or Summit, or any affiliates, parents or subsidi-

aries, with any member of the Medical Staff for purposes

of determining bias, interest or for purposes of impeach-

ment or any other appropriate evidentiary purpose.

24. Pursuant to all of Dr. Pinhas's rights, Dr. Pinhas

demands the identification of all persons selected as a

hearing officer and all persons selected by the Hospital sit

on the panel so that he may have time to investigate their

impartiality, determine whether to conduct appropriate

voir dire examination, or to seek other relief in connection

with their appointment.

Pursuant to my agreement with Mr. Kadcielski of

Weissburg & Aronson, this demand signed by me is

timely and effective if served upon you (or a person in

charge) at the Administrator's office at the Hospital or

delivered to you (or a person in charge) at your office, or

telecopied to Mark Kadzielski at his office before mid-

night, April 30, 1987.

Sincerely,

Lawrence Silver

ee: Arthur N. Lurvey, M.D. (Hand Delivered)

435 N. Roxbury, Suite 100

Beverly Hills, CA 90210

Simon J. Pinhas, M.D.

Mark Kadzielski, Esq.

101

[MIDWAY HOSPITAL MEDICAL CENTER

LETTERHEAD DELETED]

May 7, 1987

Simon Pinhas, MD

9033 Wilshire Blvd. #206

Beverly Hills, Ca 90211

BY: CERTIFIED MAIL

HAND DELIVERED:

(5/7/87)

Dear Doctor Pinhas:

This letter is in response to your request for a hearing

at Midway Hospital Medical Center related to your sum-

mary suspension and the recommendation to terminaté

your medical staff membership. Pursuant to Article VIII,

Section I. e., this hearing will be held at 6:30 p.m. on May

12, 1987 in the Pavilion Conference Room.

A Judicial Review Committee has been appointed by

the Chief of Staff. Its Chairman is Ellis Berkowitz, MD,

and its members are: John Hofbauer, MD; Jay Jordan,

MD; Debra Judelson, MD; Alan Kessler, MD; Dwight

Makoff, MD and Stephen Seiff, MD. These committee

members have been advised not to discuss this matter

with you or any other member of the Hospital's Medical

Staff.

The decisions to summarily suspend and to terminate

your membership at Midway Hospital Medical Center

were based on reviews of your patient records involving

ophthalmological surgeries conducted at this Hospital in

1987. These reviews concluded that your conduct of pa-

EXHIBIT “4”

this Hospital dition:

The specifie charges that support this conelusion, and

Chart #7087365 Chart #7070446

the specifie charts that support these charges are as Chart #7087136 Chart #7068204

Chart #7084663 Chart #7065183 /

1. JUDGMENT TO PROCEED WITH SURGERY Chart #7084609 2909006

NOT WITHIN STANDARD OF CARE IN HOSPITAL. Chart #7083998 Chart #7065094

; ; : : z 142 Chart #7065035

2 Chart #7079249 Chart #7062664

Chart #7071027 Chart #7066244 Chart #7078102 Chart #7059639

Chart #7070713 Chart #7063199 Chart #7075936 Chart #7059612

Chart #7070489 Chart #7059728 Chart #7075529 Chart #7056915

Chart #7070403 Chart #7059574 Chart #7072392 Chart #7054459

Chart #7070179 Chart #7029896 / Chart #7072376 Chart #7029896 /

Chart #7067615 2885069 2885069

: U

B. Incomplete Pre- Operative workup: 2. FAILURE TO OBTAIN REQUIRED CONSENT

Chart #7087136 Chart #7075332 FOR PROCEDURE PERFORMED.

