Filed 10/5/20 Tayefeh v. Kern Medical Center CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


 FARZIN TAYEFEH et al.,
                                                                                             F077060
           Plaintiffs and Appellants,
                                                                            (Super. Ct. No. BCV-15-100647)
                    v.

 KERN MEDICAL CENTER et al.,                                                              OPINION
           Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Fenton Law Group, Benjamin J. Fenton, Dennis E. Lee and Randy Hsieh for
Plaintiffs and Appellants.
         Hall, Hieatt & Connely, Mark B. Connely and Stephanie A. Bowen for Defendants
and Respondents.
                                                        -ooOoo-
                                     INTRODUCTION
       Plaintiff and appellant Farzin Tayefeh, M.D. (Tayefeh), along with Farzin
Tayefeh, M.D., Inc. (collectively, plaintiffs), appeal a jury verdict in favor of defendants
and respondents Kern Medical Center (KMC) and the County of Kern (collectively,
defendants) finding KMC did not violate its medical staff bylaws1 in terminating
Tayefeh’s hospital staff privileges at KMC in January 2015.
       On appeal, plaintiffs claim the trial court erred in modifying or refusing to give
plaintiffs’ proposed special jury instructions and erred in excluding plaintiffs’ expert
witness as lacking necessary expert qualifications. We conclude the trial court
prejudicially erred in excluding plaintiffs’ expert witness, and we reverse the judgment
and remand for further proceedings.
                  FACTUAL AND PROCEDURAL BACKGROUND
       For the time period relevant to this appeal, KMC had an exclusive provider
agreement with Resource Anesthesiology Associates and Somnia, Inc. (collectively,
Somnia) to provide qualified anesthesiologists to work at KMC. Evidence submitted at
summary judgment and during trial indicated that anesthesiologists who entered into
independent contractor agreements with Somnia were initially supplied an application for
temporary hospital privileges at KMC. If, after temporary privileges were granted by
KMC, and if Somnia determined the anesthesiologist was suitable to continue working
under the independent contractor agreement, Somnia would request that KMC allow the
anesthesiologist to apply for full staff membership/privileges. No application for full
privileges was offered to the physician until Somnia requested KMC to offer the
application.




1      All further references to bylaws are to the KMC medical staff bylaws unless indicated
otherwise.


                                              2.
       The two applications were largely the same, but the full staff membership
application was lengthier and took up to 180 days to process and approve whereas the
temporary privileges application took only a matter of days or weeks to process and
approve. Only physicians who came to the hospital through an exclusive provider
agreement were offered an application for temporary privileges; all other physicians
generally were required to complete the lengthier application for full staff membership
privileges at the outset.
       Tayefeh applied to work as an anesthesiologist with Somnia at KMC in 2014. He
signed a two-year independent contractor agreement with Somnia wherein Tayefeh
consented that the contract was subject to immediate termination if Tayefeh failed to
obtain clinical privileges from KMC, or his privileges were suspended or revoked by
KMC. Upon agreeing to the contract with Somnia, Tayefeh completed KMC’s
application for temporary/locum tenens privileges, which KMC granted.2 Upon applying
for the temporary privileges, Tayefeh was provided with the bylaws to which Tayefeh,
under the terms of his temporary privileges application, agreed to adhere. The temporary
privilege application also stated that any denial or termination of temporary privileges
was subject to notice and hearing rights as provided in the bylaws.
       Under the bylaws, a physician who has been awarded full staff membership
privileges or who is applying for full staff privileges has different rights than one who has
been awarded only temporary staff privileges. Any physician who applies for full staff
membership privileges is entitled to notice and hearing rights if that application is denied
for any reason. Further, a physician awarded full staff membership may not have his or
her hospital privileges reduced, suspended, or terminated for any reason without notice
and hearing procedures.


2     Locum tenens means a physician who acts as a temporary substitute for another. (Bode v.
Los Angeles Metropolitan Medical Center (2009) 

174 Cal. App. 4th 1224

, 1234, fn. 5.)


                                             3.
       A physician awarded temporary staff privileges, however, is subject to KMC’s
bylaw provision 7.5-4(C), which provides as follows:
               “Temporary privileges may at any time be terminated, with or
       without cause, by the president of staff, the chair of the department, or the
       medical director after conferring with either of the foregoing. The
       practitioner shall be entitled to the hearing and appellate rights
       afforded in Article XIII of these bylaws only if temporary privileges
       are terminated or suspended for medical disciplinary cause or reason.
       In all other cases, the individual shall not be entitled to any hearing and
       appellate rights based upon an adverse action involving temporary
       privileges. All persons requesting or receiving temporary privileges shall
       be bound by the bylaws, rules and regulations of the medical staff. All
       practitioners with temporary privileges will be subject to the proctoring
       procedure of the medical staff.” (Boldface added.)
       One of the obligations of the medical staff in the bylaws, section 6.4-2(K), is “an
ongoing and continuous duty to report to the medical staff office within ten (10) days any
and all information that would otherwise correct, change, modify or add to any
information provided in the application or most recent reappointment application when
such correction, change, modification or addition may reflect adversely on current
qualifications or membership or privileges.”
       Notably, the application for temporary privileges that Tayefeh completed sought
information whether he had ever had his application or license to practice medicine in
any jurisdiction denied, limited, restricted, suspended, revoked, not renewed, or subject to
probationary conditions, or whether he had been fined or received a letter of reprimand
for a licensing agency, or whether he was subject to such a pending action. He answered
“No” to this question.
       Tayefeh commenced work at KMC on January 5, 2015, with temporary privileges
that extended through March 4, 2015. However, on January 21, 2015, the Medical Board
of California (MBC) notified KMC that the MBC had filed an accusation against Tayefeh




