Moran v. >South> >Coast> >Medical> >Center>





















Filed 3/11/13 Moran v. South Coast Medical Center CA4/3









>NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

MICHAEL D. MORAN, Plaintiff and Appellant, v. SOUTH COAST MEDICAL CENTER, Defendant and Respondent.

G045628 (Super. Ct. No. 30-2009-00303136) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William M. Monroe, Judge. Affirmed.

Engstrom, Lipscomb &
Lack, Walter J. Lack, Robert J. Wolfe and Edward P. Wolfe for Plaintiff and
Appellant.

Horvitz & Levy,
Jeremy B. Rosen, Andrea A. Ambrose; Patrick K. Moore Law Corporation and
Patrick K. Moore for Defendant and Respondent.

* * *



An
executive committee of South Coast
Medical Center
(Hospital) recommended denying the application of Dr. Michael Moran for
reappointment to the Hospital’s medical staff.
Dr. Moran challenged the recommendation through a lengthy, multilevel
administrative review process. In the
end, the governing board of the Hospital upheld the decision not to reappoint
Dr. Moran. The superior court denied Dr.
Moran’s petition for a writ of mandate to compel the Hospital to vacate its
decision denying his reappointment and to withdraw a report sent to the Medical
Board of California. Dr. Moran appeals.

We affirm. Substantial evidence supports the findings in
support of the recommendation not to reappoint Dr. Moran to the Hospital’s
medical staff. Furthermore, we reject
Dr. Moran’s various challenges to the administrative procedures utilized by the
Hospital.

I

FACTS

>A.
Background:

Dr. Moran is a
cardiologist who specializes in endovascular interventions. He joined the Hospital medical staff in 1997
and became the director of the Hospital catherization lab (cath lab) in 2002.

One morning in August
2005, Patient No. 1 was brought in by paramedics. Dr. Raymond Chang scheduled an emergency
pacemaker implantation at the cath lab for 11:00
a.m., a time slot that was open at the time of scheduling. Dr. Moran’s office later sought to schedule
an angiogram for the same time slot. At 10:50 that morning, Dr. Chang was informed of
the scheduling conflict. He contacted
Dr. Moran and asked for his procedure to take priority because his patient was
in unstable condition and the pacemaker consultant and the technologist had
already been called. Dr. Moran refused
to yield to Dr. Chang and a confrontation between the two doctors ensued. Staff had to contact the chair of the
department of medicine and the chief of staff to resolve the dispute. It was determined that because of the
unstable condition of Patient No. 1, Dr. Chang’s emergency procedure would have
priority over Dr. Moran’s elective procedure.

A few days later, Dr.
Moran performed an extremely difficult pacemaker replacement on an elderly
patient (Patient No. 2) with a history of heart disease. The next morning, Patient No. 2 was suffering
palpitations and had an abnormal electrocardiogram. The charge nurse contacted Dr. Moran,
informed him of the condition of Patient No. 2, and reported a suspected
ventricular tachycardia—a potentially life-threatening condition. Dr. Moran was contacted again that afternoon
and reminded of the abnormal electrocardiogram of Patient No. 2. Dr. Moran, without reviewing either the
electrocardiogram or a chest X-ray that had been taken of Patient No. 2 that
morning, and also without examining Patient No. 2, ordered by telephone that
Patient No. 2 be discharged. When Dr.
Moran went to the Hospital later in the day and was shown the electrocardiogram
results, he had Patient No. 2 readmitted immediately.



>B.
Administrative Proceedings:

The Hospital’s Medical
Executive Committee became aware of the confrontation between Dr. Moran and Dr.
Chang and the incident involving the discharge of Patient No. 2. The Medical Executive Committee recommended
that Dr. Moran be removed as director of the cath lab and that the matter of
the physician dispute be reviewed by the Physician Aid Committee. However, Dr. Moran refused to meet with the
Physician Aid Committee. The Medical
Executive Committee, after reviewing a report from the Physician Aid Committee,
voted to require Dr. Moran to enroll in an anger management program.

The Medical Review
Committee also commenced a corrective action investigation, pursuant to the
Hospital bylaws. It appointed an ad hoc
committee (Ad Hoc Committee), consisting of four doctors—Drs. Navneet Boddu,
Kathleen Farinacci, J.S. Reynard and Frank Rose. The Ad Hoc Committee commenced an
investigation in November 2005 and, in addition to reviewing extensive medical
records, it interviewed four doctors, including Dr. Chang and Dr. Moran, four
nurses, and two others.

While the investigation
was ongoing, two vascular surgeons, Dr. William Wallace and Dr. Marcello
Borzatta, each initiated contact with Dr. Michael Coccia, then acting chief of
staff, to express their concerns about Dr. Moran’s medical practices. Dr. Wallace, who had privileges at both the
Hospital and Saddleback Memorial
Medical Center,
wanted to report that Dr. Moran had placed stents all the way from the groin to
the mid-calf of Patient No. 3 and thereby created a situation that was
surgically non-reconstructible. Dr.
Borzatta, who had privileges at Mission Hospital Regional Medical Center,
sought to bring to the attention of the Hospital’s review committee what he
felt was injurious care rendered by Dr. Moran to four patients. One of those patients was Patient No. 4, upon
whom at least 10 procedures had been performed in two years or less, and who
ultimately suffered an amputation.

At its February 16, 2006
meeting, the Medical Executive Committee suspended Dr. Moran’s privileges to
perform peripheral vascular interventions below the groin. It also decided to have an independent
interventional cardiologist perform a peer review of the treatment of Patient
Nos. 3 and 4. In response to the
suspension, Dr. Moran sought and obtained an opportunity to interview with the
Medical Executive Committee. After the
February 28, 2006 interview, the Medical Executive Committee rescinded the
suspension pending a more detailed evaluation of the treatment of the two
patients in question.

Dr. Suhail Dohad, an
interventional cardiologist, was retained to perform the peer review. Dr. Dohad was the chairman of the Pacific
Heart and Vascular Institute at the Brotman Medical Center and the co-director
of the Endovascular Committee at Cedars Sinai Medical Center.

Dr. Dohad prepared a
report that was critical of Dr. Moran.
He stated, inter alia, that the care for Patient Nos. 3 and 4 fell below
the standard of care. The last line of
Dr. Dohad’s 11-page report states: “All
of these issues are egregious and clearly below [the] standard of current
endovascular care.” After receiving Dr.
Dohad’s report, the Ad Hoc Committee invited Dr. Moran in for an interview
regarding those two patients. In
response, Dr. Moran gave the committee a two and one-half hour presentation.