Chart #7084633 Chart #7073054 :

Chart #7084609 Chart #7072376 A. Lack of appropriate consent for procedure

Chart #7084595 Chart #7070543 performed:

Chart #7083955 Chart #7070004 Chart #7068204 Chart #7065086 /

Chart #7082142 Chart #7069979 Chart #7067674 2908727

Chart #7081316 Chart #7068204 Chart #7066244 Chart #7063318

Chart #7079249 Chart #7067836 :

Chart #7078293 Chart #7065167 Chart #7085788 Chart #7078129

Chart #7078285 Chart #7065094 Chart #7084099 Chart #7075456

Chart #7078145 Chart #7063059 Chart #7081936 Chart #7072422

Chart #7078072 Chart #7062664 Chart #7081928 Chart #7068182

Chart #7075979 Chart #7059639 Chart #7079397 Chart #7068107

Chart #7075936 Chart #7059612 Chart #7079389 Chart #7065019

Chart #7075928 Chart #7057172 Chart #7078293 Chart #7062599

Chart #7075375 Chart #7051832 Chart #7057172

104

C. No IntraOcular Lens Consent:

Chart #7084692 Chart #7065086 /

Chart #7084684 2908727

Chart #7083947 Chart #7063318

Chart #7082142 Chart #7062699

Chart #7079273 Chart #7062672

Chart #7072724 Chart #7062605

Chart #7070713 Chart #7062532

Chart #7070535 Chart #7059639

Chart #7067585 Chart #7057687

Chart #7066244 Chart #7057563

Chart #7065153 Chart #7057172

Chart #7065132 Chart #7029896 /

2885069

3. NO ASSISTANT AT SURGERY AS REQUIRED

BY MEDICAL STAFF BYLAWS:

Chart #7057644 Chart #7057563

Chart #7057636 Chart #7057555

Chart #7057628 Chart #7057547

The Judicial Review Committee has been polled with

regard to your requests for representation by counsel,

pursuant to Article VIII., Section 2.b. You are hereby

advised that the Committee has unanimously voted not to

permit either you or the Medical Staff to be represented

by an attorney at law at the hearing. You are entitled, as

that section indicates, to be represented by a member of

the Medical Staff in good standing. If you will be repre-

sented by a staff member, please inform the undersigned

of the identity of that person so that further comunication

regarding this matter can also be directed to that person.

A Hearing Officer, Richard Posell, Esq., has been

appointed by the Governing Board. Mr. Posell is a part-

ner in the law firm of Shapiro, Posell & Close and is

experienced at conducting hearings of this type of hospi-

105

tals. A certified shorthand reporter has also been ordered

to maintain a record of the hearing.

If you wish to review the charts in question prior to the

hearing, please contact Peggy Farber RN, Directu: of

Quality Assurance at 932-5231 or 932-5022 to make these

arrangmenets. If copies of these records are requested,

arrangements can be made with Ms. Farber after you

have completed the appropriate Non-Disclosure Agree-

ment. Copies will be handled at your own expense.

The hearing will be conducted pursuant to the provi-

sions of Article VIII of the Midway Hospital Medical

Center Medical Staff Bylaws. Those Bylaws do not pro-

vide for pre-hearing discovery of any documents or infor-

mation related to the proceedings. Additionally, the

Hospital does not have subpoena power or other powers

to compel any one to testify at a medical staff hearing.

While the Medical Staff is not required under the

Bylaws to provide you with a list of witnesses it intends

to call at the hearing, the following is a list of those

persons who are currently expected to testify on behalf of

the Medical Staff at the hearing: Alan Friedman, MD;

Arthur Lurvey, MD; Jonathan Macy, MD; James Salz,

MD and Maurice Schmir, MD. The Medical Staff reserves

the right to adc to this list, or delete from it at any time.

Please provide the undersigned with a list of your wit-

nesses as soon as possible.

Very truly yours,

Mitchell Feldman

Regional Vice-President

ee: Lawrence Silver, Esq.

(PROOF OF SERVICE OMITTED IN PRINTING)

* 4 — ee OO, mr —

106

[LAWRENCE SILVER A LAW CORPORATION

LETTERHEAD DELETED]

May 8, 1987

HAND DELIVERY

Richard Posell, Esq.

Shapiro, Posell & Close

2029 Century Park East

Suite 2600

Los Angeles, CA 90067

Re: Matter of Simon J. Pinhas, M.D.

