On appeal Dr. Michalski asserts (1) Scripps acted in bad faith in denying his
applications for medical staff privileges by virtue of an improper review and summary
denial; (2) the Board improperly applied an "independent judgment" standard of review
to overturn the JRC's decision to reject the Medical Executive Committee's (MEC's)
recommendation to deny Dr. Michalski's applications for medical staff privileges; (3) the
Board failed to accord "great weight" to the JRC's findings and conclusions; and (4) the
Board's decision to reverse the JRC's decision was not supported by the evidence and
constituted an abuse of discretion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Findings of Sexual Harassment
According to the Medical Board's decision, which was issued on December 3,
2008, Dr. Michalski treated a female lab technician in a "self-centered, insensitive, and
exploitative manner." Dr. Michalski made "numerous inappropriate and provocative
sexual comments" to her and also touched her breast and buttocks while they were
working in the cardiac catheterization lab (cath lab). On another occasion, while at a
restaurant, Dr. Michalski "pushed her against the wall in a hallway outside the women's
restroom." Dr. Michalski also entered the women's locker room at the hospital without
2
permission on several occasions when this employee was present, including one occasion
when she was in the process of getting dressed. The Medical Board found the employee's
testimony "clear and convincing," in spite of Dr. Michalski's denials.
The Medical Board found that Dr. Michalski also "made numerous inappropriate
and provocative sexual comments" to a second female employee at Sharp and "initiat[ed]
uninvited physical contact with her." On one occasion, Dr. Michalski "pulled up the hem
of [the second employee's] scrub top, exposing her midriff," and on another occasion he
"cupped her right buttock with his hand." In another incident, Dr. Michalski "pushed her
head down towards his crotch, as if simulating the commencement of oral sex." Dr.
Michalski entered the women's locker room when this second employee was there alone.
He then "picked up her civilian jeans and said, 'These things are so tiny,' and then put
them against his crotch and said, 'I think they'll fit.'" The Medical Board also found the
second employee's testimony to be "clear and convincing."
A third female employee, an X-ray technician, testified that Dr. Michalski "patted
her on the buttocks on two occasions in 2003."
Dr. Michalski made lewd comments and gestures to a fourth female Sharp
employee, a registered nurse, including a "gesture which could only be interpreted as
involving oral sex," and engaged in unwanted touching.
While at a conference dinner in Hawaii, Dr. Michalski told a Boston Scientific
representative "that he wanted to have sex with her; he suggested that it would be
profitable for her to do so, and warned that he would make continuing sales difficult if
she refused." The sales representative was so frightened by this conduct that she asked a
3
friend's husband to walk her back to her room "because she feared returning there
unaccompanied."
The Medical Board also made the following conclusion in response to Dr.
Michalski's own testimony: "While it cannot be concluded that Dr. Michalski knowingly
provided false testimony, it is clear, at a minimum, that in some instances he deliberately
emphasized or exaggerated matters to excuse his misconduct (e.g., since he was invited
into the women's locker room the first time, he concluded he was always welcome there)
and that in other instances he simply blocked out some events altogether (e.g., his
groping of [the lab technician] in the Cath Lab)."
Following these incidents, Dr. Michalski entered into an agreement with Sharp
acknowledging that such "harassment was illegal, unprofessional, and in violation of the
Medical Staff Bylaws and Policies." Dr. Michalski agreed to send written apologies to
the victims, to seek psychiatric counseling, and to refrain from any further harassing
conduct or retaliation.
However, at the time of this agreement Sharp did not know that Dr. Michalski was
engaged in a "secret, sexual relationship" with one of Sharp's registered nurses. After
that relationship ended a few months later, Dr. Michalski went to the nurse's home and
found another man there, "engaging in the type of relationship with [her] that Dr.
