KENNARD, Dissenting. Plaintiff physician Gil N. Mileikowsky applied for obstetrical privileges and renewal of gynecological privileges at defendant West Hills Hospital and Medical Center in Los Angeles County. Defendant’s medical executive committee recommended a denial for these reasons: (1) plaintiff failed to disclose termination of his staff privileges at Century City Hospital in Los Angeles County; (2) plaintiff misrepresented that his resignation from Encino-Tarzana Regional Medical Center in Los Angeles County was voluntary; and (3) plaintiff attempted to perform a caesarean section on a patient at defendant hospital when he lacked obstetrical privileges there and ignored the patient’s request that he not treat her.
When plaintiff thereafter asked for a hearing, defendant hospital appointed an attorney as a hearing officer, as well as a reviewing panel consisting of defendant’s active physician members.
In the ensuing statutorily authorized discovery process, which spanned eight months, plaintiff repeatedly refused numerous requests for access to documents related to the revocation of his staff privileges at Cedars-Sinai Medical Center. Twice, the hearing officer issued an order for production of those documents, to no avail. Eventually, the hearing officer imposed, for plaintiff’s noncompliance and abuse of the peer review process, the sanction of terminating the proceedings.1 The majority holds that the hearing officer lacked the authority to do so. I disagree.
I.
Pertinent here is Business and Professions Code section 809.2, subdivision (d). That provision governs the discovery obligations and rights of the [1277]physician and the peer review body.2 It states that breach of those obligations is “good cause” for a continuance of the hearing, and provides that the discovery right does not extend to disclosure of confidential information regarding licensed personnel other than the physician in question. It then states: “The arbitrator or presiding officer shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires.” (§ 809.2, subd. (d), italics added.)3 The majority construes that provision as authorizing a hearing officer only to grant continuances and to redact or otherwise limit disclosure of confidential information relating to nonparties. (Maj. opn., ante, at p. 1270.) I do not share that overly restrictive interpretation.
In my view, the provision’s critical phrase is the one that I have just italicized, stating that, in ruling on “any request for access to information,” the hearing officer “may impose any safeguards” to protect the peer review process and to advance justice. On its face, this is language granting expansive authority, not language restricting authority.
According to the majority, however, the provision’s last sentence, which permits the hearing officer to “ ‘impose any safeguards the protection of the peer review process and justice requires,’ ” refers only to that provision’s penultimate sentence, which pertains to “the situation in which the material a physician requests to inspect or copy includes confidential information related to physicians who are not parties to the proceedings . . . .” (Maj. opn., ante, at p. 1270, italics added.) In that situation, the majority states, subdivision (d)’s last sentence “authorizes the hearing officer to redact or otherwise limit the information to protect the confidentiality of the nonparty physicians while . . . providing the physician access to otherwise discoverable material.” (Maj. opn., ante, at p. 1270.) But that interpretation is inconsistent with the rest of [1278]the statutory language that the hearing officer’s power to take appropriate action to protect the peer review process and to advance justice applies to “any request for access to information” (Bus. & Prof. Code, § 809.2, subd. (d), italics added), not just those involving nonparty physicians.
To not allow a hearing officer presiding over a peer review proceeding to impose a termination sanction for a party’s egregious abuse of the discovery process would undermine the hearing officer’s ability to control recalcitrant parties and curb flagrant abuses of the statutory discovery process. Contrary to the majority’s assertion (maj. opn., ante, at p. 1271), such authority would not interfere with the reviewing panel’s task of determining whether the physician possesses the requisite professional competence or qualifications. The sanctioning power at issue is aimed at protecting the integrity of the peer review process. Just as a court has the power to order dismissal as a sanction for egregious abuse of the discovery process (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subd. (d)), so too should a hearing officer presiding over a peer review proceeding have the power to impose a termination sanction. In either instance, great leeway is necessary to control parties who deliberately flout orders for discovery compliance. Without such authority, a physician who is the subject of a peer review proceeding can, through obstructive conduct, unduly delay the statutorily required reporting to the Medical Board of California of an unfavorable decision. (Bus. & Prof. Code, § 805, subd. (b).)