Dear Mr. Posell:

We have been advised that you have been appointed by

the Midway Hospital Governing Board to act as the

Hearing officer in connection with the Judicial Review

Committee hearing regarding the summary suspension

and recommended termination of medical staff member-

ship of Simon J. Pinhas, M.D.

In this respect, we request in order to determine

whether to file a challege to your sitting as hearing officer:

1. A full and complete recitation of any and all discus-

sions you have had, or knowledge or information you have,

with respect to this matter;

2. A full and complete recitation of any and all rela-

tionships and/or involvement you have had, prior to this

matter, with Midway Hospital and/or Summit Health,

Ltd.;

3. A full and complete recitation of any and all other

medical peer review hearings in which you have been

involved;

EXHIBIT H“

107

4. A full and complete recitation of any and all busi-

ness or matters referred to you by Weissburg & Aronson;

5. A full and complete recitation of any and all busi-

ness or matters referred by you to Weissburg & Aronson;

6. A statement as to whether or not you were appointed

as Hearing Officer in this matter by, at the behest or

request of Weissburg & Aronson; and

7. The amount of compensation you will receive in

connection with your appointment and functions as Hear-

ing Officer in this matter.

8. The indentification of any hospitals, or other health

care providers that you or your firm represents.

9. Any reason why you might not be able to fully

protect Dr. Phinas’ rights or to be fair to him in the

hearing of this case.

Please find enclosed a copy of Respondent’s objections

to Notice of Hearing dated May 7, 1987.

Sincerely,

Lawrence Silver

ee: Simon Pinhas, M.D.

with enclosure

LS:wbr

108

[SHAPIRO, POSELL X CLOSE

LETTERHEAD DELETED]

May 11, 1987

HAND DELIVERY

Lawrence Silver, Esq.

9100 Wilshire Boulevard

Suite 360

Beverly Hills, CA 90212

Re: Matter of Simon J. Pinhas, M.D.

Dear Mr. Silver:

I am in receipt of your letter of May 8, 1987, which was

hand delivered to my office on the afternoon of May 8,

1987. As you know, my appointment as hearing officer in

connection with the Judicial Review Committee hearing

requested by Simon J. Pinhas, M.D. was made in accor-

dance with the Bylaws of Midway Hospital. Those Bylaws

provide, in Article VIII, Section 2d, that a hearing officer

may be an attorney at law. There are no other require-

ments. I can assure you that I am an attorney at law

licensed to practice in the state of California.

Furthermore, there is no reason why I cannot be fair to

all of the parties in this matter, and I intend to be so. It

would be inappropriate for me to respond further to your

May 8, 1987 letter.

Very truly yours,

Shapiro, Posell & Close

Richard E. Posell

REP/hh

ec: Midway Hospital Medical Staff Office

EXHIBIT “I”

109

JUDICIAL REVIEW COMMITTEE OF

MIDWAY HOSPITAL MEDICAL CENTER

[CAPTION DELETED]

RESPONDENT'S MOTION FOR

DETERMINATION AS TO THE

BURDEN OF PROOF IN THE

INSTANT PROCEEDING

COMES NOW Simon J. Pinhas, M.D., Respondent, by

his attorneys of record, Lawrence Silver A Law Corpora-

tion, and hereby requests that the Judicial Review Com-

mittee enter an order determining the burden of proof at

the hearing herein.

Respondent and his counsel in support thereof allege

the following facts to be true:

1. Article VIII, Section 2j of the Midway Hospital

Medical Center Medical Staff Bylaws provides:

“In all cases specified in Section 1, b. of this

Article, it shall be incumbent on the person request-

ing the hearing to initially come forward with evi-

dence in his support. Thereafter the burden shall

shift to the body or committee whose decision

prompted the hearing to come forward with evidence

in support of its actions or decision.”

2. Respondent demanded the present hearing upon his

summary suspension of medical staff privileges, including

admitting and surgical privileges, from Midway Hospital

Medical Center.

3. Until May 7, 1987, Dr. Pinhas was not officially

notified of the nature of charges to be presented in this

proceeding, and only then was he inadequately notified.