Michalski had previously enjoyed." Thereafter, Dr. Michalski left the following message
on the nurse's answering machine: "You are a sick, disgusting, fucking maggot. I came
over to give you a letter of apology for annoying you the past few days, and I fucking
heard you. You are lower than porta-potty shit." The next day, Dr. Michalski passed by
4
the employee at the hospital and whispered "whore." "Later that day, Dr. Michalski left a
voice mail message asking [her] 'to avoid . . . making any specific requests about my
patients . . . .'"
Upon learning of this continuing behavior, and his attempt to interfere with patient
care, Sharp placed Dr. Michalski on a brief suspension, and Sharp's MEC then
recommended that his medical staff privileges be revoked. Dr. Michalski requested and
received a JRC hearing at Sharp, and the Sharp JRC upheld the MEC's recommendation.
In early 2006, after hearing an appeal from the JRC decision, the Sharp Board agreed
with the MEC recommendation and the JRC determination, and revoked Dr. Michalski's
privileges. Among other things, the Board found that Dr. Michalski's harassing conduct
"had a sufficient nexus to the quality of care in the Hospital to warrant the termination of
his privileges on that basis alone." In July 2007 the Medical Board opened an
investigation to determine whether discipline by the Medical Board was appropriate.
B. The Peer Review Proceedings
1. Dr. Michalski's application for medical staff membership and privileges at the hospitals
In November 2007 Dr. Michalski applied for medical staff membership and
privileges at each of the Scripps Hospitals. On review of Dr. Michalski's application,
each of the hospitals' credentials committee (which assist the MEC's in reviewing
applications) identified a number of areas in which further inquiry was necessary,
including their discovery that Sharp had terminated Dr. Michalski's medical staff
membership in 2005, and that the Medical Board's investigation of Dr. Michalski was
5
ongoing. Thereafter, the credentials committees initiated correspondence with Dr.
Michalski seeking further information about their concerns. The credentials committees
also required Dr. Michalski to sign a release of information from the various institutions
where he currently or previously practiced. The credentials committees then sent
questionnaires to those facilities in an attempt to obtain further information regarding Dr.
Michalski's behavior and conduct. However, Dr. Michalski did not provide the
credentials committees with all of the requested information in a timely manner.
Moreover, the questionnaires about Dr. Michalski's conduct that were sent to the other
hospitals went largely unanswered. For example, when the office of the chief of staff of
Alvarado Hospital responded to the credentials committees on January 14, 2009, it sent a
routine one-page form letter, sent by the medical staff coordinator, that provided only Dr.
Michalski's dates of staff affiliation, staff status ("active"), specialty, and a statement that
"no medical staff disciplinary actions [had] been taken or [were] pending against" Dr.
Michalski. Nor did any of the other hospital facilities respond to the questionnaire.
According to Jerrold Glassman, M.D., the Scripps Mercy chief of staff at the time
of Dr. Michalski's applications, the Department of Navy responded to the letter, but
returned the questionnaire blank. Dr. Glassman also testified that he believed
questionnaires were also sent to "Sharp, to the La Mesa Cardiology Group, [and] to
Alvarado Hospital," and that he did not "recall any responses" to those questionnaires
either. As with the Navy, several of the facilities provided generic responses to the letters
sent by the credentials committees, but did not respond to the questionnaires.
6
Once the Medical Board issued its decision, Dr. Michalski characterized it as
"favorable" in letters he sent to the credentials committees.
Dr. Michalski thereafter requested a hearing to challenge all three
recommendations.
2. The JRC hearing
The parties agreed to a single hearing with a single JRC consisting of seven
physician members, with at least two members from each of the hospitals' medical staffs.
