Submitted to, on September 19, 2010, at 2:55 PM.

Subject: VETO AB 1235 - Corporate Control of Medical Peer Review 

Legal Analysis by Barbara Hensleigh JD BSN and Ben Shwachman MD JD 

AB 1235 violates CA Court of Appeal Published Opinions in  Smith v. Selma Community Hosp. and Smith v. Adventist Health System/West 

and CA Supreme Court in Mileikowsky v. West Hills Hospital (2009)  


To the Honorable Governor of California, Arnold  Schwarzenegger,

Dear Governor Schwarzenegger ,

"Irgendwo muss doch eine Grenze sein" ! ! !

This time the California Hospital Association, CHA, crossed the Rubicon river.

By twisting the arms of the CA's Legislature, through their political maneuvers they sneaked into AB 1235 language that reverses 
three Published Opinions:

1. By the CA Court of Appeal, in Smith v. Selma Community Hosp., supra, 164 Cal. App. 4th 1478

2. By the CA Court of Appeal, in Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729 

3. By the CA Supreme Court in Mileikowsky v. West Hills Hospital (2009) 45 Cal. 4th 1259, 1272 

Following, please find, the legal Analysis of AB 1235 by Barbara Hensleigh JD BSN, dated August 31st and 
Ben Shwachman MD JD, on September 7, 2010.

Mrs. Hensleigh is a remarkable lady who is a nurse and an attorney, dedicated advocate, champion of lost causes and 
never giving up, see her short profile:

Partner at the firm  Andrews & Hensleigh, LLP

Areas of Practice

Health Care Litigation; Medical Antitrust; Physicians Contracts; Physicians Licensing


1985, California

Law School

University of Texas, J.D., 1985


University of Texas, B.S.N., 1978


American Bar Association (Member, Sections on Litigation and Health Law); California Women Lawyers; The State Bar of California; 

California Academy of Health Care Professionals.


Registered Nurse, State of Texas, 1978. 

Barbara Hensleigh represented over the years our colleagues victims of sham peer review, Brenton Smith MD and Tohidi MD, among others, see:

184. Retaliation Against Brenton R. Smith, M.D., and 

195. Retaliation Against Dr. Tohidi,

From:  Barbara Hensleigh

Subject:  RE: AB 1235 - Was CMA taken over by CHA ?

Date:  August 31, 2010 11:41:48 AM PDT


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. 
Barbara Hensleigh
Andrews & Hensleigh, LLP
350 S. Figueroa Street, Suite 975
Los Angeles, California 90071
(213) 617-7727
Fax (213) 617-7737
Ben Shwachman MD JD is member of the Board of Trustees of the California Medical Association, CMA, Past President of the Los Angeles
County Medical Association, LACMA, Past President of the Solo Group of CMA,...

Ben has been a powerful voice for many years and is at the forefront of the battlefield against Sham Peer Review,

Ben sums up very clearly the motivation of the California Hospital Association, CHA, behind their amendments of AB 1235: 

The bill was obviously put up to negate Gil's victory on limiting the discretion of the hearing officer."

In other words, following their defeat before the CA Supreme Court, in Mileikowsky v. HCA, West Hills Hospital Medical Center,... 
the California Hospital Association, CHA, went to CA's Legislature to reverse last year's decision handed down by the CA Supreme Court.

From:  Ben Shwachman MD JD

Subject:  RE: Immediate Withdrawal of AB 1235 - Was CMA taken over by CHA ?

Date:  September 7, 2010 8:16:14 AM PDT

" The bill (AB 1235) was obviously put up to negate Gil's victory on limiting the discretion of the hearing officer.... 

Ben "

The following organizations filed Amicus briefs against HCA, West-Hills Hospital,... and in Support of Gil N Mileikowsky, MD, 
in alphabetical order:

1.   American Association for Justice, AAJ 
2.   American College of Legal Medicine, ACLM
3.   American Medical Association, AMA
4.   Association of American Physicians & Surgeons, AAPS 
5.   California Academy of Attorneys for Health Care Professionals, CAAHCP 
6.   California Medical Association, CMA
7.   Consumer Attorneys of California, COA 
8.   The E-Accountability Foundation 
9.   Government Accountability Project, GAP 
10. Health Administration Responsibility Project, Inc., HARP  
11. Health Care Patient Advocates, HCPA  
12. Legal Affairs Council 
13. The Liberty Coalition 
14. National Whistleblower Center, NWC 
15. No Fear Coalition 
16. OSC Watch 
17. Semmelweis Society International, SSI 
18. Richard Levenstein, Esq
19. Union of American Physicians and Dentists, UAPD 
20. U.S. Bill of Rights Foundation 

Thank you very much for your anticipated decision to VETO  AB 1235, as it is still a "work in progress",

Respectfully submitted,

Gil Mileikowsky MD -  - President and Founder - Alliance For Patient - AFPS,