                                             4.
on December 31, 2014.3 Although the bylaws required Tayefeh to report that accusation
to KMC within 10 days of its filing, Tayefeh had failed to do so. The MBC accusation
contained allegations that Tayefeh had been prescribing controlled substances such as
Ambien, Zanax, hydrocodone, and testosterone to his spouse without good faith
examinations and without maintaining adequate patient records.
       KMC’s Chief Medical Officer, Glenn Goldis, and the Chief Executive Officer,
Russell Judd, met to discuss the MBC accusation. Goldis indicated they decided to
terminate Tayefeh’s privileges for two reasons: (1) for failing to timely disclose the
accusation to KMC and (2) the serious nature of the accusation’s allegations. Neither
basis was considered by KMC to be a “medical disciplinary cause or reason[]” under
section 7.5-4(C) of the bylaws, therefore no notice and hearing rights were deemed to
attach. Goldis directed the department chair, Dr. Chou Yang, an anesthesiologist also
contracted with Somnia, to inform Tayefeh his temporary staff privileges were terminated
as was Tayefeh’s independent contractor agreement with Somnia. Yang testified he met
with Tayefeh and delivered that information and the two discussed the nature of the
accusation; Tayefeh testified Yang told him nothing about why he was being asked to
leave the hospital.
       Somnia subsequently sent a letter to Tayefeh restating the independent contractor
agreement between them was terminated, which the human resources officer for Somnia
testified was because Tayefeh’s staff privileges at KMC were terminated—without staff
privileges, Tayefeh could not meet his obligations to Somnia to provide services at KMC.




3       The MBC is a consumer protection agency within the Department of Consumer Affairs
consisting of a 15-member Board of eight physicians and seven public members appointed by the
Governor, the Speaker of the Assembly, and the Senate Rules Committee. (Arnett v. Dal Cielo
(1996) 

14 Cal. 4th 4

, 7; Bus. & Prof. Code, §§ 101, subd. (b), 2001, subds. (a)–(c).) The
purposes of the MBC are to protect consumers from incompetent, grossly negligent, unlicensed,
impaired, or unethical practitioners, among other things. (Arnett v. Dal 

Cielo, supra

, at p. 7.)


                                               5.
       Thereafter, Tayefeh filed suit against KMC alleging several claims, including one
under Business and Professions Code section 809 et seq. and a common law claim for
violation of Tayefeh’s right to fair procedure.4 Following demurrer proceedings,
Tayefeh’s only remaining claim was framed as one under section 809 et seq. At
summary judgment, Tayefeh characterized the claim as a violation of section 809.6,
subdivisions (a) and (b), based on KMC’s alleged failure to give Tayefeh sufficient notice
and a hearing under the bylaws.5
       At the hearing on KMC’s summary judgment motion, the trial court explained that
conflicting evidence created a disputed issue of fact as to the meaning of the phrase
“medical disciplinary cause or reason[]” in section 7.5-4(C) of the bylaws. The case
proceeded to trial where expert testimony as to the meaning of medical disciplinary cause
or reason was offered by KMC. Tayefeh’s expert, however, was deemed unqualified and
was precluded from testifying.
       The jury was instructed to interpret the phrase medical disciplinary cause or reason
contained in the bylaws, and based on how they interpreted that phrase, the jury was
directed to determine whether Tayefeh had proven he was entitled to notice and hearing
rights regarding the termination of his temporary privileges. During deliberations, the
jury sent a question to the court whether the law governing the phrase “medical
disciplinary cause or reason[]” included termination of privileges for physician conduct
that occurred away from KMC. (Bylaws, § 7.5-4(C).) The court referred the jury to the
4      All further statutory references are to the Business and Professions Code unless noted
otherwise.
5        Section 809.6, subdivision (a), provides that the parties are bound by any additional
notice and hearing provisions contained in any applicable professional society or medical staff
bylaws that are not inconsistent with sections 809.1 to 809.4. Section 809.6, subdivision (b),
provides that the parties are also bound by any additional notice and hearing provisions
contained in any applicable agreement or contract between the licentiate and peer review body or
health care entity that are not inconsistent with sections 809.1 to 809.4, inclusive. Sections 809.1
to 809.4 detail the minimum fair procedures that must be provided to licentiates with hospital
staff privileges.


