Dr. Robert Powell obtained provisional membership in the medical staff of Bear Valley Community Hospital about a decade after having his staff membership and clinical privileges terminated by a Texas hospital based on findings of dishonesty and obstructive behavior. Dr. Powell later applied for active membership on the medical staff. Bear Valley’s Board of Directors determined his application was incomplete because he had not fully explained his loss of privileges in Texas. The Board notified Dr. Powell that his provisional membership had expired, but encouraged him to reapply. Dr. Powell reapplied, submitting additional (albeit misleading) information regarding his loss of privileges in Texas. After the Board made an initial decision to deny Dr. Powell’s renewed application, he requested a judicial review committee (JRC) hearing regarding that decision. The JRC found that the Board’s decision was reasonable, warranted, and supported by substantial evidence that Dr. Powell displayed fundamental character defects for dishonesty and deceitfulness based on (1) his repeated failure to produce a letter from the Texas Board of Medical Examiners regarding his earlier loss of privileges, (2) his attempt to deceive Bear Valley by producing a different letter by the Texas Medical Board, and (3) his misrepresentations regarding the circumstances that led to his loss of privileges in Texas. The Board affirmed the JRC’s findings as its final decision after Dr. Powell waived his right to an administrative appeal. Dr. Powell filed an unsuccessful petition for writ of administrative mandamus in the superior court, and then an appeal.

The Court of Appeal affirmed.  First, the court explained that a lapse in provisional privileges while a physician submits a more complete application is not a reportable event under Business and Professions Code section 805 and does not trigger the right to a JRC hearing. Thus, the court held that Dr. Powell was not entitled to a hearing relating to his initial provisional staff privileges. As to the Board’s denial of the renewed provisional membership, the court held that the Board properly exercised independent judgment and did not exceed its delegated authority to protect patients by denying Dr. Powell’s reapplication. Dr. Powell’s misrepresentations and repeated failure to produce relevant evidence showed a propensity for dishonest and unethical conduct that could negatively impact his and other physicians’ provision of medical care. Furthermore, the Court of Appeal held that the Board gave due weight to the hospital’s medical executive committee (MEC) on matters within its expertise and about which the MEC was fully informed (i.e., the MEC’s review of Dr. Powell’s proctored cases). The court recognized that the MEC had been largely misled by Dr. Powell when it recommended approval of his reapplication.

This bulletin was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.