Filed 11/27/13

                            CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



MICHAEL MICHALSKI,                                 D062270

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. 37-2012-00093521-
                                                                   CU-WM-CTL)
SCRIPPS MERCY HOSPITAL et al.,

        Defendants and Respondents.


        APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.

        Rosenberg, Shpall & Associates, David Rosenberg and Norman Grissom for

Plaintiff and Appellant.

        Arent Fox, Lowell C. Brown, Sarah G. Benator and Jonathan E. Phillips for

Defendants and Respondents.

        This action arises out of the denial of medical staff membership and surgical

privileges to the plaintiff Michael Michalski, M.D., at three Scripps Health hospitals after

Dr. Michalski was found by the Scripps Judicial Review Committee (JRC), Scripps

Health Board of Trustees (Board), and the Medical Board of California (Medical Board)
to have committed acts of sexual harassment against staff at another hospital, Sharp

Grossmont (Sharp). Dr. Michalski brought a petition for writ of administrative mandate

under Code of Civil Procedure section 1094.5 (all further undesignated statutory

references are to the Code of Civil Procedure) seeking to overturn the denial of his

medical privileges. The court denied the petition.

       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."

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       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



                                               22
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.


                                                                                NARES, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




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