                                                 6.
bylaws and instructed them to determine the meaning of the phrase for themselves. The
jury then sent a note to the court indicating they could not reach a decision; the court
instructed them to resume deliberations, and the jury ultimately returned a nine-to-three
verdict in favor of KMC.
       Tayefeh subsequently appealed, arguing that the trial court erred by excluding his
expert witness as unqualified and erred in refusing the special jury instructions Tayefeh
requested. At our request, the parties filed supplemental briefs regarding relevant new
authority and how section 805 may relate to the interpretation of the bylaws.
                                        DISCUSSION
I.     Exclusion of Plaintiffs’ Expert Witness Arthur Chenen
       The bylaws provide that a physician with temporary privileges is entitled to notice
and hearing procedures delineated in the bylaws only if the privileges are revoked for a
“medical disciplinary cause or reason.” (Bylaws, § 7.5-4(C).) The parties disputed the
meaning of that phrase and whether terminating Tayefeh’s staff privileges based on the
allegations contained in the MBC accusation or due to Tayefeh’s failure to report the
accusation to KMC constituted a medical disciplinary cause or reason that triggered
notice and hearing rights under the bylaws.
       At trial, the court framed the issue as one primarily involving the construction of
the terms of a written instrument, subject to the principles of contract interpretation,
although the jury was given instruction on negligence.6 KMC’s expert opined how the
disputed phrase is understood and interpreted in his experience in the industry and that
the termination of Tayefeh’s staff privileges was not based on medical disciplinary
reasons; plaintiffs’ expert was excluded as unqualified. Accordingly, whether that
exclusion amounted to prejudicial error must be examined within the framework of

6      The trial court and counsel discussed whether a violation of section 809.6 was akin to a
negligence cause of action or a breach of contract claim. The jury was instructed on some
relevant principles of contract interpretation and negligence.


                                               7.
contract interpretation principles and how extrinsic evidence, such as expert opinion
about industry standards, customs and practices, is to be considered to interpret the terms
of a written instrument.
       A.     Interpreting the Bylaws in Light of Industry Customs and Standards
              1.     Principles of Interpretation
       Although not necessarily constituting a contract, a hospital’s bylaws are written
instruments the terms of which have been deemed subject, in certain circumstances, to
the rules of contract interpretation. (Smith v. Adventist Health System/West (2010) 

182 Cal. App. 4th 729

, 753–754 [applying contract interpretation canons to deduce the
meaning of hospital bylaws, but emphasizing that doing so may be dependent on the
nature of the provisions at issue].)
       “Where the meaning of the words used in a contract is disputed, the trial court
must provisionally receive any proffered extrinsic evidence which is relevant to show
whether the contract is reasonably susceptible of a particular meaning. (Pacific Gas & E.
Co. v. G.W. Thomas Drayage etc. Co. (1968) 

69 Cal. 2d 33

, 39–40; Pacific Gas &
Electric Co. v. Zuckerman (1987) 

189 Cal. App. 3d 1113

, 1140–1141.) Indeed, it is
reversible error for a trial court to refuse to consider such extrinsic evidence on the basis
of the trial court’s own conclusion that the language of the contract appears to be clear
and unambiguous on its face. Even if a contract appears unambiguous on its face, a latent
ambiguity may be exposed by extrinsic evidence which reveals more than one possible
meaning to which the language of the contract is yet reasonably susceptible.” (Morey v.
Vannucci (1998) 

64 Cal. App. 4th 904

, 912.)
       The interpretation of a contract thus involves a two-step process. The court first
provisionally receives (without actually admitting) all credible evidence concerning the
parties’ intentions to determine whether the language of the agreement is reasonably
susceptible to the interpretation urged by a party. If, after considering the extrinsic
evidence offered, the court determines the language is reasonably susceptible to the

                                              8.
interpretation, the extrinsic evidence is admitted to aid in the second step—interpreting
the contract. (Winet v. Price (1992) 

4 Cal. App. 4th 1159

, 1165–1166; Wolf v. Superior
Court (2004) 

114 Cal. App. 4th 1343

, 1350–1351.)7
       “Extrinsic evidence is thus admissible to interpret the language of a written
instrument, as long as such evidence is not used to give the instrument a meaning to
which it is not reasonably susceptible. Where the interpretation of contractual language
turns on a question of the credibility of conflicting extrinsic evidence, interpretation of
the language is not solely a judicial function. [Citations.] As trier of fact, it is the jury’s
responsibility to resolve any conflict in the extrinsic evidence properly admitted to
interpret the language of the contract.” (Morey v. 

Vannucci, supra

, 64 Cal.App.4th at
pp. 912–913, fn. omitted; see City of Hope National Medical Center v. Genentech, Inc.
(2008) 

43 Cal. 4th 375

, 395 [“Juries are not prohibited from interpreting contracts[]”
where the “construction turns on the credibility of extrinsic evidence”].)
               2.     Extrinsic Evidence of Industry Custom and Standards
       How particular terms are used or interpreted within a particular industry is a type
of extrinsic evidence that may establish an ambiguity in the language of a written
instrument. (See Wolf v. Superior 

Court, supra

, 114 Cal.App.4th at p. 1355.) Indeed,
parties are presumed to contract pursuant to a fixed and established usage and custom of
the trade or industry (Ermolieff v. R.K.O. Radio Pictures (1942) 

19 Cal. 2d 543

, 550), and
contract terms must be interpreted according to any special meaning given to them by
usage, and technical terms are interpreted as generally understood in the industry (Civ.
Code, §§ 1644, 1645).



7       In their supplemental briefs, the parties present arguments about whether and how a
hospital’s statutory reporting requirements under section 805 influence the interpretation of the
bylaws. That issue is relevant to whether the testimony of the experts, along with other extrinsic
evidence, supports an interpretation of the bylaws that is reasonable in view of a hospital’s
reporting duties under section 805 and the underlying public policy concerns.