A hearing officer was appointed by stipulation of the parties, followed by the selection of
JRC candidates, who were then appointed by further agreement of the parties. On June 1,
2010, in preparation for the JRC hearing, the MEC's issued their notice of charges
consisting of the following six charges: (1) Dr. Michalski generally failed to meet his
burden under Scripps La Jolla Medical Staff Bylaws (bylaws) sections 2.3-1(a), 2.3-1(c),
and 4.2 as an applicant to the medical staff to resolve the MEC's reasonable doubts as to
whether he is professionally and ethically competent and able to work cooperatively with
others so as not to adversely affect patient care (the fitness standard); (2) Dr. Michalski
has an admitted history of behavioral misconduct and sexual harassment that does not
meet the fitness standard; (3) the September 14, 2005 report of the JRC of Sharp
demonstrates that Dr. Michalski does not meet the fitness standard; (4) the December 3,
2008 Medical Board decision demonstrates that Dr. Michalski does not meet the fitness
standard; (5) Dr. Michalski's self-serving responses to the hospitals' inquiries demonstrate
that he does not meet the fitness standard; and (6) Dr. Michalski's lack of forthrightness
in the Sharp JRC hearing demonstrates that he does not meet the fitness standard.
7
The JRC hearing began on August 11, 2010, and eight evidentiary sessions were
held from October 2010 through April 2011. The JRC issued its decision on May 5,
2011. Despite finding that Dr. Michalski's behavior at Sharp included "egregious acts of
sexual harassment" that were "aggressive, predatory, and reprehensible," the JRC rejected
the MEC's recommendations to deny Dr. Michalski's application. It was not a unanimous
decision. Two of the JRC members agreed with the MEC that Dr. Michalski did not meet
the fitness standard and that he should not be granted medical staff privileges at the
hospitals.
3. The MEC's appeal to the Scripps Health Board of Trustees
Following the JRC's decision, the MEC's timely appealed to the Board.
Section 7.5-6 of the bylaws establishes the Board's standard of review following a
JRC decision:
"DECISION
"a. Except as provided in Section 7 .5-6(b), within thirty (30) days after the conclusion of the appellate review proceedings, the Board of Trustees shall render a final decision and shall affirm the decision of the Judicial Review Committee if, in the independent judgment of the Board of Trustees, the Judicial Review Committee's decision is supported by the evidence, following a fair proceeding.
"b. Should the Board of Trustees determine that the Judicial Review Committee decision is not supported by the evidence, the Board may modify or reverse the decision of the Judicial Review Committee . . . . (Italics added.)
On December 12, 2011, the Board held a hearing on the MEC's appeal. On
January 9, 2012, the Board issued its decision, reversing the JRC's decision and
confirming the MEC's recommendation to deny Dr. Michalski's Application, finding that
8
"the MEC['s] recommendation to deny Dr. Michalski's application was, and remains,
reasonable and warranted." The Board's concluding paragraph states that its decision was
"based upon the JRC's factual findings and the hearing record, including but not limited
to the scope and severity of the prior misconduct which involved repeated abuses of Dr.
Michalski's superior position, Dr. Michalski's written statements to the MEC[']s and his
oral statements to this Board . . . ."
4. Dr. Michalski's petition for writ of mandate/trial court's decision
On March 7, 2012, Dr. Michalski filed a petition for writ of mandate in the
Superior Court of San Diego County seeking to overturn the Board's Decision. Prior to
the hearing on the petition, the trial court provided the parties with a written tentative
ruling indicating that the court was inclined to grant the petition. After hearing oral
argument, however, the court denied the petition. In so doing the trial court found that
"the Board properly exercised its independent judgment as it was required under the
Bylaws in reviewing the JRC's decision." The court found that "the Board gave great
weight to the JRC's factual findings, accepting most of those findings, rejecting those that
were not supported by substantial evidence and disagreeing with as to the conclusions to
be drawn from the others . . . ." The court further found that "the Board's decision is
supported by substantial evidence, including, but not limited to, the uncontroverted
evidence presented by the MEC[']s at the JRC hearing as to the meaning and application
of the Fitness Standard at the Hospitals—a standard that . . . is allowed to be more
stringent tha[n] those of other hospitals and of the Medical Board of California's
standards for licensure."
9
Dr. Michalski's timely appeal follows.