EXHIBIT “J”

110

4. The Midway Hospital Medical Center Medical Staff

Bylaws impose the burden of proof on respondent to

initially come forward with evidence in his support. Arti-

ele VIII, Seetion 2j of those Bylaws states:

After all the evidence has been submitted by

both sides, the Judicial Review Committee shall rule

against the person who requested the hearing unless

it finds that he or she has proved by a preponderance

of the evidence, that the decision that prompted the

hearing was arbitrary or unreasonable, and should

not be sustained by the evidence.”

5. This provision creates an unfair burden on Respon-

dent in that the Respondent is immediately obliged to

prove the negative, i. e., that he did not engage in the

conduct alleged.

6. The burden of proof should be on the Hospital

because it is making allegations that the Respondent's

conduct in connection with patient care was below the

acceptable standard of care in the Hospital.

7. None of the allegations made by the Hospi-

tal / Medical Staff can be established without the calling of

witnesses and Respondent should not be put to the

burden of having to call witnesses to disprove something

until it is actually proven by the Hospital. Only after

cross-examination and the presentation of his own evi-

dence will Respondent be able to meet the charges.

8. The principles of fair procedure and due process

guaranteed to Respondent under the California and

United States Constitutions cannot be so misconstrued as

to condone a proposition so novel as to be inimicable to

the established American standard that a party is deemed

innocent until proven guilty.

3 111

WHEREFORE, it is requested that the Judicial Re-

view Committee enter an order that the burden of proof is

on the Hospital / Medical Staff and that it be the standard

of “clear and convincing” evidence.

DATED: May 14, 1987

LAWRENCE SILVER

A LAW CORPORATION

BY: (signature)

Lawrence Silver, Attorney

for Simon J. Pinhas, M.D.

112

JUDICIAL REVIEW COMMITTEE OF

MIDWAY HOSPITAL MEDICAL CENTER

[CAPTION DELETED]

RESPONDENT'S REQUEST THAT IN THE EVENT

THAT HE IS DENIED THE RIGHT TO REPRESEN.

TATION BY A PHYSICIAN-ATTORNEY AT ALL

STAGES OF THE PROCEEDINGS OR BY ATTOR-

NEY LIMITED TO CERTAIN FUNCTIONS IN THE

PROCEEDING THAT ALTERNATIVELY RESPON-

DENT BE GRANTED THE OPPORTUNITY TO

HAVE HIS ATTORNEY SIT IN THE HEARING AND

ADVISE HIM WITHOUT ACTUAL PARTICIPA-

TION IN THAT HEARING

COMES NOW Simon J. Pinhas, M.D., Respondent, by

his attorneys of record, Lawrence Silver A Law Corpora-

tion, and hereby requests that the Judicial Review Com-

mittee permit him to be represented by counsel at the

hearing to the extent of permitting his attorney the

opportunity to sit in the hearing and advise Respondent

during the course of proceedings without actually partici-

pating in the hearing itself.

Respondent and his counsel in support thereof allege

the following facts to be true:

1. By letter dated April 30, 1987, in accordance with

the Midway Medical Staff Bylaws, Respondent requested

a hearing by the Judicial Review Committee. In that same

letter, Respondent requested the right to be represented

by a physician who is also an attorney at that hearing.

2. By letter dated May 7, 1987, Respondent was

served with a Notice of Hearing in this matter and was

advised that his request for representation by counsel had

been denied.

113

3. The right to retained counsel is a crucial part to due

process and fair procedure as provided to Respondent by

the Federal and California Constitutions and fair

procedure.

4. Failure to allow Respondent to be represented by

counsel will seriously prejudice his representation and

presentation of his case and will be in violation of the

California and Federal Constitutions and fair procedure.

WHEREFORE, it is requested that the Judicial Re-

view Committee permit counsel for Dr. Pinhas to sit in on

the hearing and advise Respondent during the course of

the proceeding without actual participation in the hearing

itself.

