Many California medical staffs may be looking to start 2022 with updated bylaws. A recent case, Bichai v. Davita, Inc. (2021) 72 Cal.App.5th 1126, stands as a reminder that the bylaws cannot set forth a stricter burden of proof to be applied at a judicial review hearing than what is prescribed by California law.
After a series of events and allegations of unprofessional conduct and disruptive behavior, the medical staff of a DaVita health care facility recommended the denial of a physician’s application for medical staff membership and privileges. The physician challenged the recommendation and requested a hearing, as permitted under California Business and Professions Code § 809. The hearing officer served as arbitrator and determined the physician failed to establish he was capable of meeting the qualifications for membership and privileges as set forth in the bylaws. The physician then challenged the decision by filing a lawsuit.
The physician argued the medical staff bylaws set forth a burden of proof inconsistent with the California Business and Professions Code and that the hearing officer applied the wrong burden of proof as a result.
California Business and Professions Code § 809.3(b) provides that “[i]nitial applicants shall bear the burden of persuading the trier of fact by a preponderance of the evidence of their qualifications by producing information which allows for adequate evaluation and resolution of reasonable doubts concerning their current qualifications for staff privileges, membership, or employment. . .”
The court in this case opined that “preponderance of the evidence” means one side outweighs the other, one side is more convincing, or the evidence makes one side more probable. Thus, by applying this standard, the physician, for example, would have to show it is more likely than not that he is qualified for medical staff membership and privileges.
The bylaws at issue, however, prescribed that “[t]he Physician who requested the hearing shall thereafter have the burden of proving that the adverse action or recommendation lacks any substantial factual basis, or is otherwise arbitrary or capricious.”
The court opined that “substantial” means it is possible or credible. It is a higher bar than preponderance of evidence and, in this context, places a more difficult burden on the physician. By applying this standard, the court opined, the physician must prove there is no possibility the medical staff’s action is reasonable. In other words, the physician must demonstrate there are no facts to support even a remote finding or possibility that the medical staff’s allegations are accurate and the action taken reasonable.
Therefore, the court determined “the Bylaws’ burden of proof is not consistent with the statutory requirements and, as a result, is not enforceable.” The court ruled the hearing unfair and ordered a new hearing be conducted with the correct burden of proof.
This case reminds medical staffs to keep hearing procedures fair and apply the statutory requirements. Imposing a more stringent burden is not enforceable and deems the hearing as unfair.
We advise medical staffs on peer review processes and procedures helping to ensure medical staffs comply both with their duty to oversee quality of care and conduct peer review in a manner consistent with California law.