                                                9.
       The parties disputed how the phrase medical disciplinary cause or reason is
generally understood in the industry and what type of adverse action with respect to a
physician’s staff privileges is of a medical disciplinary nature that would trigger KMC’s
notice and hearing provisions. That phrase has particular significance in the medical
industry because it frames a hospital’s statutory reporting duties to the MBC when
suspending, revoking or terminating staff privileges, and triggers statutory notice
requirements and peer review hearing procedures. (See Economy v. Sutter East Bay
Hospitals (2019) 

31 Cal. App. 5th 1147

(Economy); Alaama v. Presbyterian
Intercommunity Hospital, Inc. (2019) 

40 Cal. App. 5th 55

(Alaama).)
       Among the numerous statutory and regulatory laws designed to address the
interests of patients, physicians, and hospitals, as well as concomitant public policy
concerns, hospitals are statutorily obligated to report to the MBC certain adverse actions
taken by a peer review body with respect to denying, terminating, suspending, or
reducing a physician’s staff privileges. Specifically, section 805 requires that a report be
filed with the applicable licensing agency when, as a result of an action of a peer review
body, “[a] licentiate’s membership, staff privileges, or employment is terminated or
revoked for a medical disciplinary cause or reason[]” or “[r]estrictions are imposed, … on
staff privileges, membership, or employment for a cumulative total of 30 days or more
for any 12-month period, for a medical disciplinary cause or reason.” (§ 805,
subd. (b)(2), (3).) Staff privileges are defined to include, among other things, temporary
privileges. (Id., subd. (a)(4).) The statute defines “‘[m]edical disciplinary cause or
reason’ [to] mean[] that aspect of a licentiate’s competence or professional conduct that is
reasonably likely to be detrimental to patient safety or to the delivery of patient care.”
(Id., subd. (a)(6).)8


8       The bylaws track this definition in article XII, section 12.2-5(K), which sets out actions
to be taken by the medical executive committee in peer review processes: “If the medical
executive committee takes any action that would give rise to a hearing pursuant to Bylaws,

                                                10.
       Along with the duty to report such adverse actions to the MBC, hospitals also have
a duty to provide certain protections to a physician in proceedings regarding his or her
staff privileges. (Anton v. San Antonio Community Hospital (1977) 

19 Cal. 3d 802

, 815
[“[A] physician may neither be refused admission to, nor expelled from, the staff of a
hospital, whether public or private, in the absence of a procedure comporting with the
minimum common law requirements of procedural due process .…”] (Anton), abrogated
by statute on other grounds as recognized in Fahlen v. Sutter Central Valley Hospitals
(2014) 

58 Cal. 4th 655

, 678, fn. 11.)9 In 1986, California implemented a peer review
process to “‘protect the health and welfare of the people of California by excluding
through the peer review mechanism “those healing arts practitioners who provide
substandard care or who engage in professional misconduct[,]” [Citation.]’” and the
Legislature codified the common law fair procedures a hospital must afford practitioners
in the peer-review process. (El-Attar v. Hollywood Presbyterian Medical Center (2013)

56 Cal. 4th 976

, 988 (El-Attar).)
       The specific type of notice and hearing fair process rights that physicians are to be
provided during peer review processes are codified under sections 809.1 to 809.4, but
those sections do not apply to county and state hospitals such as KMC (§ 809.7).
Nonetheless, county and state hospitals are obligated to provide fair procedures and due
process to physicians through notice and an opportunity to be heard in matters affecting
staff membership privileges. (Ibid.)
       In that regard, California law requires an acute care hospital’s medical staff to
adopt written bylaws that establish formal procedures for evaluating “staff applications

Section 13.2, it shall also make a determination whether the action is a ‘medical disciplinary’
action or an ‘administrative disciplinary’ action. A medical disciplinary action is one taken for
cause or reason that involves that aspect of a practitioner’s competence or professional conduct
that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.…”
9       Anton involved full membership staff privileges, not the type of temporary staff
privileges at issue here. 

(Anton, supra

, 19 Cal.3d at pp. 824–825)


                                                11.
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.” (Cal. Code Regs., tit. 22, § 70703, subd. (b).) The medical staff
is required to provide a means of enforcing its bylaws, including adoption of a peer
review process, which is subject to the minimum procedural standards set by the statutes
and by the law entitling physicians to fair procedure. (Smith v. Selma Community
Hospital (2008) 

164 Cal. App. 4th 1478

, 1482.) Hospitals are obligated to materially
comply with the medical staff bylaws 

(El-Attar, supra

, 56 Cal.4th at pp. 990–991; see
§ 809.6, subd. (a)), and hospital governing boards are prohibited from acting in an
arbitrary or capricious manner with respect to peer review matters (§ 809.05, subd. (a)).
       Against that legal backdrop, we consider below the trial court’s exclusion of
plaintiffs’ expert witness who was to offer extrinsic evidence of industry standards and
practices in support of plaintiffs’ interpretation of the phrase medical disciplinary cause
or reason within the bylaws.
       B.     Trial Court’s Basis for Excluding Chenen
       In July 2017, defendants filed a motion in limine to exclude Arthur Chenen as an
expert for plaintiffs. In their motion, defendants argued Chenen was not a physician and
had never been involved in the decision to terminate a physician’s privileges; his
experience was limited to representing physicians and medical staffs as an attorney.
Defendants asserted Chenen’s experience as a lawyer “no more qualifies him as an expert
as it would qualify an attorney who has experience representing law enforcement as an
expert on whether excessive force was used.”
       Chenen was designated by plaintiffs to opine on the nature of Tayefeh’s privileges
at KMC, the appropriateness of the termination of his privileges, and the structure of the
bylaws. During his deposition, Chenen indicated he would testify about whether the
custom and practice in the hospital peer review industry is to consider adverse action