The Ad Hoc Committee
issued a report in June 2006 in which it concluded that “(2) Dr. Moran’s
behavior was inappropriate, unethical and disruptive with regard to the . . .
incident [involving Patient No. 1]; (3) Dr. Moran exercised poor judgment with
regard to the . . . case [involving Patient No. 2]; and (4) Dr. Moran lacked
appropriate judgment in evaluating the risks and benefits of peripheral
endovascular interventions and in obtaining valid informed consent for those
procedures with regard to [Patient No. 3 and Patient No. 4].”

After reviewing the
written report of the Ad Hoc Committee and the report of Dr. Dohad, the Medical
Executive Committee voted to recommend that Dr. Moran’s application for
reappointment be denied. Dr. Moran then
sought review before a judicial hearing committee (Judicial Hearing Committee). Dr. Moran was notified of the charges against
him. He and the Hospital were each
represented by counsel through the proceedings.

Seven doctors, including
Dr. Andrew Sassani, were selected to serve on the Judicial Hearing
Committee. The Judicial Hearing
Committee held 15 hearings over 10 months.
Each party made opening statements and called witnesses who were
examined under oath. Eight doctors,
including Dr. Moran, testified, in addition to other persons. Hospital records and other documents were
presented for consideration. Each party
presented written briefs and oral
argument at the conclusion of the hearing.

The Judicial Hearing
Committee ultimately sustained three of the charges brought against Dr.
Moran—those pertaining to Patient Nos. 1, 2, 3, and 4. A majority of the Judicial Hearing Committee
concluded that the decision of the Medical Executive Committee to deny Dr.
Moran’s application for reappointment should be affirmed.

Thereafter, Dr. Moran
commenced an appeal before the Hospital’s governing board (Governing Board),
which appointed an appeal board (Appeal Board) consisting of three
persons. Attorney Daniel Willick was
appointed the hearing officer.

In bifurcated
proceedings, the Appeal Board first addressed certain procedural issues Dr.
Moran raised, including whether Dr. Sassani was precluded by the Hospital
bylaws from either sitting on the Judicial Hearing Committee or participating
in its voting. Dr. Sassani had
relinquished his active staff position at the Hospital and become an affiliate
staff member of the Hospital after the Judicial Hearing Committee proceedings
began. Although he had been an active
staff member during most of the Judicial Hearing Committee hearings, he had
become an affiliate staff member before the final sessions, deliberation and
vote. After briefing and a hearing at
which counsel for each party presented oral argument, the Appeal Board
concluded that the Hospital bylaws did not preclude Dr. Sassani from sitting on
the Judicial Hearing Committee, joining in its deliberations, or participating
in its voting.

The parties were then
given an opportunity to brief the merits and their attorneys again presented
oral argument before the Appeal Board.
The Appeal Board thereafter found that substantial evidence supported
the findings of the Judicial Hearing Committee regarding Patient Nos. 1, 2, 3,
and 4, and the confrontation with Dr. Chang.
The Appeal Board unanimously affirmed the decision of the Judicial
Hearing Committee, except for the denial of Dr. Moran’s application for
reappointment. By a two-to-one vote, the
Appeal Board recommended that Dr. Moran be reappointed, subject to six months
of proctoring.

Attorney Jay Christensen
was hired as special counsel to advise the Hospital’s board of directors
concerning Dr. Moran’s appeal of the Judicial Hearing Committee decision. He made a presentation to the Governing
Board, at its June 25, 2009 meeting.
According to the minutes of the meeting:
(1) Attorney Christensen addressed the actions of the Medical Executive
Committee, the findings and decision of the Judicial Hearing Committee, the
findings and recommendations of the Appeal Board, and applicable legal
considerations; and (2) the Governing Board thereafter engaged in extensive
discussion and voted to uphold the recommendation of the Medical Executive
Committee to deny Dr. Moran reappointment to Hospital medical staff.

The Governing Board
issued its final decision five days later.
It reiterated certain findings of the Judicial Hearing Committee
regarding Patient Nos. 1, 2, 3, and 4.
As had the Appeal Board, the Governing Board determined that the
findings were supported by substantial evidence. The Governing Board stated that while two members
of the Appeal Board had opined that the failure to reappoint Dr. Moran would be
disproportionate and drastic, the Governing Board found that the opinion of
those two members was not supported by the evidence. It further stated that there was no evidence
to support the conclusion that proctoring would have been an appropriate method
of protecting patients. The Governing
Board concluded that because the recommendation of the Medical Executive
Committee was amply supported by the findings of the Judicial Hearing Committee
and the Appeal Board, it had to be upheld.
The final decision concluded with the attestation of Robert Carmen, the
president of the Governing Board. He
stated that, pursuant to his delegated authority, he adopted the “statement of
the Governing Board’s final decision, consistent with its action of June 25,
2009.”href="#_ftn1" name="_ftnref1" title="">[1]



>C.
Judicial Proceedings:

Dr. Moran filed a
petition for a writ of administrative mandate.
He challenged the decision of the Governing Board on numerous grounds,
including: (1) the Governing Board denied
him a fair hearing by, inter alia, violating Hospital bylaws and Business and
Professions Code sections 809 and 2282.5; (2) Dr. Sassani, as an affiliate
staff member, was improperly permitted to vote on the Judicial Hearing
Committee, so it reached a decision adopted by less than a majority vote; (3)
the Judicial Hearing Committee’s findings did not warrant the drastic
punishment of nonrenewal of privileges; (4) the findings of the Judicial
Hearing Committee were based on conclusory, speculative and inadmissible
evidence and were not supported by substantial evidence; and (5) Dr. Moran was
prevented from presenting an effective defense because the charges against him
were based on multiple layers of hearsay and unreliable documentation.

In his prayer for
relief, Dr. Moran asked that the court: (1) issue a peremptory writ of mandate
directing the Hospital to vacate the decisions of the Judicial Hearing
Committee and the Governing Board denying his application for reappointment;
(2) issue a peremptory writ of mandate directing the Hospital to withdraw the
Business and Professions Code section 805 report sent to the Medical Board of
California and the National Practitioner Data Bank; and (3) award him his costs
of action, including reasonable attorney fees, pursuant to Business and
Professions Code section 809.9. The
court denied the requested relief.