DISCUSSION
I. STANDARD OF REVIEW
The Court of Appeal in Hongsathavij v. Queen of Angels etc. Medical Center
(1998) 62 Cal.App.4th 1123, 1136-1137 (Hongsathavij) set forth the applicable standard
of review for this matter: "As to the function of the Court of Appeal, our function in this
context is the same as the superior court's, which was the same as the hospital's governing
body. 'Like the trial court, we also review the administrative record to determine whether
its findings are supported by substantial evidence in light of the whole record, our object
being to ascertain whether the trial court ruled correctly as a matter of law." [Citations.]
The appellate court thus does not review the actions or reasoning of the superior court,
but rather conducts its own review of the administrative proceedings to determine
whether the superior court ruled correctly as a matter of law. [Citation.] [¶] Moreover,
an 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.] Therefore,
even if a finding is supported by evidence, if that evidence is irrelevant to the charge, the
decision must be reversed for insufficient evidence."
Moreover, we may only overturn the decision denying Dr. Michalski's application
if (1) the Board proceeded without, or in excess of, its jurisdiction; (2) there was not a
fair trial; or (3) there a prejudicial abuse of discretion by the Board. (§ 1094.5, subd. (b).)
10
Dr. Michalski does not dispute that the hospitals acted within their jurisdiction or that
there was a fair trial. The only question we are thus presented with is whether there was
a prejudicial abuse of discretion by the Board.
Section 1094.5, subdivision (d) defines the abuse of discretion standard of review
applicable to Dr. Michalski's petition for writ of mandate: "[I]n cases arising from
private hospital boards . . . 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."
Moreover, as explained by the Court of Appeal in Weinberg v. Cedars-Sinai
Medical Center (2004) 119 Cal.App.4th 1098, 1106-1107 (Weinberg): "[I]n examining a
hospital board's decision, the superior court must determine two issues. [Citations.]
'First, it must determine whether the governing body applied the correct standard in
conducting its review of the matter. Second, after determining as a preliminary matter
that the correct standard was used, then the superior court must determine whether there
was substantial evidence to support the governing body's decision.'"
In writ proceedings, the trial court "presumes that the [administrative tribunal's]
decision is supported by substantial evidence, and the petitioner bears the burden of
demonstrating the contrary." (McAllister v. California Coastal Com. (2008) 169
Cal.App.4th 912, 921.) Further, because the hospital's governing body has "final
responsibility for the quality of its medical staff and care, . . . its decisions within this
domain are entitled to deference" by the court. (Weinberg, supra, 119 Cal.App.4th at p.
1109.)
11
II. ANALYSIS
A. The Board Properly Applied the "Independent Judgment" Standard Mandated by the Bylaws
Dr. Michalski asserts the Board erroneously applied the "independent judgment"
standard of review in reviewing the JRC's decision. He contends that the proper standard
of review was substantial evidence because the bylaws state that the review by the Board
"shall be in the nature of an appellate review." We reject this contention.
The bylaws specifically provide that the Board was required to use its independent
judgment in determining whether the JRC's decision was supported by the evidence:
"[T]he Board of Trustees shall render a final decision and shall affirm the decision of the
Judicial Review Committee if, in the independent judgment of the Board of Trustees, the
Judicial Review Committee's decision is supported by the evidence." (Bylaws ¶ 7.5-6,
subd. (a)], italics added.) The bylaws further provide that the Board can overturn the
JRC' s decision if it determines that the decision is not supported by the evidence.
(Bylaws ¶ 7.5-6, subd. (b).)
Every California hospital also must have an "organized medical staff responsible
to the governing body for the adequacy and quality of the medical care rendered to
patients" in the hospital." (Cal. Code Regs., tit. 22, § 70703, subd. (a), italics added.)
The medical staff must establish bylaws which "provide formal procedures for the
evaluation of staff applications and credentials, appointments, reappointments,
assignment of clinical privileges, appeals mechanisms and such other subjects or
conditions which the medical staff and governing body deem appropriate." (Id. at subd.
12
(b).) California hospital licensing law requires that "[m]embership on the medical
staff . . . be restricted to physicians . . . competent in their respective fields, worthy in
character and in professional ethics." (Cal. Code Regs., tit. 22, § 70701, subd. (a)(l)(E).)