                                             12.
based upon a medical board accusation as a medical disciplinary cause or reason for
corrective action or a restriction on privilege.
       Chenen testified he had never personally made a decision to terminate a
physician’s staff privileges, but he had been involved in the decision whether or not to
report such an adverse event to the MBC: “I make that decision frequently when
advising medical staffs and hospitals whether a report has to be made. So[,] I do make
that decision, although I don’t actually make the report, of course.” Chenen stated the
basis for his opinion was predicated on his “years of experience in the field in terms of
handling these kinds of matters [him]self, both as a physician’s attorney, as a medical
staff attorney, in other words, advising medical staffs, and also advising hospital boards
in peer review matters. It’s based upon the continuing legal education seminars that I go
to and listen to. It’s based upon the years of experience that I had in teaching
medical .…” Although this portion of Chenen’s deposition was cut off in the record on
appeal, Chenen’s curriculum vitae attached to defendants’ motion in limine indicates
Chenen served as a faculty member at the American College of Hospital Administrators,
now the American College of Healthcare Executives, from 1978 through 1985 teaching
classes/seminars entitled, among others, “‘Medical Staff Relations,’” “‘Medical Staff
Credentialing,’” and “Executive Briefing Series—‘Medical Staff Discipline: From
Problem to Solution.’”
       At the motion in limine hearing, plaintiffs’ counsel asserted Chenen was prepared
to testify regarding the statutory scheme relevant to peer review and hospital reporting
requirements, what a locum tenens privilege practice is, the credentialing process, and the
distinction between a locum tenens physician and a fully credentialed physician. It was
also anticipated he would testify about the nature of an MBC investigation and an MBC
accusation against a physician.
       Defendants’ counsel argued there was no foundation for Chenen to testify as an
expert on any topic because Chenen’s sole qualification was limited to his role as an

                                              13.
attorney for medical staffs and hospitals. Plaintiffs’ counsel maintained the fact that
Chenen was not a physician was irrelevant because he was not offering an opinion on any
medical standard of care, he was offering an opinion about whether revocation of a
physician’s staff privileges for certain conduct, in terms of industry custom and practice
in hospital administration, was considered a medical disciplinary cause or reason.
       The court rejected plaintiffs’ counsel’s argument: “[A] medical doctor who has
been engaged in certain practices can testify about practices in the industry[,]” but an
attorney, “just because he’s represented people in those fields, does not acquire expertise
or foundation.” The court noted doctors who have been involved in administrative
decisions “probably have the foundation to give opinions” about hospital administration
issues, but the fact that someone is a lawyer and has represented people who might be
experts in the area does not make the lawyer an expert in the area. The court analogized
that “just because an attorney has represented a heart surgeon on many, many occasions
does not give him the expertise or foundation to opine about practices in that field.” The
court concluded it would grant defendants’ motion to exclude Chenen’s testimony subject
to reconsideration during trial, noting that “just because he’s represented a bunch of
people who probably do have the foundation doesn’t give him the foundation; and, …
I’m concerned about him straying into the area of instructing the jury on the law.”
       During trial, Dr. Allan Pont opined about what reasons for revocation of staff
privileges constitute a “medical disciplinary cause or reason[]” (bylaws, § 7.5-4(C))
based on his experience in the industry, and he opined the phrase was understood to be
synonymous with a hospital’s statutory reporting duties under section 805. Plaintiffs
thereafter sought reconsideration of the court’s exclusion of Chenen as an expert witness.
Plaintiffs argued Chenen should be permitted to testify that “medical disciplinary cause
or reason[,]” as used in section 7.5-4(C) of the bylaws, is a term of art that conforms to
and derives from California law. Moreover, counsel asserted Chenen should be permitted
to testify what type of physician conduct would result in termination of staff privileges

                                            14.
for a “medical disciplinary cause or reason.” Counsel noted Pont’s testimony related to
his experience as an administrator, not as a physician, and Chenen had extensive
experience in hospital administrative decisions.
       The trial court maintained it was problematic to have an expert testify about what
California statutes provide and noted again that an attorney has no foundation to testify
about what is meant by these particular hospital bylaws. The court noted Pont did not
give any opinion as to what the language in this particular set of bylaws meant, he
testified only in a general sense about his understanding of that term. The court denied
the motion for reconsideration “for the same reasons [the court] originally gave[.]”
       C.     Analysis
              1.     Trial Court Erred in Excluding Chenen as Unqualified
       Evidence Code section 720, subdivision (a), provides that: “A person is qualified
to testify as an expert if he has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his testimony relates.
Against the objection of a party, such special knowledge, skill, experience, training, or
education must be shown before the witness may testify as an expert.
       “A trial court’s decision that a proposed witness qualifies as an expert under
Evidence Code section 720 is a matter within the court’s broad discretion and will not be
disturbed on appeal unless the [party asserting the error] demonstrates a manifest abuse
of that discretion.” (People v. Jones (2013) 