II

DISCUSSION

>A.
Code of Civil Procedure Section 1094.5:

A party seeking to
challenge certain final administrative orders or decisions may file a petition
for a writ of mandate. (Code Civ. Proc.,
§§ 1085, 1094.5.) Code of Civil
Procedure section 1094.5, subdivision (b) provides: “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 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.”

Code of Civil Procedure
Section 1094.5, subdivision (d), provides that, with certain exceptions, in
cases arising out of the actions of private hospital boards or the governing
bodies of certain municipal hospitals, “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.”href="#_ftn2" name="_ftnref2" title="">[2]

>

>B.
Substantial Evidence:

> Dr.
Moran claims the final decision of the Governing Board is not supported by href="http://www.fearnotlaw.com/">substantial evidence. The Hospital disagrees, asserting there is
ample evidence to support the findings regarding Patient Nos. 1, 2, 3, and
4. We agree with the Hospital.

(1) Patient No. 1—

> (a)
introduction

With regard to Patient
No. 1, the Judicial Hearing Committee stated:
“The JHC unanimously finds that Dr. Moran behaved in a disruptive manner
by inappropriately asserting his leadership position to Dr. Chang and the
nursing staff in an attempt to gain priority for his elective procedure. The confrontation . . . caused an approximate
one-hour delay in treating Dr. Chang’s unstable patient who required urgent
intervention. Accordingly, the JHC
concludes that Dr. Moran’s disruptive behavior deleteriously impacted the
delivery of patient care.”

Dr. Moran attacks the
last sentence of the quoted material. He
says, first, that the finding was unsupported by the evidence because the
evidence had to do with only a single incident over his career and, second, that
there was no evidence the patient was negatively affected by the one-hour delay
in any event. However, the findings make
clear that the quoted sentence was directed to Dr. Moran’s behavior in
connection with one incident, not to Dr. Moran’s behavior over the course of
his entire career. Furthermore, there is
no finding that Patient No. 1 in fact suffered harm because of the incident.
The clear import of the finding is simply that, on the occasion in question, it
was dangerous to cause a one-hour delay in treating an unstable patient who
required urgent care. Taken in context,
Dr. Moran’s first two challenges to the findings fall flat.

Dr. Moran challenges the
findings on a third point, saying they are unsupported by the evidence. He maintains that only uncorroborated hearsay
was offered in support of the charge arising out of the incident. He acknowledges that hearsay evidence is to
some extent admissible in administrative proceedings, but states that it cannot
be the only evidence in support of the charge.
Indeed, it has been held that “[w]hile uncorroborated hearsay alone is
insufficient to support an administrative finding, hearsay together with other
reliable evidence may support a finding.
[Citations.]” (>Cipriotti v. Board of Directors (1983)
147 Cal.App.3d 144, 155, fn. 2.) Dr.
Moran also says that his own testimony was the only live testimony. We shall address the other evidence first.

>(b) Melinda Johnson’s memorandum

The Ad Hoc Committee
interviewed nurse Melinda Johnson and considered her written memorandum describing
the events occurring on August 23, 2005.
We look now at that memorandum.

Johnson said she was in
the cath lab when she got a call from Dr. Chang about a permanent pacemaker for
a patient in the intensive care unit.
She told Dr. Chang that there were no cases scheduled. Chris from Dr. Moran’s office later called
about a patient she said was scheduled for a procedure. Johnson then called Dr. Chang and told him
there was a case of which they had not been aware. After Drs. Chang and Moran spoke, Dr. Chang
told Johnson to take his patient to the cath lab. However, Dr. Moran contacted her immediately
thereafter and contradicted Dr. Chang’s instructions. Johnson suggested that because Dr. Chang had
called first to schedule a patient, he should be allowed to go first. Dr. Moran repeatedly told her that he was the
director of the cath lab and that she was to do as she was told.

Johnson called nurse
Karolyn Scheneman, vice-president of patient care services.href="#_ftn3" name="_ftnref3" title="">[3] Dr. William Anderson, then chief of staff,
and Dr. J.S. Reynard, chairman of medicine,href="#_ftn4" name="_ftnref4" title="">[4]
were then contacted and Dr. Reynard said for Dr. Chang’s patient to go
first. However, Dr. Moran arrived
claiming that Dr. Anderson had said he could go first. Scheneman called Dr. Anderson to
confirm. Johnson stepped away, and when
she came back, Dr. Moran said that Dr. Chang could go first. However, he said that he was the director of
the cath lab and was “only going to allow Dr. Chang to perform a temporary
pacing lead!”

>(c) Dr. Chang’s letter

The Ad Hoc Committee
also considered a letter dated August 23, 2005 from Dr. Chang to the Hospital’s
Medical Staff Office. The Ad Hoc
Committee reviewed that letter with Dr. Chang when it interviewed him.

In the letter, Dr. Chang
said he had been contacted at 9:30 that morning to see the patient. He scheduled the patient for an emergent
permanent pacemaker implantation to take place at 11:00 a.m. Dr. Chang had been informed that there were
no cases scheduled in the cath lab at that time. He called a radiological technologist and a
pacemaker technical consultant and drove to the Hospital to perform the
procedure. At 10:50 a.m., he received a
call informing him that Dr. Moran had scheduled a case at 11:00 a.m.

Dr. Chang said he
immediately called Dr. Moran and requested that his procedure go first, because
his patient was unstable and he had already called in the radiological
technologist and the pacemaker consultant.
Dr. Moran refused to yield and said he should place a temporary wire in
the patient while in the intensive care unit.
Dr. Chang said, “I informed him that . . . the ICU is not the ideal
location to place a temporary wire, as it is often difficult to get fluoroscopy
at the bedside, and sometimes all the necessary materials have been absent. . .
. In addition, I also noted that if I
were to place a temporary wire in the patient, there is no guarantee that the
wire would stay in place, or that the patient may become asystolic during my
placement of the temporary wire, which can happen occasionally. He stated that I should then place the wire
in the cath lab, where there are more materials with better fluoroscopy, but I
was not allowed to implant the permanent pacemaker until he was finished with
his elective case. I again stated to him
that placement of a temporary wire, no matter where it is done, is no guarantee
that the patient [will] become stable from being unstable. I also stated it would not be in the
patient’s best interest to take the patient to the cath lab, place a temporary
wire, bring him back to the ICU, then perform the permanent pacemaker
implantation later after [Dr. Moran] was done with his elective procedure . . .
.”