Courts have recognized that "[the board's] primary duty is to its patients to insure
the competence of its medical staff. In the exercise of this duty, the hospital must be free
to establish and enforce selection and review procedures, so long as they do not result in
arbitrary or discriminatory practices." (Rhee v. El Camino Hospital Dist. (1988) 201
Cal.App.3d 477, 501; see also Weinberg, supra, 119 Cal.App.4th at p. 1109 ["Ultimate
responsibility for the discharging of this duty falls upon the Board, which is entitled to act
in accordance with principles of sound corporate governance."].)
Additionally, it has been recognized that courts are not hospitals and that the
Legislature has charged hospitals, not courts, to make medical staff appointment
decisions. (Lewin v. St. Joseph Hospital (1978) 82 Cal.App.3d 368, 384.) Moreover, as
this court stated in Medical Staff of Sharp Memorial Hospital v. Superior Court (2004)
121 Cal.App.4th 173, 181-182: "[T]he overriding goal of the state-mandated peer review
process is protection of the public and that while important, physicians' due process rights
are subordinate to the needs of public safety."
Where permitted by a hospital's bylaws, its governing body may, using its
independent judgment, completely overturn the decision of a medical staff-selected
hearing committee. (Hongsathavij, supra, 62 Cal.App.4th at p. 1135; Weinberg, supra,
119 Cal.App.4th at p. 1109; Ellison v. Sequoia Health Services (2010) 183 Cal.App.4th
1486, 1496-1497 (Ellison] ["Business and Professions Code section 809.05, subdivision
13
(a) has been interpreted to mean that a hospital governing body may exercise its own
independent judgment about evidence presented to a peer review committee composed of
medical staff, provided that it gives due weight to the findings of that committee and
provided that the hospital's bylaws do not require the governing body to apply a more
deferential standard of review."].)
Thus, under the plain language of the applicable bylaws, and the foregoing
authority, the Board properly used its independent judgment in determining whether to
reverse the JRC's decision.
In asserting that the role of hospital governing bodies are more limited than the
foregoing authority has established, Dr. Michalski cites the California Supreme Court's
decision in Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Ca1.4th
1259 (Mileikowsky). However, Mileikowsky is inapposite.
In Mileikowsky, a hearing officer terminated a peer review hearing due to the
physician's disruptive behavior during the prehearing process. The hearing officer's
action took place prior to any evidentiary hearing. The hearing committee never heard
evidence and was not involved in the hearing officer's decision. The physician appealed
to the hospital's board, which upheld the hearing officer's ruling dismissing the case. The
Court of Appeal held that the hearing officer did not have legal authority to dismiss a
hearing requested by a physician; only the hearing committee could do so. The Court of
Appeal also ruled that the governing body could not "correct" the hearing officer's legal
error merely by affirming it. Rather, in making appointment decisions, governing bodies
must evaluate the recommendations of the peer review bodies and give them great
14
weight. In contrast to the present case, in Mileikowsky, "the board gave no weight to the
actions of any peer review body" (Mileikowsky, supra, 45 Cal.4th at p. 1272, italics
omitted) because there was no hearing committee decision at all. (Ibid.) The board
simply ruled on the hearing officer's dismissal.
In asserting the Board should not have applied the independent judgment standard,
Dr. Michalski also relies on Bode v. Los Angeles Metropolitan Medical Center (2009)
174 Cal.App.4th 1224. In doing so, Dr. Michalski focuses on the Bode court's statement
that the phrase "in the nature of an appellate review" has been interpreted to mean that the
appellate board is not a trier of fact, and thus the appeals body is limited to determining
whether the JRC decision is supported by substantial evidence. However, the Bode court,
citing the Weinberg case, specifically recognized that (a) it is the hospital's bylaws that
determine whether or not the substantial evidence standard applies, and (b) that the
substantial evidence standard does not apply in hospitals that have adopted the
"independent judgment" standard. (Bode, supra, at p. 1236, fn. 6 [the "standard of review
for hospital appellate boards is found in each hospital's bylaws; because the bylaws at
issue [in Weinberg] did not contain language limiting the hospital's appellate body to the
substantial evidence rule, the appellate board could exercise independent judgment when
reviewing factfinding committee's decision, but still must accord those findings great
weight"].) The Court of Appeal in Bode also noted that the appeals body in that case
expressly stated that it was applying the substantial evidence standard. (Ibid.)