57 Cal. 4th 899

, 949.) However, if a witness
is clearly shown to be competent and demonstrates sufficient knowledge of the subject, it
is error for the trial court to refuse to admit the witness’s testimony. (Brown v. Colm
(1974) 

11 Cal. 3d 639

, 647.)
       Plaintiffs argue Chenen was qualified to testify as an expert on several issues:
(1) the credentialing process for physicians; (2) the different types of medical staff
privileges; (3) the process due for termination of staff privileges; and (4) how the term



                                             15.
“medical disciplinary cause or reason” is used within the industry in medical staff
bylaws—i.e., the custom or usage of that term/phrase in the hospital peer review industry.
       Chenen was clearly qualified to opine about industry standards and practices in
regard to these topics. The trial court’s concern that Chenen had no experience as a
physician or a hospital administrator was misplaced. “[W]ork in a particular field is not
an absolute prerequisite to qualification as an expert in that field.” (Osborn v. Irwin
Memorial Blood Bank (1992) 

5 Cal. App. 4th 234

, 274.) For example, “[q]ualifications
other than a license to practice medicine may serve to qualify a witness to give a medical
opinion.” (People v. Catlin (2001) 

26 Cal. 4th 81

, 131–132.) The matters in which
Chenen claimed to have expertise were not clinical or medical issues for which only
medical personnel would have the requisite training and experience, nor were the issues
related to experiences or skills that could be garnered only through work as a hospital
administrator. (See People v. King (1968) 

266 Cal. App. 2d 437

, 445 [“The competency
of an expert is relative to the topic and fields of knowledge about which the person is
asked to make a statement … the field of expertise must be carefully distinguished and
limited.”].)
       The trial court was also concerned that Chenen’s qualification derived solely from
his experience practicing law in the healthcare industry, which would not necessarily
translate into specialized knowledge, skill, or experience with medical staff bylaws, staff
privileges, or physician discipline. For example, the trial court reasoned “a medical
doctor who has been engaged in certain practices can testify about practices in the
industry[,]” but an attorney, “just because he’s represented people in those fields, does
not acquire expertise or foundation.” Yet, the record establishes Chenen’s qualifications
were more specific than general litigation experience inside this particular industry.
Chenen testified at deposition that he had years of experience advising hospital boards,
medical staffs, and physicians specifically about peer review matters, and he had been



                                            16.
frequently involved in determining whether suspension or revocation of staff privileges
for particular physician conduct required reporting to the MBC.
       Chenen’s qualifications are notably different from the lawyer in California
Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 

175 Cal. App. 3d 1

(California Shoppers),
who was deemed unqualified as an expert on insurance practices because his expertise
derived solely from his experience litigating bad-faith cases against insurance companies.
(Id. at pp. 66–67.) The decision in California Shoppers was an implicit recognition that
litigation experience within a specific industry is simply too broad and unspecific to
establish anything about what particular knowledge or experience was actually gleaned in
any given case, what types of issues arose in particular cases, or how discrete litigation
issues would result in knowledge of customs and standards throughout the field on any
particular issue.
       Unlike the attorney in California Shoppers, Chenan’s expertise was not predicated
solely on litigating cases against hospitals pertaining to general and unspecific hospital
administration issues. Rather, Chenen’s experience was specific to peer review matters;
he had worked as a physician’s attorney and as a medical staff attorney advising medical
staffs and hospital boards on peer review issues that would have directly involved
reviewing, interpreting, and advising on medical staff bylaws. He testified he frequently
advised on whether physician conduct was reportable to the MBC, which would have
necessarily involved detailed consideration of the industry’s interpretation of the phrase
“medical disciplinary cause or reason” as that is the standard for revocation of staff
privileges which triggers reporting duties to the MBC. (§ 805, subd. (b)(1)–(3) [§ 805
report shall be filed if peer review body, for a “medical disciplinary cause or reason[,]”
(1) denies or rejects application for staff privileges, (2) terminates or revokes existing
staff privileges, or (3) restricts staff privileges for more than 30 days in any 12-month
period].)



                                             17.
       Beyond his litigation and advisory experience, which specifically related to peer
review matters (not just hospital administration generally), Chenen also served as faculty
for the American College of Hospital Administrators (now named the American College
of Healthcare Executives) teaching classes/seminars directly related to medical staff
credentialing. Chenen has also published numerous articles in The Medical Staff
Counselor and the Los Angeles County Medical Association (LACMA) physician
journals regarding hospital peer review, restriction of staff privileges and due process,
and physician discipline. This is very different from qualification as an expert based
solely on general experience in litigation against hospitals, where it would be unclear
what particular issues had arisen and how those experiences translated into broad
knowledge about customs or standards inside the industry.
       While the trial court’s discretion to determine expert qualification is necessarily
broad and error is found only for abuse of discretion, the court will be nonetheless
“deemed to have abused its discretion if the witness has disclosed sufficient knowledge
of the subject to entitle his opinion to go before the jury.” (Brown v. 