Dr. Chang
continued: “[Dr. Moran] then stated that
he did not feel that [an] inpatient with asystole should take precedence over
an elective outpatient procedure. He
also became quite belligerent and stated that he was the director of the cath
lab, and I was not, under any circumstances, to perform a permanent pacemaker
implantation until he was finished with his case. Of note, his patient had not even arrived to
the hospital at 11:30 a.m. I then talked
to Dr. Anderson, chief of staff, and Dr. Reynard, chief of the department of
cardiology. They both agreed that in
this situation, an inpatient with an unstable condition should take precedence
over an elective outpatient procedure. I
was given permission to perform the procedure.
Dr. Moran then appeared visibly upset.
He stated that he will go over my credentialing and consider withdrawing
my privileges.”

>(d) Dr. Moran’s testimony

Dr. Moran testified
before the Judicial Hearing Committee as follows. On the date in question, Dr. Moran apparently
had been paged but had not received the page.
Eventually, he spoke with Dr. Jamali, who had been trying to reach him. She said “there was a very unstable patient
in the ICU who was in complete heart block . . . .” By the time Dr. Moran spoke to Dr. Jamali,
however, Dr. Chang already had been summoned to take care of the patient.

Dr. Moran learned that
he and Dr. Chang each sought to use the cath lab during the same time
slot. The nurses informed Dr. Moran that
Dr. Chang’s “patient was very unstable and critical . . . .” Dr. Chang told Dr. Moran that he needed to
use the cath lab to implant a pacemaker.
Dr. Moran suggested that it would be better to stabilize the patient at
the bedside using a temporary pacing wire.
Dr. Chang responded that he was uncomfortable implanting a temporary
pacing wire in that setting given the nursing staff and equipment available in
the intensive care unit. So Dr. Moran,
understanding that the “patient was critically unstable,” offered to put a
temporary pacing wire in place himself while at the patient’s bedside in the
intensive care unit.

Dr. Moran called
Scheneman and found out that she was already talking to Dr. Chang. Dr. Moran then went to the cath lab and found
Scheneman there talking with Johnson.
Scheneman and Johnson were discussing whose patient would go first. Scheneman said that Dr. Chang’s patient
should go first because it was an emergency.
Dr. Moran said that he was better qualified than she was to make the
decision.

Scheneman then called
Dr. Anderson for a ruling. Dr. Anderson
asked Dr. Moran why he didn’t just let Dr. Chang’s patient go first. Dr. Moran opined that the patient was too
unstable to be moved to the cath lab for the procedure. Dr. Anderson overruled Dr. Moran and decided
to let Dr. Chang’s patient go first because of the emergency situation. Dr. Moran abided by Dr. Anderson’s decision
as a matter of protocol and, under protest, let Dr. Chang go first.

Dr. Moran nonetheless
told Dr. Chang to put in a temporary pacemaker, not a permanent one, but Dr.
Chang insisted on a permanent pacemaker.
The two of them got into an exchange over whether it was appropriate to
put in a permanent pacemaker in an emergency situation. Dr. Moran said he tried to settle the matter
in a way “to keep from getting angry and keep it from escalating.” He added that, “[u]nfortunately, that was
unsuccessful.”

Ultimately, Dr. Anderson
had to be contacted a second time to resolve the dispute. Dr. Anderson asked Dr. Moran why he didn’t
just let Dr. Chang do a permanent pacemaker and Dr. Moran replied that it
“[was] not the right thing to do . . . .”
Dr. Anderson overruled Dr. Moran a second time and told him to let Dr.
Chang proceed with the permanent pacemaker.

When Dr. Moran testified
before the Judicial Hearing Committee, three doctors, Drs. Acacio, Carlberg,
and Cornett, each asked Dr. Moran why, when he realized that Dr. Chang had a
different treatment style than he did, he did not simply step aside and let Dr.
Chang go forward in the treatment of his very unstable patient, rather than try
to control Dr. Chang’s method of treatment.
Dr. Moran maintained that it was safer to use the temporary pacing wire
in the intensive care unit than to move the patient to the cath lab to implant
a permanent pacemaker.

>(e) substantial evidence re Patient No. 1

As Dr. Moran’s own
testimony makes clear, there was a scheduling dispute concerning the use of the
cath lab. Dr. Chang’s patient was
critically unstable and Dr. Chang wanted to perform a permanent pacemaker
implantation on an emergency basis. Dr.
Moran wanted Dr. Chang to place a temporary wire in the unstable cardiac
patient, at bedside in the intensive care unit, while he himself performed an
elective procedure in the cath lab. The
chief of staff and the vice-president of patient care services each had to be
called to resolve the dispute.

Even after the chief of
staff overruled Dr. Moran and told him to permit Dr. Chang to use the cath lab
first, Dr. Moran persisted in furthering the dispute with Dr. Chang by
endeavoring to control Dr. Chang’s treatment methods. Dr. Moran insisted that even though Dr. Chang
was going to be allowed to use the cath lab first, he would only be permitted
to place a temporary wire in the patient, not to implant a permanent
pacemaker. Because the dispute
continued, the chief of staff had to intervene a second time. The chief of staff again overruled Dr. Moran
and told him to permit Dr. Chang to implant the permanent pacemaker.

So, Dr. Moran’s own
testimony, even without the letter from Dr. Chang and the memorandum from
Johnson, was sufficient to support the finding that Dr. Moran’s disruptive behavior
negatively impacted the delivery of patient care. True, there is no evidence to show that the
patient suffered harm in the end.
However, Dr. Moran himself testified repeatedly as to his understanding
of how critically unstable the patient was, and it simply may have been good
fortune that no harm befell the patient during the one-hour delay in treatment.

(2) Patient No. 2—

With regard to Patient
No. 2, the Judicial Hearing Committee concluded: “The JHC unanimously finds that Dr. Moran was
advised on two separate occasions of suspected ventricular tachycardia and
failed to review the rhythm strips or examine the patient prior to ordering
discharge. The JHC unanimously concludes
that, by ignoring a ‘red flag’ that was potentially lethal to the patient, Dr.
Moran violated the standard of care for cardiologist[s] in this community. This conclusion is confirmed by Dr. Dohad’s
opinion that to discharge a patient under these circumstances, knowing that
ventricular tachycardia is potentially lethal, is egregious.”

Dr. Moran contends there
is no substantial evidence to support this finding. Furthermore, he says the only nonhearsay
evidence concerning what information he
did or did not have prior to discharging Patient No. 2 was his own testimony in
the administrative proceedings. He
testified before the Judicial Hearing Committee as follows.