Here, by contrast the Board specifically stated that the standard of review
applicable in the present case was the independent judgment standard. (Bylaws ¶ 7.5-6,
15
subd.( a)].) The Board's interpretation of the Bylaws in this case, which specifically
provide for the "independent judgment" standard of review, was thus correct.
In Ellison, the Court of Appeal rejected the very argument Dr. Michalski makes in
this case. There, the Court of Appeal held that the phrase "nature of an appellate review"
and the independent judgment standard of review are complementary, not contradictory,
provisions. (Ellison, supra, 183 Cal.App.4th at p. 1497.) There, the JRC found that the
sanction proposed by the medical executive committee was not reasonable and warranted,
despite agreeing that the physician behaved inappropriately by fabricating certain
information. As in the present case, the hospital's appeal board in Ellison agreed with
most of the JRC's findings, but ultimately disagreed with the JRC as to the conclusion to
be drawn from those findings. The appeal board concluded that the appropriate penalty
was termination from the medical staff. The trial court and the Court of Appeal upheld
the hospital's decision, concluding that the appeal board appropriately applied the
"independent judgment" standard, regardless of the bylaws provision that the appeal shall
be in the nature of an appellate hearing. (Ibid.) The Ellison court also held that when the
bylaws provide that the appeal board has the authority to modify the JRC decision, the
board can impose a sanction on the practitioner even greater than that originally
recommended by the medical staffs executive committee or eventually proposed by the
JRC. (Id. at p. 1499.) Such authority is also present in Scripps' bylaws. (Bylaws ¶ 7.5-6,
subd. (b)].) The Ellison court thus rejected Dr. Michalski's argument that the phrase, in
the "nature of an appellate review," limits the appeal board's independent judgment.
16
B. The Board's Application of the Independent Judgment Standard in Finding Dr Michalski Did Not Meet the Fitness Standard
Dr. Michalski asserts that in reaching its decision the Board did not appropriately
apply the independent judgment standard of review but instead engaged in a "de novo
review," which "totally disregard[ed] the JRC' s findings of fact and conclusions." This
contention is unavailing.
The Board considered and gave great weight to all of the JRC's findings, even
adopting many of those findings as its own. On pages 2 through 4 of its decision, the
Board noted the many factual issues and JRC findings upon which the Board based its
decision. For example, the Board adopted the JRC's finding that Dr. Michalski's behavior
at Sharp was "aggressive, predatory, and reprehensible." The Board then determined
that, although the finding itself was accurate and supported by the evidence, the JRC's
conclusion about the significance of that finding was incorrect. The Board found that
"[s]uch professional misconduct in the hospital environment creates a significant risk to
the quality of patient care." The Board accepted the JRC's finding that there were no
reports of behavioral misconduct at Alvarado Hospital since 2004, but then exercised its
independent judgment in determining that "this fact does not necessarily lead to the
conclusion that Dr. Michalski has learned professional boundaries." With regard to the
witness testimony and other evidence that Alvarado Hospital has not disciplined Dr.
Michalski or had complaints of inappropriate conduct, the Board accepted this finding
and then exercised its independent judgment in recognizing that "the fact that Dr.
Michalski meets Alvarado Hospital's fitness standard, or for that matter, that he meets the
17
California Medical Board's standards for licensure, does not mean that Dr. Michalski
meets Scripps' standards for Medical Staff privileges."
The Board further relied on evidence showing that Michalski "has been under
intense and essentially uninterrupted scrutiny since the events at Sharp." Based on this
evidence, the Board noted that it was "concerned that once Dr. Michalski is no longer the
subject of such focused attention, he may revert to his prior misconduct."