Colm, supra

, 11
Cal.3d at p. 647.) On this record, Chenen was qualified to offer an expert opinion about
industry customs and standards with regard to (1) the credentialing process for
physicians; (2) the different types of medical staff privileges; (3) the industry standards of
the process due for termination of staff privileges; and (4) how the term “medical
disciplinary cause or reason” is generally interpreted in medical staff bylaws—i.e., the
custom or usage of that term/phrase in the hospital peer review setting. Chenen is
qualified, based on his experience and knowledge of the peer review industry’s customs
and practices, to offer an opinion about the common usage and interpretation of phrases
and terms within hospital bylaws and how those terms are understood in the industry. He
is also qualified to offer an opinion regarding whether, in his experience and knowledge
of the industry, terminations of privileges based on an MBC accusation like that against



                                             18.
Tayefeh are typically considered to be adverse action based on a medical disciplinary
cause or reason. The trial court’s exclusion of expert Chenen as unqualified was error.
              2.     Error Was Not Harmless
       The standard for determining whether the erroneous refusal to admit evidence
constitutes grounds for reversal is well settled. A case will be reversed for trial error only
when the error results in a “miscarriage of justice.” (Clifton v. Ulis (1976) 

17 Cal. 3d 99

,
105.) Our high court has held such a miscarriage of justice occurs when, after an
examination of the entire record the appellate court “‘is of the “opinion” that it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’” (Ibid., quoting People v. Watson (1956) 

46 Cal. 2d 818

, 836.) A “‘reasonable probability’” does not mean more likely than not, but “merely
a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v.
Superior Court (1994) 

8 Cal. 4th 704

, 715.) Worded differently, a “‘reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” (People
v. Bolin (1998) 

18 Cal. 4th 297

, 333.)
       The parties’ central dispute was whether KMC terminated Tayefeh’s staff
privileges because of a medical disciplinary cause or reason. If either of the reasons
given for terminating Tayefeh’s staff privileges related to a medical disciplinary cause, it
would trigger statutory reporting duties under section 805 as well as the notice and
hearing procedures in the bylaws. (See 

Alaama, supra

, 40 Cal.App.5th at p. 66.) KMC’s
witnesses’ testimony indicated that phrase was understood to encompass physician
conduct that occurred only at KMC involving KMC patients. Pont opined the phrase
only related to adverse action for medical malfeasance such as the failure to take care of a
patient or conduct that endangers patient care. He opined the termination of Tayefeh’s
privileges did not constitute a medical disciplinary action because it had nothing to do
with the care or treatment of KMC patients. Pont also testified termination of staff
privileges was only based on a medical disciplinary cause if it was reportable to the MBC

                                             19.
pursuant to the hospital’s statutory reporting duties—this was not reportable because the
MBC already knew about its own accusation. Yang testified terminating privileges based
on the allegations in the MBC accusation was not a medical disciplinary cause or reason
because Tayefeh’s practice with KMC had been “just fine.” Goldis also testified he had
received no negative quality of care issues pertaining to Tayefeh’s work at KMC, and it
was his understanding the termination of Tayefeh’s privileges was not a medical
disciplinary cause or reason because “[t]here were no active medical disciplinary issues at
[KMC] regarding this physician.”
       Consistent with Pont’s opinion that medical disciplinary reasons for terminating
staff privileges were understood to be synonymous with a hospital’s statutory reporting
duties, plaintiffs’ interpretation of what constituted medical disciplinary cause or reason
was tethered to the statutory definition of that phrase as “that aspect of a licentiate’s
competence or professional conduct that is reasonably likely to be detrimental to patient
safety or to the delivery of patient care.” (§ 805, subd. (a)(6).) Plaintiffs maintained
termination for a failure to report the MBC accusation was an implicit indictment of
Tayefeh’s honesty, which necessarily implicated his professional competence, and the
substance of the MBC accusation directly implicated Tayefeh’s patient care and delivery
abilities because it dealt with his patient examination and treatment practices.
       There was some evidence to support plaintiffs’ interpretation, including that Yang
admitted the allegations in the accusation gave him some doubt as to Tayefeh’s
competency as a doctor and gave him reason to doubt Tayefeh’s medical judgment; and
Goldis testified the accusation was of a serious nature and emphasized Tayefeh had been
prescribing controlled substances to his spouse that had an addictive quality and could be
dangerous to a patient. Goldis also noted the MBC accusation potentially implicated
Tayefeh’s license to practice medicine. However, because of Chenen’s exclusion,
plaintiffs had no opportunity to counter Pont’s assertions about how the phrase medical
disciplinary cause or reasons was understood in the industry and whether that would have