Dr. Moran had performed
a replacement of an atrial pacemaker lead due to pacemaker lead failure. In his own words, “[i]t was a very difficult
procedure,” because the patient had extensive scar tissue due to prior
surgeries. Dr. Moran stated “[i]t took
quite some time to find a position where the atrial lead would function . . .
.” Ultimately, he placed the lead “low
in the atrium.”

Nurse Elvia Bender
contacted Dr. Moran at home around 8:00 a.m. on August 26, 2005 and told him
the night nurses reported that the patient had suffered episodes of ventricular
tachycardia. However, she stated that,
in the morning, the patient had stable vital signs, was walking around, and
said he felt fine. He was asymptomatic
except for occasional palpitations.

Because it had been
reported to him that there was a possibility of ventricular tachycardia or
“wide complex beats,” Dr. Moran told Bender to get an electrocardiogram and to let
him know if there were any problems with it.
He said he spoke to her later in the day and she reported again that
“she was being told by the ICU that the monitor was printing out strips that
had the V-tach alarm.” Bender also told
him that the electrocardiogram and a chest X-ray were okay, and “something
about the lead being low in the atrium.”

Dr. Moran was not
concerned about the situation because he had placed the lead low in the atrium,
and the patient was walking around, asymptomatic except for occasional
palpitations, which he had had in the past with atrial fibrillation. Dr. Moran was at a different hospital that
day, but was in contact with staff at the Hospital throughout the day.

At one point, the nurse,
in describing the heart rhythm to Dr. Moran, “said that she really couldn’t
tell if it was irregular or regular, if . . . it was atrial fibrillation versus
ventricular tachycardia.” So Dr. Moran
asked to speak to a nurse in the intensive care unit, who told him the rhythm
“was irregularly irregular.” Dr. Moran
opined that this was consistent with atrial fibrillation, but not ventricular
fibrillation. Dr. Moran explained that
he “discounted the computer interpretation, because the computer sees two or
three wide beats in a row and it spits out a strip that says V-tach.” At some point, Dr. Moran let the patient go
home because his vital signs were stable, he was anxious to leave the Hospital,
and he lived just around the corner.

Eventually, Dr. Moran
got to the Hospital and saw the rhythm strips.
He immediately observed that the atrial lead was pacing the ventricle
and it was obvious that the pacemaker needed to be fixed. He also looked at the X-ray and observed that
the lead was clearly in the ventricle, not “low in the atrium” as he had been
told. Ultimately, Dr. Moran had Patient
No. 2 come back to the Hospital.

When asked if he could
not have requested that another cardiologist on staff check the situation, Dr.
Moran said that he didn’t think to have another doctor check on the patient
because the patient seemed stable.

As we can see, Dr. Moran
himself testified that suspected ventricular tachycardia was reported to him at
least twice and that he discharged the patient without reviewing the rhythm
strips, the electrocardiogram or the X-ray, and without examining the
patient. He said he “discounted” the
“V-tach alarm” the computer spit out because of the nurse’s description of the
patient and his belief that the palpitations the patient was suffering were
consistent with his history of atrial fibrillation. Dr. Moran’s reasoning aside, his testimony
supports the factual findings of the Judicial Hearing Committee.

The Judicial Hearing
Committee, having made its factual findings, concluded that Dr. Moran ignored a
red flag that could have signaled a lethal condition for Patient No. 2. The Judicial Hearing Committee correctly
observed that Dr. Dohad, in his peer review report, had opined that to
discharge Patient No. 2 under the circumstances was “egregious” and below the
standard of care.

This notwithstanding,
Dr. Moran notes a portion of Dr. Dohad’s testimony before the Judicial Hearing
Committee wherein he stated: “[W]hen
you’re discharging a patient on the phone you have a full conversation with the
nurse and you look for red flags. If
there are none, then you’re okay, you may send the patient home.” Based on this testimony, Dr. Moran claims the
issue in the case is simply whether he requested information from the
nurses. Because he did talk to the
nurses and he saw no red flags, he says he was in the clear.

In so arguing, Dr. Moran
distorts Dr. Dohad’s testimony. Dr.
Dohad also said that a doctor cannot rely on a nurse’s description of a
telemetry strip and cannot ask a nurse a question like whether the rhythm is
irregularly irregular. He further stated
that when a nurse calls to notify a doctor of a possible ventricular
tachycardia, the doctor has to assume the worst possible scenario, whether the
patient seems stable or not. Then, the
doctor has to make an effort to double check the situation and have the strip
faxed to him or have a colleague take a look at it.

Dr. Dohad stated that it
is extremely rare to discharge a patient without seeing him or her in
person. Moreover, he said that a doctor
has to review what needs to be reviewed on remote web access and that the nurse
needs to affirm that there are no complications. He also stated, “Here, the nurse is telling
you it’s not right and you still discharge the patient.” Dr. Dohad continued on, asking “Why would you
discharge the patient?” He further
asked: “With that strip? I’m not sure any cardiologist would discharge
that patient.” When asked whether he was
saying that because Dr. Moran didn’t have the strip faxed to him before giving
discharge orders his treatment fell below the standard of care, Dr. Dohad
replied, “No question.”

(3) Patient Nos. 3 and 4—

> (a)
introduction

Dr. Moran was charged
with “perform[ing] peripheral vascular procedures without adequate evaluation
of the benefits against the risks in” the treatment of eight identified
patients, including Patient Nos. 3 and 4.
In its findings and conclusions, the Judicial Hearing Committee
stated: “The JHC recognizes that, in
general, the aggressive style of treatment employed by Dr. Moran . . . is an
accepted approach practiced by a minority of practitioners. However, a majority of the JHC concludes that
these cases, most notably [Patient Nos. 3 and 4], demonstrate an unacceptable
pattern of aggressive care with an inadequate regard for an appropriate surgical
option. The JHC agrees with the concern
that this overly aggressive pattern of treatment created virtually
non-reconstructible surgical situations. . . .
Dr. Moran’s own testimony confirmed the JHC’s conclusion that there is
virtually no instance in which he would offer surgery as an alternative. . . .”

Dr. Moran attacks these
findings as being unsupported by the evidence because: (1) there was no evidence to show that he
ever failed to refer a patient to surgery where it would have been better to do
so; (2) there was no evidence to show that his treatment actually compromised a
surgical option; and (3) the findings were based exclusively on speculative
expert witness testimony. His arguments
are unpersuasive.

