CALIFORNIA SUPREME COURT TO DECIDE AUTHORITY OF HEARING OFFICER PRESIDING OVER MEDICAL STAFF PEER REVIEW PROCEEDINGS.

Two years ago, the Court of Appeal in Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 531 held that, "[i]n order to ensure that the [medical peer review] hearings mandated by the Business and Professions Code proceed in an orderly fashion, hearing officers must have the power to control the parties and prevent deliberately disruptive and delaying tactics. The power to dismiss an action and terminate the proceedings is an important tool that should not be denied them." (Id. at p. 561.)

This year, a different Court of Appeal held in Mileikowsky v. West Hills HMC (2007) 154 Cal.App.4th 752, that it must "respectfully part company with the court in Tenet Healthsystem on the question whether the hearing officer, acting on his or her own authority, can terminate a [hospital peer review] hearing . . . ." (Id. at p. 772.) The West Hills HMC court held that, contrary to the result reached in the Tenet Healthsystem appeal, the hearing officer had no authority to dismiss an action or terminate peer review proceedings in order to prevent disruptive or delaying tactics.

The extent of the hearing officer's authority in hospital peer review proceedings is of tremendous importance because hospital peer review is critical to protecting the public's health from "those healing arts practitioners who provide substandard care or who engage in professional misconduct." (Bus. & Prof. Code, sec. 809, subd. (a)(6) & (a)(7).)

On December 12, 2007, the California Supreme Court granted West Hills HMC's petition for review. West Hills HMC is represented in the Supreme Court by Horvitz & Levy LLP partners David Ettinger and Tom Watson. Questions concerning this case can be directed to Tom Watson (818-995-0800 or htwatson@horvitzlevy.com).

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