I am weighing on AB1235 because I am concerned. Maybe this is too little too late, but I represent many physicians, some belong to the CMA and some do not.
I am troubled by Kenneth Blumenfield’s statement that “it is near impossible to take appropriate punitive action against legitimate negligent practice and behavior”
of physicians. As someone laboring in the trenches against one particular hospital system (Adventist Healthcare/West), I know only too well how easy it is for a
hospital to take action against a physician’s privileges for reasons having nothing to do with patient care. See Mileikowsky v. West Hills Hospital (2009) 45 Cal.
4th 1259, 1272 (“It is not inconceivable a governing body would wish to remove a physician for a hospital staff for reasons having no bearing on quality of care.
In Smith v. Selma Community Hosp., supra, 164 Cal. App. 4th 1478 [my case], for example, there was evidence suggesting a hospital’s governing board might
have sought to terminate a physician’s privileges because the physician owned and operated clinics that competed with the hospitals’ corporate owners, or
because of a lawsuit between the physician and the corporate owner arising from the owner’s failed attempt to purchase the physician’s clinics.”).
See also, Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729 and the horrific facts set forth therein.
Dr. Smith has been practicing at the Adventist Hospitals under a preliminary injunction in place for the last two years. He has been to the Fifth Appellate District
three times on various appeals (three by the Adventist system attempting to get results that can be universally applied to help hospitals and harm physicians) and
is about to have a fourth appeal heard on whether the SLAPP statute applies to his current lawsuit under which we have the preliminary injunction.
In the past four years, four different judges (in four different lawsuits brought by Smith) have ordered Smith returned to the medical staff after he was illegally
terminated through peer review.
If that is not enough, Adventist Health (now owner of all the hospitals in the geographic area in which Smith practices and thus now controlling hospital privileging
for all physicians in the geographic area) summarily suspended the privileges of another physician, through an anonymous “expert” report and, as I understand it,
is using the same mechanism to rid itself of another physician who presents an economic threat to it. The anonymous expert turned out to be completely
unqualified to render opinions and was retained by the lawyers representing the hospital; i.e., it was a forensic report for litigation lawyers masquerading as a
neutral report for a peer review committee. Through manipulation of the peer review system, the hospital has managed to make the summary suspension “stick.”
The physician’s career now is essentially over. The hospital succeeded in sending a strong message to other physicians to get in line. It has now directed its
attention and significant war chest to the next victim.
As it now stands, the peer review system is strongly tilted in favor of hospitals. The hospitals appoint the hearing officers. It appoints the Judicial Review
Committee members. It has been laborious to say the least to get what we have in the court system, including recognition that peer review can be used for anti-
competitive purposes. In my view, it is easy for a hospital to take action against a physician, regardless of whether it is warranted. I’ve seen it happen over and
To pass a law making it easier for the hospitals to take action against a physician because now it is difficult to do so is unfortunate. At a micro level, AB 1235
surely will be used against Dr. Smith. It may also harm our hard fought victories for physicians in the appellate courts. Gil, please pass this on. Of course, I’m
available to answer any questions.
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