First, the Judicial
Hearing Committee found that Dr. Moran exercised “an inadequate regard” for
appropriate surgical options. It did not
find that he had not ever referred a patient to surgery when it would have been
better to do so. Second, the record
contains ample evidence to support a finding that Dr. Moran exercised
inadequate regard for surgical options and that his treatment compromised the
surgical options for Patient Nos. 3 and 4.
Third, Dr. Dohad’s expert witness testimony was based on a review of
medical records, charts and films, and the Judicial Hearing Committee’s
findings were not based entirely on his testimony in any event.

>(b)
interviews with Drs. Wallace and Borzatta

As we recall, the
Hospital was first alerted to the situation with Patient Nos. 3 and 4 by
vascular surgeons Drs. Wallace and Borzatta.
Dr. Wallace reported that Dr. Moran had placed stents all the way from
the groin to the mid-calf of Patient No. 3 and thereby created a situation that
was surgically non-reconstructible. Dr.
Borzatta reported what he felt was injurious care rendered by Dr. Moran to
various patients, including both Patient No. 3 and Patient No. 4, who
ultimately suffered an amputation. Drs.
Wallace and Borzatta each attended the Medical Executive Committee meeting on
February 16, 2006.

The minutes of that
meeting read in pertinent part: “Dr.
Borzatta reviewed 2 patients that he had cared for . . . who were referred by
[Dr. Moran]. The patients had
claudication^[href="#_ftn5"
name="_ftnref5" title="">[5]^]
and one had undergone 14 peripheral vascular procedures by [Dr. Moran] over 18
months. The other patient had undergone
10 peripheral vascular procedures and he felt that this was excessive and a
danger to patients. In both patients he
found multiple bare metal jackets. . . .
[¶] Dr. Borzatta was questioned by members of [the Medical Executive
Committee], and stated that what was at issue was the number of interventions
that these patients had undergone as well as the locations of the stents and
the types of stents that were used. His
assessment was that bare metal stents were not a good choice and the number and
location of stents made later intervention by a vascular surgeon extremely
difficult. He stated that both patients
were claudicators, but were not in a limb threatening situation when these
peripheral vascular procedures were done by [Dr. Moran]. Intervention should not upgrade the patient’s
risk to a potential limb loss situation.
He felt that more than 1 intervention was too many for someone with
claudication without having a limb in jeopardy.”

The minutes continued: “Dr. Wallace agreed that it was not
appropriate for distal stents to be placed unless there was disabling
claudication. Dr. Wallace shared one of
the two patients that Dr. Borzatta had referenced. He stated that he had been asked by [Dr.
Moran] to perform peripheral by-bass surgery.
He accepted the patient . . . , but then realized that stents had been
placed from the groin down through the profunda and femoral arteries. He felt that doing a peripheral by-pass down
to the foot was too risky, and refused to operate. . . . [¶] Both vascular surgeons felt that the
number of interventions, the number of stents, the choice of stent type and
their location represented a variation in the standard of practice in the community
and represented a danger to these patients.

>(c) Dr. Dohad’s report and testimony

With regard to Patient
No. 3, Dr. Dohad noted in his report that 14 vascular procedures had been
performed over three years. He stated
Dr. Moran had utilized a “very aggressive approach to a benign complaint,”
certain interventions “[did] not appear to be justified,” and “there [was] a
loss of surgical targets.” He also
wrote: “Stents crossing joints are at
best controversial and clearly alters future surgical technique and
options.” Dr. Dohad concluded that the
treatment fell below the standard of care and stated: “This case itself illustrates disregard for
interventional principles, natural history of the disease, . . . and disregard
for alternative options from the surgical stand point and eventually horrendous
outcome for the patient which may lead to right above knee amputation . . .
.”

When he testified before
the Judicial Hearing Committee, Dr. Dohad said Dr. Moran had performed
“increasingly complicated procedures” using “the same strategy of
multi-modality intervention even though repeatedly failing.” Dr. Dohad concluded that Patient No. 3 had
been converted from a fairly stable patient with claudication to someone who
had severe pain at rest and that her surgical options and alternatives had been
compromised. In other words, she had
gone from someone with a “lifestyle interferon symptom” to someone with a
limb-threatening condition. He described
the treatment of Patient No. 3 as “egregious.”

Turning to Patient No.
4, Dr. Dohad wrote in his report, inter alia, that the patient had undergone
multiple vascular procedures in two years and that “[v]ery aggressive
interventional strategies” were employed to treat moderate symptoms. He again wrote: “Stents crossing joints are at best controversial
and clearly alters future surgical technique and options.” In conclusion, Dr. Dohad said the treatment
of the patient was inconsistent with the standard of care and further stated: “Reviewing this case reveals significant
compromise of surgical targets, use of extensive aggressive multi modality
procedures with limited success, recurrent restenosis and the inability to step
back and consider no further intervention. . . . Overall this procedure has significantly
jeopardized this patient with increased likelihood for limb loss and poor
salvage due to loss of surgical targets.”


The
evidence before the Judicial Hearing Committee showed that Patient No. 4 did
indeed suffer an above-the-knee amputation.
When Dr. Dohad was asked whether Dr. Moran’s procedures were medically
responsible for, and causally related to, the above-knee amputation, Dr. Dohad
replied, “I think clearly a contributor, absolutely.” He also said that the patient did not start
out with a “drastic indication” but ended up with a “drastic outcome.”

Dr. Dohad
testified: “A loss of limb above the
knee carries a very poor prognosis. In
general, an above-knee amputation, . . . can have a mortality of about 50
percent over the next two to three years.
So I think any time we embark on . . . interventions that are this
extensive — there may be a time, even if we have indulged in the first one or
second one, there must be a time where we have to step back and say enough is
enough and maybe you should make a search for alternative procedures or leave
the patient alone, especially if the patient doesn’t have limb-threatening
ischemia. [¶] I found that fairly
evident in this case . . . . At some
point we could have stepped back and perhaps offered this patient a surgical
vascularization . . . .”

>(d)
Dr. Moran’s testimony

The Judicial Hearing
Committee questioned Dr. Moran at length about his treatment of Patient Nos. 3
and 4. Members of the committee
expressed great concern about the number of procedures he had performed and
questioned whether there was not a point at which he should have stopped
performing additional procedures and told the patients that there was nothing
more he could do without risking greater harm.
He was asked, for example, whether it wasn’t an option to tell the patient
that if she wouldn’t quit smoking he was not going to perform a risky procedure
on her. Dr. Moran responded, “My ethics
and morals don’t let me do that.”