The Board accepted the JRC's finding that Dr. Michalski completed the UCSD
PACE program regarding professional boundaries, but then exercised its independent
judgment as to the significance of that fact. The Board noted that, "When asked by the
Board what he had learned about himself and his professional responsibilities, from the
Program, Dr. Michalski said that the Program was predominately [sic] people who had
done something improper with a patient but he learned that he had not separated personal
admiration from professional admiration." The Board further observed that
"[i]nterestingly, Dr. Michalski told Dr. Kalish that he had learned that very same 'lesson'
before he participated in the PACE Program. . . . This suggests that, in fact, Dr.
Michalski learned nothing from the PACE Program at all."
The Board also considered and relied on the psychiatric reports submitted by Dr.
Michalski. The Board noted that one of the psychiatrists whose reports Dr. Michalski
submitted had never met with Dr. Michalski, and that Dr. Kalish, who did meet with Dr.
Michalski, "assumed that Dr. Michalski is [at] low risk for repeating his misconduct
because of the high price he has paid for his transgressions." The Board found that "[t]he
18
fact that Dr. Michalski has suffered consequences for his misdeeds is not enough to
resolve the Board's doubts."
The fact that the Board disagreed with the decision reached by five of the JRC
members, and instead agreed with the two dissenting JRC members and the three
Hospital MEC's, is of no moment. The Board properly exercised its independent
judgment, as it was required to do under the bylaws and California law.
C. The Board's Decision Is Supported by Substantial Evidence
Dr. Michalski asserts that the Board's decision is not supported by the evidence
and constitutes an abuse of discretion. This contention is unavailing.
Having concluded the Board applied the correct standard of review, we must next
determine whether there is substantial evidence to support the Board's decision.
(Weinberg, supra, 119 Cal.App.4th at pp. 1106-1107.) As discussed, ante, we give
deference to the governing body's decision and will uphold it "unless the findings are so
lacking in evidentiary support as to render them unreasonable." (Hongsathavij, supra, 62
Cal.App.4th at p. 1137.)
We conclude the Board's decision is supported by substantial evidence and should
be upheld. The Board considered the entire JRC record, accepted written submissions
from Dr. Michalski and the MEC's, heard oral argument by the attorneys for both sides,
heard direct testimony from Dr. Michalski, and deliberated on and considered all of that
information for over a month after the oral argument. The Board then provided a detailed
written decision on January 9, 2012, wherein it cited the most important evidence
19
supporting that decision and explained how and why it exercised its independent
judgment to reach a decision that disagreed with the JRC's determination.
The Board relied on the testimony of Dr. Glassman, an interventional cardiologist
and then chief of staff of Scripps Mercy Hospital. Dr. Glassman testified during the JRC
hearing that he was familiar with the cath lab environment at all three of the hospitals and
that Dr. Michalski's conduct caused him "great concern about patient safety" and concern
for "a safe environment for [Hospital] employees." He testified in detail concerning why
such conduct, and even the fear of the possibility of the repetition of such conduct, affect
patient safety and a physician's qualification under the fitness standard. The Board also
relied on Dr. Glassman's testimony that "the potential of great risk occurs in the cath lab
when you have a cath lab team that cannot work strongly together." Dr. Glassman
disagreed with Dr. Michalski's statement in his application that "none of the allegations
had anything at all to do with patient care, quality of care, or patient safety."
The Board also considered and cited the testimony of Dr. Michalski's witnesses at
the JRC hearing: Patricia Berry, Michael Koumjian, M.D., and Thomas R. Young, M.D.
The Board noted that while these witnesses testified "that they had not seen Dr. Michalski
engage in inappropriate conduct at Alvarado," they also testified "that they had never
witnessed any inappropriate conduct at Sharp." Dr. Koumjian went so far as to claim
that "Dr. Michalski's conduct at Sharp was nothing more than consensual flirting and the
'nurses liked it.'" Relying on this evidence, the Board concluded that the lack of any
disciplinary action taken by Alvarado Hospital indicated that "Alvarado may be willing
to tolerate behavior that other hospitals find unacceptable."