DATED: May 14, 1987

LAWRENCE SILVER

A LAW CORPORATION

BY: (signature)

Lawrence Silver, Attorney

for Simon J. Pinhas, M. D.

114

JUDICIAL REVIEW COMMITTEE OF

MIDWAY HOSPITAL MEDICAL CENTER

[CAPTION DELETED]

RESPONDENT'S REQUEST FOR AN ORDER THAT

IN THE EVENT THAT RESPONDENT IS DENIED

HIS REQUEST TO BE REPRESENTED BY EITHER

A PHYSICIAN-ATTORNEY OR AN ATTORNEY AT

ALL STAGES OF THE PROCEEDINGS HEREIN

THAT HE ALTERNATIVELY BE ALLOWED Mr.

RESENTATION BY AN ATTORNEY TO APPEAR IN

THE HEARINGS TO MAKE LEGAL ARGUMENT,

INTRODUCE EVIDENCE, AND CROSS-EXAMINE

WITNESSES.

COMES NOW Simon J. Pinhas, M.D., Respondent, by

his attorneys of record, Lawrence Silver A Law Corpora-

tion, and hereby requests that the Judicial Review Com-

mittee permit him to be represented by counsel to the

extent of appearing in the hearings to make all legal

arguments to protect the record, and to produce evidence,

and to cross-examine witnesses.

Respondent and his counsel in support thereof allege

the following facts to be true:

1. By letter dated April 30, 1987, in accordance with

the Midway Medical Staff Bylaws, Respondent requested

a hearing by the Judicial Review Committee. In that same

letter, Respondent requested the right to be represented

by a physician who is also an attorney at that hearing.

2. By letter dated May 7, 1987, Respondent was

served with a Notice of Hearing in this matter and was

advised that his request for representation by counsel had

been denied.

115

3. The right to retained counsel is a crucial part to due

process and fair procedure as provided to Respondent by

the Federal and California Constitutions.

4. Failure to allow Respondent to be represented by

counsel to the extent requested above will seriously

prejudice his representation and presentation of his case

and will be in violation of the California and Federal

Constitutions.

WHEREFORE, it is requested that the Judicial Re-

view Committee permit counsel for Respondent to partici-

pate in the hearings to the extent of making all legal

arguments to protect his record, introduce evidence, and

to cross-examine witnesses.

DATED: May 14, 1987

LAWRENCE SILVER

A LAW CORPORATION

BY: (signature)

Lawrence Silver, Attorney

for Simon J. Pinhas, M.D.

116

JUDICIAL REVIEW COMMITTEE OF

MIDWAY HOSPITAL MEDICAL CENTER

[CAPTION DELETED]

RESPONDENT'S MOTION FOR AN ORDER

PERMITTING HIM TO BE REPRESENTED BY A

PHYSICIAN WHO IS ALSO AN ATTORNEY AT ALL

STAGES OF THE PROCEEDINGS

COMES NOW Simon J. Pinhas, M.D., Respondent, by

his attorneys of record Lawrence Silver A Law Corpora-

tion, and hereby requests the Judicial Review Committee

enter an order permitting him to be represented by a

physician who is also an attorney at all stages of the

proceedings herein.

Respondent and his counsel in support thereof allege

the following facts to be true:

1. By letter dated April 30, 1987, in accordance with

the Midway Medical Staff Bylaws, Dr. Pinhas requested a

hearing by the Judicial Review Committee. In that same

letter, Dr. Pinhas requested the right to be represented

by a physician who is also an attorney at that hearing.

2. By letter dated May 7, 1987, Dr. Pinhas was served

with a Notice of Hearing in this matter and was advised

that his request for representation by counsel had been

denied.

3. The right of an affected practitioner-respondent to

be entitled to be accompanied by and/or represented at

the Judicial Review Committee hearing by a member of

the Medical Staff in good standing is provided by the

Midway Hospital Medical Staff Bylaws Article VIII, See-

tion 2b. However, the terms of those Bylaws negate that

117

right if the member of the Medical Staff chosen is also an

attorney.

4. The necessity of a practitioner-respondent to these

proceedings to be repres

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.