In summary, I am of the view that a hearing officer presiding over a peer review proceeding does have the power to impose a sanction of terminating the proceeding, but only in egregious circumstances. This case fits into that category, as discussed below.
II
I summarize the events leading up to the hearing officer’s order to terminate the peer review proceeding as a sanction for plaintiff’s willful noncompliance with rulings and orders made in the discovery process:
1. On July 16, 2002, the hearing officer wrote to the parties to complete the exchange of documents so that a hearing could be scheduled.
2. On July 17, the attorney for defendant hospital’s medical staff wrote to plaintiff stating that the medical staff had not received documents relating to actions taken against plaintiff by Cedars-Sinai Medical Center and that continued failure to produce the documents would result in amending the charges to include a failure to cooperate.
[12793]. On July 29, plaintiff wrote back, stating that he would respond by August 5.
4. On August 21, after plaintiff had failed to respond, the medical staff amended the notice of charges to include plaintiff’s refusal to cooperate in defendant hospital’s investigation of plaintiff’s suspension from Cedars-Sinai Medical Center. As the majority notes, the “amended notice referred to a report Cedars-Sinai had made to the Medical Board of California (Medical Board) and to the National Practitioner Data Bank, indicating Dr. Mileikowsky’s privileges at that facility had been suspended for actions falling into the adverse action classification of ‘Incompetence/Malpractice/Negligence.’ ” (Maj. opn., ante, at p. 1265.)
5. On September 3, plaintiff wrote to the hearing officer that he would not be able to respond to the amended charge until September 10.
6. On October 3, the medical staff notified the hearing officer that plaintiff still had not furnished the requested Cedars-Sinai Medical Center documents, and it requested the hearing officer to order plaintiff to comply.
7. On November 27, the medical staff wrote to the hearing officer that plaintiff’s failure to provide the Cedars-Sinai Medical Center documents made it difficult to set a formal hearing date.
8. On December 6, the hearing officer ordered the parties to exchange by January 10, 2003, all information and documents requested.
9. On January 6, 2003, the medical staff notified the hearing officer that plaintiff had furnished some of the requested documents, but not the Cedars-Sinai Medical Center documents.
10. On January 12, plaintiff wrote to the medical staff demanding reinstatement of his privileges and stating that he had provided releases authorizing defendant hospital and Cedars-Sinai Medical Center to exchange information.4
11. On January 14, the medical staff notified the hearing officer that the requested Cedars-Sinai Medical Center documents were in the possession of either plaintiff or his counsel, and it asked that the peer review proceeding be terminated.
[128012]. On February 5, the hearing officer determined that plaintiff had failed to respond to the various requests for information he was required to produce, that the Cedars-Sinai Medical Center documents were clearly relevant, and that plaintiff’s refusal to produce those documents was “deliberate and intentional.” The hearing officer, however, denied the medical staff’s request that termination of the peer review proceedings be imposed as a sanction, but he did order plaintiff to produce the documents at issue and advised him that failure to comply would lead to termination of the peer review proceeding.
13. Plaintiff then informed the hearing officer that he would respond after March 14.
14. On March 18, when plaintiff still had not complied, the hearing officer ordered plaintiff to respond by March 24 and told him that failure to do so would lead to an order terminating the proceedings.
15. On March 27, when plaintiff still had not responded, the hearing officer, in a 12-page decision, imposed the termination sanction. The decision noted: “The record reflects that the Medical Staff made many requests for this documentary information and many orders were made by the hearing officer directing Dr. Mileikowsky to produce such documents. Dr. Mileikowsky did not comply with these orders to produce documentary information. Dr. Mileikowsky failed to comply with many orders made by the hearing officer in this matter, involving such disparate issues as improper ex parte communications, manner and delivery of notices, motions and briefs and other procedural [and] substantive . . . orders seeking civility and courtesy. Dr. Mileikowsky advised the hearing officer on several occasions that he had a right to ignore the hearing officer’s orders.”