20
The Board also relied on evidence showing that Dr. Michalski may lack "the
insight and understanding necessary for him to make an enduring change, a persistent
problem noted by both the Sharp JRC in 2005 and the California Medical Board in
2008." The Board noted that the evidence at the hearing showed that Dr. Michalski has
consistently attempted to "minimize his harassment, lay blame for his termination from
Sharp on others and deny any connection between his acts and patient care." For
example, in Dr. Michalski's November 22, 2008 letter to the hospitals during the
application process, Dr. Michalski excused his presence in the women's locker room at
Sharp as something that "was not universally considered outrageous at that time," and
described his sexual harassment of one nurse as "inappropriate banter" and "incidental
touching." In that letter Dr. Michalski also dismissed one of his victim's complaints by
claiming that she was a "substandard performer."
The Board further relied on Dr. Michalski's November 12, 2007 letter, submitted
as part of his application. In this letter, Dr. Michalski blames his termination from the
Sharp medical staff on a vendetta from his former medical group who were "infuriated"
by his success. Dr. Michalski also claimed that none of the allegations "had anything at
all to do with patient care, quality care, or patient safety."
The Board's decision is also supported by Dr. Michalski's own statements to the
Board during oral argument, where the Board observed that Dr. Michalski "expressed no
remorse for the damage he had inflicted but instead continued to refer to how
embarrassing this has been for him." That finding by the Board is supported by the
transcript of that oral argument, where Dr. Michalski characterized his conduct as "a
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source of tremendous embarrassment to me . . . ." As the Board noted, this pattern of
excusing and minimizing his harassing conduct was not new. The Sharp JRC had already
found that "Dr. Michalski consistently denied allegations that were unwitnessed; those
that were, he tossed off as playful, or of no real significance. He appeared to have no
regard or thought for anyone else's feelings. . . . He indicated very little, if any, honest
remorse about his actions."
A similar conclusion was reached by the Medical Board: "While it cannot be
concluded that Dr. Michalski knowingly provided false testimony, it is clear, at a
minimum, that in some instances he deliberately emphasized or exaggerated matters to
excuse his misconduct (e.g., since he was invited into the women's locker room the first
time, he concluded he was always welcome there) and that in other instances he simply
blocked out some events altogether (e.g., his groping of [the lab technician] in the Cath
Lab)."
The Board further found: "In the independent and unanimous judgment of the
Board, based upon the JRC's factual findings and the hearing record, including but not
limited to the scope and severity of the prior misconduct which involved repeated abuses
of Dr. Michalski's superior position, Dr. Michalski's written statements to the MEC[']s
and his oral statements to this Board, the MEC['s] recommendation to deny Dr.
Michalski's application was, and remains, reasonable and warranted."
In his reply brief, Dr. Michalski asserts there is no evidence, as required by
Scripps bylaws, that there are questions concerning his "current" fitness to practice
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medicine. In doing so he points to the evidence presented at the JRC hearing, which
concerned conduct that occurred nine years earlier.
However, as detailed ante, in reaching its decision the Board did not rely solely
upon that evidence. It also relied upon letters he sent to hospitals in 2007 and 2008 as
part of the application process. In the 2007 letter he blamed his termination from Sharp
as based on a "vendetta" by his former medical group. In the 2008 letter he attempted to
minimize and excuse his conduct as nothing more than "inappropriate banter" and
"incidental touching" and went so far as to dismiss one victim's complaints by referring to
her as a "substandard performer."
Further, the Board relied on his statements made to the Board at the hearing itself
where he expressed no remorse for the damage he had caused, instead stating that his
conduct was "a source of tremendous embarrassment" to him.
Thus, we conclude substantial evidence supports the Board's decision.
DISPOSITION
The judgment is affirmed. Defendants to receive costs on appeal.