December 2, 2011

Summary of November 30, 2011 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, November 30, 2011. The summary includes those civil cases in which (1) review has been granted (not including grant-and-transfers), (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

El-Attar v. Hollywood Presbyterian Medical Center, S196830—Review Granted—November 30, 2011

This is a case in which a physician filed a petition for writ of administrative mandate after his medical staff membership and hospital privileges were terminated. The question presented is: When formal peer review is needed to determine whether a physician is competent to continue practicing in a hospital, may the hospital’s governing board initiate the peer review by selecting the medical staff peer reviewers and a hearing officer if the medical staff does not, where the medical staff’s bylaws specify the medical staff as the selecting body?

The Court of Appeal, Second District, Division Four, held in a partially published opinion, El-Attar v. Hollywood Presbyterian Medical Center (2011) 198 Cal.App.4th 664, that the medical staff’s delegation of the review board selection process to the hospital’s governing board was a violation of the bylaws. It reversed the trial court’s ruling denying the physician’s petition and directed the trial court to order a new hearing. (Full disclosure: Horvitz & Levy LLP is counsel for the defendant hospital in El-Attar and prepared the petition for review.)

Review Denied (with dissenting justices)

Stinnett v. Tam, S197135—Review Denied [Werdegar & Liu, JJ., voting for review]—November 30, 2011

The questions presented were: (1) whether MICRA’s statutory limitation of non-economic damages in medical malpractice actions to $250,000 (Civil Code section 3333.2) is a violation of the right to equal protection under the 14th Amendment of the U.S. Constitution and article 1, section 7, subdivision (a), of the California Constitution; and (2) whether the same statutory limitation is a violation of the right to a jury trial under article 1, section 16, of the California Constitution.

The Court of Appeal, Fifth District, held, in a published opinion, Stinnett v. Tam (2011) 198 Cal.App.4th 1412, that MICRA’s limitation on non-economic damages had previously been held constitutional by the Supreme Court in Fein v. Permanente Medical Group (1985) 38 Cal.3d 137. Additionally, the court held the plaintiff’s right to a jury trial was not violated because a plaintiff has no vested property right in a particular measure of damages, and the legislature has broad authority to modify the scope and nature of such damages.

Justice Betty Dawson filed a concurring and dissenting opinion. She concurred in the majority’s opinion that the court was bound by Supreme Court precedent with respect to the claimed violation of the right to a jury trial under the California Constitution. However, Justice Dawson dissented from the rejection of the plaintiff’s equal protection arguments, explaining “appellant has in effect been denied the opportunity to ‘introduce evidence supporting [her] claim that[, under circumstances existing today, section 3333.2] is irrational. . . .’ (Minnesota v. Cloverleaf Creamery Co. (1981) 449 U.S. 456, 464, 101 S.Ct. 715, 66 L.Ed.2d 659 (Minnesota), citing United States v. Carolene Products Co. (1938) 304 U.S. 144, 153–154, 58 S.Ct. 778, 82 L.Ed. 1234.)”



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