In discussing Patient
No. 3, Dr. Moran was asked, “Did you ever have any physician ever come to you
and tell you, ‘Gee, Dr. Moran, by you placing these stents, we can’t perform
bypass’?” Dr. Moran replied, “Just Dr.
Coccia.” Thus, Dr. Moran himself
admitted another doctor had informed him that because of his use of stents he
had precluded the possibility of a surgical bypass being performed.

>(e) substantial evidence

Dr. Moran cites >Hongsathavij v. Queen of Angels Etc. Medical
Center (1998) 62 Cal.App.4th 1123 in support of his position that the
foregoing evidence was insufficient to support the findings. As stated in that case: “[A]n appellate court must uphold
administrative findings unless the findings are so lacking in evidentiary
support as to render them unreasonable.
[Citations.] A reviewing court
will not uphold a finding based on evidence which is inherently improbable
[citation] or a finding based upon evidence which is irrelevant to the
issues. [Citations.] . . . Finally, we note that the opinion
testimony of expert witnesses does not constitute substantial evidence when it
is based upon conclusions or assumptions not supported by evidence in the
record. [Citations.]” (Id. at
p. 1137.)

Dr. Moran hangs his hat
on the final sentence of the above-quoted language and complains that the
Medical Executive Committee relied on speculative testimony by Dr. Dohad. We observe that before preparing his peer
review report, Dr. Dohad went to the Hospital on three occasions and reviewed
the patients’ charts and films. He then
wrote a five-page summary of the treatment of Patient No. 3 a four and one-half
page summary of the treatment of Patient No. 4.
After Dr. Dohad prepared his report, but before he testified before the
Judicial Hearing Committee, Dr. Dohad had an opportunity to review Dr. Moran’s
medical records concerning these two patients.
During his testimony before the Judicial Hearing Committee, Dr. Dohad
was questioned about those records, which were presented as exhibit Nos. 619
and 623 and which form a part of the record on appeal.

Dr. Dohad, who
characterized himself as aggressive with respect to interventional cardiology
and endovascular procedures, opined that Dr. Moran’s treatment of Patient Nos.
3 and 4 was “[v]ery aggressive” and that surgical options had been compromised
and alternatives to interventions should have been considered. Dr. Dohad was not the only doctor who
expressed an opinion with respect to Patient Nos. 3 and 4, however. Drs. Borzatta and Wallace each opined that
Dr. Moran had performed too many interventions.
Dr. Borzatta in particular opined, as summarized in the Medical
Executive Committee minutes, that Dr. Moran’s use of stents “made later
intervention by a vascular surgeon extremely difficult.” He further indicated that where the “patients
. . . were not in a limb threatening situation when these peripheral vascular
procedures were done by [Dr. Moran,]” his interventions upgraded their “risk to
a potential limb loss situation.”
Finally, Dr. Moran himself admitted that Dr. Coccia had told him,
generally, that by Dr. Moran’s “‘placing these stents, [they couldn’t] perform
bypass’[.]”

Given the foregoing, we
certainly cannot conclude that the findings are so lacking in evidentiary
support as to render them unreasonable.

(4) Denial of Reappointment—

Dr. Moran also maintains
that the denial of reappointment was not supported by substantial
evidence. He says that even if the
evidence supported the charges regarding Patient Nos. 1, 2, 3 and 4, the few
sustained charges did not warrant ending his career.

The Supreme Court has
“recognized that a ‘doctor’s license . . . does not determine qualification for
hospital privileges or establish competence to engage in specialties in the
hospital . . . .’ Indeed, the
‘determination of the standards to be applied in granting privileges involves a
legislative judgment [citation], and just as courts have largely deferred to
administrative expertise in determining whether an applicant is qualified to
practice a profession . . . they should defer to administrative expertise in
determining whether the professional is qualified to take on the additional
responsibilities involved in a grant of hospital privileges.’ [Citations.]”
(Gill v. Mercy Hospital (1988)
199 Cal.App.3d 889, 897.)

In short, it is not our
place to substitute our judgment for that of the Governing Board. This would be true even if, in our view, a
different decision seemed equally or more reasonable. (Cf. Cipriotti
v. Board of Directors, supra,> 147 Cal.App.3d at p. 155.)



>C.
Motions for Discovery and Augmentation of Administrative Record:

> (1)
Motion for Discovery—

In the writ proceedings,
Dr. Moran filed a motion to compel discovery and to augment the administrative
record with the results of the discovery.
He asserted that the Governing Board had failed to perform an independent
review of any of the Judicial Hearing Committee proceedings or findings and had
failed to review or consider the recommendations of the Appeal Board. He further asserted that the final decision
of the Governing Board contained findings that were neither discussed nor voted
upon by the Governing Board. Dr. Moran
maintained that he was, therefore, deprived of “any legitimate appellate
procedure” and denied a fair hearing.

Dr. Moran sought
discovery of all documents distributed to and produced by the Appeal Board and
the Governing Board and, after receipt of the documents, the opportunity to
depose one member of the Appeal Board and one member of the Governing
Board. He claimed that this would allow
him to determine whether the Appeal Board and the Governing Board had complied
with Hospital bylaws in their review and would enable him to prove that he was
denied a fair hearing. The court denied
the motion.

On appeal, Dr. Moran
asserts that the court erred in denying his motion. He maintains that the court had the
authority, under Code of Civil Procedure section 1094.5, subdivision (e), to
grant the requested relief. That
statutory provision states in pertinent part:
“Where the court finds that there is relevant evidence that, in the
exercise of reasonable diligence, could not have been produced or that was
improperly excluded at the hearing before respondent, . . . 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.” (Code Civ. Proc.,
§ 1094.5, subd. (e).)

Dr. Moran, citing >Windigo Mills v. Unemployment Ins. Appeals
Bd. (1979) 92 Cal.App.3d 586, 596-597, emphasizes that Code of Civil
Procedure section 1094.5, subdivision (e) permits the court to consider
evidence that could not have been produced during the administrative
proceedings. He says he could not have
provided the Governing Board with evidence that it was not affording him a fair
hearing, because he could not have known that before the Governing Board took
its actions. In other words, he argued
that only if he were permitted to do discovery to obtain evidence showing that
the Governing Board acted improperly would he then be able to present his
argument that the Governing Board denied him a fair hearing.