As summarized above, the record before this court shows that plaintiff repeatedly ignored the dates set to produce the documents requested. It was only when plaintiff disobeyed the hearing officer’s order for production of the requested documents that the termination sanction was imposed. Plaintiff’s egregious abuse of the discovery process justified that sanction.5
[1281]The aim of the discovery process is to ferret out the truth and thus promote justice. This goal underlies Business and Professions Code section 809.2, subdivision (d), which governs the discovery rights and obligations of the physician and the peer review body. This is apparent from the provision’s phrase that, in ruling “upon any request for access to information,” the hearing officer “may impose any safeguards the protection of the peer review process and justice requires.” (Ibid., italics added.) To not allow a hearing officer to impose a sanction of terminating a peer review proceeding for a party’s egregious abuse of the discovery process would make a mockery of the Legislature’s statement I just quoted.
I would reverse the judgment of the Court of Appeal.
Baxter, J., concurred.
Respondents’ petition for a rehearing was denied June 17, 2009, and the opinion was modified to read as printed above. Kennard, J., and Baxter, J., were of the opinion that the petition should be granted.
This is the third case in which a termination sanction has been imposed against plaintiff for willful abuse of discovery obligations to produce documents. Just four years ago, in Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262 [26 Cal.Rptr.3d 831], the Court of Appeal upheld a trial court order terminating, as a sanction, plaintiff’s civil lawsuits against Tenet Healthsystem, Encino-Tarzana Regional Medical Center, and numerous individuals. And in Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 531 [27 Cal.Rptr.3d 171], disapproved by the majority here (maj. opn., ante, at p. 1273), the same Court of Appeal panel upheld a hearing officer’s sanction of terminating a hospital peer review proceeding for, among other things, plaintiff’s noncompliance with orders to produce documents relating to Cedars-Sinai Medical Center’s termination of plaintiff’s medical staff privileges—the same information that plaintiff refused to furnish here—and disruptions of the peer review hearing sessions by yelling, disobeying the hearing officer’s rulings, and using abusive language against witnesses, the hearing officer, and others. (Mileikowsky, at pp. 542-552.)
The definition of “peer review body” includes the medical staff of a health care facility. (Bus. & Prof. Code, § 805, subd. (a)(1)(A).) If a physician requests a hearing concerning a hospital’s proposed action to deny staff privileges, a hearing is held before either an arbitrator or a panel that is mutually acceptable to the physician and the “peer review body.”
Business and Professions Code section 809.2, subdivision (d), provides: “The licentiate shall have the right to inspect and copy at the licentiate’s expense any documentary information relevant to the charges which the peer review body has in its possession or under its control, as soon as practicable after the receipt of the licentiate’s request for a hearing. The peer review body shall have the right to inspect and copy at the peer review body’s expense any documentary information relevant to the charges which the licentiate has in his or her possession or control as soon as practicable after receipt of the peer review body’s request. The failure by either party to provide access to this information at least 30 days before the hearing shall constitute good cause for a continuance. The right to inspect and copy by either party does not extend to confidential information referring solely to individually identifiable licentiates, other than the licentiate under review. The arbitrator or presiding officer shall consider and rule upon any request for access to information, and may impose any safeguards the protection of the peer review process and justice requires.”
The majority suggests that whatever evidence defendant hospital still needed after the investigation, it could obtain that information from sources other than plaintiff. (Maj. opn., ante, at pp. 1274-1275.) What the majority overlooks is defendant hospital’s right to discovery from plaintiff. (Bus. & Prof. Code, § 809.2, subd. (d).) In addition, at oral argument, counsel for defendant hospital mentioned that a hospital lacks subpoena power and that Cedars-Sinai Medical Center, which had suspended plaintiff, did not respond to defendant hospital’s request for information pertaining to the suspension.
Business and Professions Code section 809.2, subdivision (d), specifically states that the “peer review body,” that is, the medical staff (see fn. 2, ante), “shall have the right to inspect and copy at the [medical staff’s] expense any documentary information relevant to the charges which the [physician] has in his or her possession or control as soon as practicable after receipt of the [medical staff’s] request.”