El-Attar Case - Procedural Defects DO NOT VOID a Peer Review Hearing

The 2013 Al-Attar case underscored how procedural defects are not in and of themselves sufficient to void a peer review hearing.  Recent cases have emphasized how the panel must be comprised of medical staff but many errors are forgiven even if they lead to an unfair result.

Errors are Protected

In the realm of medical staff peer review proceedings, the California Supreme Court's decision in El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976 serves as a significant precedent and a warning to physicians.  Many of our clients are excited when they point to errors made by the JRC or investigating agents.  In most cases we have to respond with caution - few errors lead to a dismissal or exoneration.  This is uncomfortable for us because we want our clients to feel protected.  That makes it hard (but necessary) to caution our physicians regarding the limitations of procedural protections under common law fair procedure principles.

The holding was unfavorable to the physician appellant, as the Court determined that a violation of hospital medical staff bylaws in the appointment of the peer review panel did not, by itself, deprive the physician of a fair hearing.

The Central Issue in El-Attar Was the Authority to Appoint the Judicial Review Committee

Under California law and typical hospital bylaws, the Medical Executive Committee (MEC)—representing the medical staff—ordinarily holds the authority to appoint the hearing officer and members of the Judicial Review Committee (JRC) in proceedings challenging adverse actions against staff privileges. The principal question in this case was whether the MEC could delegate that appointment authority to the hospital's Governing Board (the entity that initiated the adverse action) and, if such delegation violated the bylaws, whether it necessarily rendered the hearing unfair.

Remember that the JRC are medical professionals.  The governing boards can be anybody from politicians to wealthy donors.  This is a real difference if you understand the medical issues and have a genuine desire to select a competent hearing officer.

Factual Background

Dr. Osamah A. El-Attar, a board-certified internist and cardiologist, had held medical staff privileges at Hollywood Presbyterian Medical Center since 1975. Commencing around 2000, he voiced criticisms of certain hospital patient care practices. In 2002, he joined other staff members in signing a petition seeking the removal of the hospital's chief executive officer. That same year, in response to federal notifications regarding deficiencies in the hospital's quality assurance program, the Governing Board initiated a review of Dr. El-Attar's patient care, engaging two independent external review groups. These reviewers identified instances of disruptive behavior and care falling below professional standards.

Upon Dr. El-Attar's application for reappointment as his privileges approached expiration, the MEC recommended approval. However, the Governing Board rejected the recommendation, denied reappointment, directed summary suspension of privileges, and overrode the MEC's subsequent refusal to ratify the suspension.

Dr. El-Attar requested a judicial review hearing. The MEC granted the request but resolved to delegate the procedural aspects—including appointment of the hearing officer and JRC members—to the Governing Board. The Board then formulated six charges of misconduct and substandard practice, selected the hearing officer, and appointed the JRC panel from the medical staff.

Following approximately 30 evidentiary sessions, the JRC found three charges substantiated by a preponderance of the evidence. It concluded that the Governing Board's denial of reappointment was "reasonable and warranted," while noting that, as the initial decision-maker, it might have favored an intermediate remedial resolution. The JRC ultimately ratified the denial.

Appellate Proceedings and Holding

Dr. El-Attar sought administrative mandate, contending, inter alia, that the delegation violated the bylaws and deprived him of fair procedure. The trial court upheld the decision. The Court of Appeal reversed, holding that the bylaws prohibited such delegation and that the violation inherently denied a fair hearing, entitling Dr. El-Attar to a new proceeding.

The Supreme Court granted review and unanimously reversed the Court of Appeal on June 6, 2013. Acknowledging that the delegation likely contravened the bylaws, the Court nevertheless held that the violation was not material and did not, standing alone, deprive Dr. El-Attar of a fair hearing. The Court emphasized that fair procedure requires impartial decision-makers but does not mandate automatic reversal for non-prejudicial procedural irregularities. The matter was remanded for consideration of Dr. El-Attar's remaining claims, including allegations of actual bias.

Implications for Peer Review Proceedings

This precedent underscores that physicians challenging adverse peer review actions bear the burden of demonstrating not merely a bylaws violation, but that the irregularity materially affected the fairness of the proceeding—often by proving actual bias or prejudice. Hospital governing bodies retain substantial latitude, provided core elements of due process, such as notice and an opportunity to be heard before a ostensibly neutral panel, are preserved. For practitioners facing peer review, reliance on technical procedural defects alone may prove insufficient to secure judicial relief.

There is Hope for Doctors Under Review

At some point multiple errors or a single serious error can render the proceedings fundamentally unfair.  We often point out that criminal defendants have greater rights than a doctor at a peer review hearing but there are limits to how unfair a process can be.  There can come a day when the JRC internal review process is brought to the attention of a real judge in a real court.  At that stage if a genuine miscarriage of justice can be shown, the courts can and in many cases do, reverse negative findings.   

However, the entire peer review process is painful for a doctor.  At the Horowitz office we try to negotiate reasonable outcomes without litigation.  Our reputation as courtroom fighters is useful because our opponents understand that we have the ability to effectively present our doctor's case at a peer review hearing and if necessary in the courtroom.  Negotiations always come from this strength but we must also acknowledge that even a peer review case that we win exacts a serious emotional and financial toll on our physician clients.

If you are subject to any level of peer review or pre-peer review it is wise to seek immediate legal help.  Remember that the MEC has a lawyer who is the fly on the wall at  the very least and a co-participant in most cases.  

Call Daniel Horowitz for an initial consultation at (925) 283-1863.