As stated in >Pomona Valley Hospital Medical Center v.
Superior Court (1997) 55 Cal.App.4th 93, “discovery under section 1094.5,
unlike general civil discovery, cannot be used to go on a fishing expedition
looking for unknown facts to support speculative theories. The stringent requirements set forth in
section 1094.5, subdivision (e) require the moving party to identify what
evidence is sought to be discovered for purposes of adding it to the record; to
establish the relevancy of the evidence; and to show that either (a) any such
relevant, additional evidence was improperly excluded at the administrative
hearing, or (b) it could not have been produced at the hearing with the
exercise of reasonable diligence.
(§ 1094.5, subd. (e).) If
the moving party fails to make the required showing, it is an abuse of the
court’s discretion to allow posthearing discovery.” (Pomona
Valley Hospital Medical Center v. Superior Court, supra, 55 Cal.App.4th at
p. 102.)

In his motion, Dr. Moran
sought evidence to show that he was denied a fair hearing because the Appeal
Board and the Governing Board had failed to comply with the Hospital’s bylaws
in performing the administrative review.
However, he did not cite any of the bylaws in support of his
position. He made broad and unsupported
claims about what procedures the Appeal Board and the Governing Board were
supposed to follow and claimed that he needed evidence to demonstrate the lack
of compliance with the purported procedures.
He failed to demonstrate that the evidence he sought was relevant to
show a breach of the bylaws, inasmuch as he neither quoted nor cited the bylaws
on the topic. This being the case, he
failed to make the required showing under Code of Civil Procedure section
1094.5, subdivision (e), and the court did not abuse its discretion in
declining to grant his request for discovery on this point.

(2) Motion to Augment—

The discovery motion
having been denied, Dr. Moran sought to obtain by another avenue information on
the manner in which the final meeting of the Governing Board was
conducted. He procured the declaration
of Carole Bowman, a member of the Governing Board he had known for 10 years.

The declaration was
filed under seal. In that declaration,
Bowman described the June 25, 2009 meeting of the Governing Board, which she
stated was its final meeting before the sale of the Hospital to Mission
Hospital on June 30, 2009. She disclosed
what the Governing Board was “told” concerning Dr. Moran’s appeal, including
what information was provided about the administrative proceedings and
findings, what instructions were given to the Governing Board on how to process
the appeal, and what effect the Governing Board’s decision would have upon Dr.
Moran. She stated, inter alia, that the
Governing Board was “told” the Judicial Hearing Committee and the Appeal Board
each had found that three particular events had occurred. However, she also said that the Governing
Board itself did not independently review the evidence. In her declaration, Bowman did not identify
the individual who “told” the Governing Board about the information, gave the
Governing Board instructions on how to proceed in determining the appeal, or
explained the ramifications to Dr. Moran.
She declared that there was no vote upon the recommendation to deny Dr.
Moran’s reappointment.

The Hospital opposed the
motion to augment on several grounds:
(1) the information in Bowman’s declaration concerning what was “told”
to the Governing Board was subject to the attorney-client privilege, inasmuch
as the information in question was provided by Attorney Christensen to his
client, the Governing Board; (2) Hospital bylaws section 10.5-10 specified that
peer review matters, including appellate review proceedings, were confidential,
and precluded disclosure; (3) the information in the declaration concerning
what the Governing Board was “told” was inadmissible hearsay; and (4) the
information in the declaration was irrelevant, inasmuch as the Hospital bylaws
required the affirmance of the Judicial Hearing Committee decision once the
Appeal Board determined that the findings of the Judicial Hearing Committee
were supported by substantial evidence.

The Hospital’s
opposition was supported by several declarations, including the declarations of
both Attorney Christensen and Carmen, president of the Governing Board. Attorney Christensen declared that, at the
June 25, 2009 meeting, Bowman disclosed that she had a personal, business or
professional relationship with Dr. Moran, but she did not recuse herself from
participating in the meeting. He further
declared that he had hand delivered to each member of the Governing Board,
including Bowman, a letter upon which was written “CONFIDENTIAL ATTORNEY/CLIENT
COMMUNICATION.” In addition, Attorney
Christensen stated that he went through his letter line by line at the meeting
and that he advised the members of the Governing Board that the statements at
the meeting were confidential and privileged.
He further stated that the members of the Governing Board asked him
questions about Dr. Moran’s appeal and that they “engaged in an extensive
discussion.” From his point of view, the
entire discussion was privileged. Finally,
Attorney Christensen declared that he was the source of most of the information
Bowman described, but that she had, many times, inaccurately described what the
Governing Board was or was not “told.”

Carmen declared that he
had been in attendance at the June 25, 2009 meeting. Attached to his declaration was a copy of the
minutes of the meeting, which Carmen declared had been prepared in the ordinary
course of business, at or about the time of the meeting. Carmen further declared that, to the best of
his recollection, the minutes accurately described the Governing Board’s proceedings
with respect to Dr. Moran’s appeal. The
minutes stated that Attorney Christensen had discussed the actions of the
Medical Executive Committee, the findings and decision of the Judicial Hearing
Committee, the findings and recommendation of the Appeal Board, and applicable
legal considerations. The minutes
further stated that extensive discussion had followed and that upon a motion
duly made and seconded, the Governing Board, by voice vote, had voted to uphold
the recommendation of the Medical Executive Committee to deny Dr. Moran’s
reappointment. Finally, the minutes
stated that the Governing Board had authorized Carmen to work with Attorney
Christensen to prepare the final decision of the Governing Board.

In concluding its
opposition, the Hospital asked that if the court should decide to permit
Bowman’s declaration to be added to the record, then it should also allow the
Hospital to submit declarations to show the falsity of Bowman’s statements.

The court ordered the
deposition of Bowman, to address who was in attendance at the June 25, 2009
meeting, whether Attorney Christensen was present,

who
presented the information she disclosed in her declaration, and whether she was
advised that she had the authority to waive the attorney-client privilege. At her deposition, Bowman explained that she
was a branch manager of a bank and that Dr. Moran was a customer of the bank
whom she had known for 10 years. Bowman
acknowledged that Attorney Christensen was present at the June 25, 2009
meeting. She said that Carmen introduced
Attorney Christensen to the Governing Board and said he was going to provide a
timeline of events with regard to Dr. Moran and “what the appeal board had gone
through the process.” Bowman said that
Attorney Christensen read a docum