                                              20.
included an MBC accusation like the one against Tayefeh for conduct unrelated to KMC
or its patients.
       The jury struggled with whether medical disciplinary cause or reason related to a
physician’s conduct that was detrimental to patient safety or patient care generally, or had
to be conduct detrimental to patient care and safety specifically at KMC. The jury sent a
written question to the court during deliberations inquiring whether the law regarding
medical disciplinary cause or reason governed actions exclusively originating at KMC.
The court consulted with counsel and provided an answer that included referring the jury
to portions of the bylaws, including section 12.2-5(K), which defined medical
disciplinary action as “one taken for cause or reason that involves that aspect of a
practitioner’s competence or professional conduct that is reasonably likely to be
detrimental to patient safety or to the delivery of patient care.” The jury continued to
struggle, and they indicated to the court they could not reach a verdict. The court
instructed the jury to continue deliberating, and the jury ultimately returned a nine-to-
three verdict in favor of KMC. They found plaintiffs had not proven by a preponderance
of evidence that KMC was required to give Tayefeh notice and hearing rights with
respect to the termination of his privileges to treat patients at KMC.
       The jury’s question and their struggle to reach a verdict indicated the closeness of
the question whether the termination of Tayefeh’s privileges, which according to Goldis
and Yang was predicated in part by the substance of the allegations in the MBC
accusation, constituted medical disciplinary cause or reason. At his deposition, Chenen
indicated he would testify about whether it is the custom and practice in the peer review
industry to construe adverse action based upon a medical board accusation as a medical
disciplinary cause or reason. This testimony was highly relevant to the question with
which the jury struggled, and it was the core issue in the case. Chenen’s expert testimony
was the only vehicle for plaintiffs to admit extrinsic evidence of standards and customs in
the industry. Further, counsel for KMC emphasized in closing that plaintiffs had

                                             21.
proffered no evidence that termination of privileges based on the conduct alleged in the
accusation qualified as a medical disciplinary cause or reason, and further noted Pont
testified without contradiction that it did not constitute a medical disciplinary cause or
reason. KMC’s counsel closed by arguing, “Plaintiff[s’] burden is to prove this was
medical disciplinary cause or reason; yet no evidence, no witnesses, no testimony. No
one said that.”
       In its supplemental brief, KMC contends that even if Tayefeh was entitled to
hearing procedures under the bylaws and he prevailed at that hearing in preserving his
staff privileges, the exclusive provider agreement between KMC and Somnia stated that
any physicians who had an investigation pending against them were precluded from
employment with KMC. Although not framed as a harmless error argument, KMC’s
assertion in this regard is essentially that no error in the trial proceedings could be
prejudicial in light of this agreement.
       However, as discussed by the court in 

Economy, supra

, 31 Cal.App.5th at
page 1158, a hospital cannot direct a third party employer to take actions against a
physician’s employment (that effectively prevents the physician from exercising clinical
privileges at the hospital) if the hospital itself could not take those actions without
violating due process hearing procedures or statutory reporting duties under section 805.
KMC cannot direct Somnia to take action against Tayefeh’s employment for reasons
amounting to a medical disciplinary cause or reason without affording process or
reporting that termination to the MBC; if that were allowable, hospitals would be able to
avoid their statutory obligations to provide the due process provided in their medical staff
bylaws and could avoid reporting physicians to the state licensing board when required.
(Ibid. [hospital cannot rely on third party contract as a way to terminate services of
physicians for a medical disciplinary reason].)
       Defendants also argue that even if Chenen was not properly excluded as
unqualified, his proposed testimony about the “statutory scheme,” the differences

                                              22.
between different types of staff credentials, the credentialing process for full medical
staff privileges, and the MBC investigation was rightly excluded as improper and
irrelevant. Specifically, because the notice and hearing procedures mandated in
sections 809.1 to 809.4 do not apply to county hospitals such as KMC (§ 809.7), any
testimony about those statutory requirements is irrelevant. As to the remaining
applicable sections, defendants argue the trial court pointed out it was inappropriate for a
witness to offer any interpretation of those statutes.
       The difficulty in determining the proper role of expert testimony at trial may be an
especially acute issue when the expert is a lawyer. (Summers v. A.L. Gilbert Co. (1999)

69 Cal. App. 4th 1155

, 1178 (Summers).) “While an expert witness may properly testify
as to custom and practice … [citation], he may not state interpretations of the law,
whether it be of a statute, ordinance or … regulation promulgated pursuant to a statute
[citations].” (Elder v. Pacific Tel. & Tel. Co. (1977) 

66 Cal. App. 3d 650

, 664.) Expert
opinion on the legal interpretation of contracts has also been found inadmissible.
(Cooper Companies v. Transcontinental Ins. Co. (1995) 

31 Cal. App. 4th 1094

, 1100
[“[T]he meaning of the [insurance] policy is a question of law about which expert opinion
testimony is inappropriate.”].)
       Notwithstanding the general prohibition on expert opinion as to a question of law,
in the absence of an Evidence Code section 402, hearing it is virtually impossible to
determine what portions of Chenen’s proposed testimony may have been properly
excluded as stating legal conclusions or would risk usurping the function of the jury.
Chenen was not entitled to offer an opinion about the legal interpretation of the terms of
the bylaws, but he was entitled to offer his opinion about how those terms are used and
interpreted within the industry. 

(Summers, supra

, 69 Cal.App.4th at p. 1180; Wolf v.
Superior 

Court, supra

, 114 Cal.App.4th pp. 1354–1355 [expert testimony from attorney
regarding custom and practice in the motion picture entertainment industry relevant to
interpretation of written agreement].) The general topics of Chenen’s proposed testimony

                                             23.
are not facially irrelevant, particularly his opinion about industry customs and practices,
and it cannot be concluded Chenen’s exclusion was harmless on the ground that some
unspecified portions of his testimony may have been deemed irrelevant and/or would
have constituted improper legal opinion.
                3.     Conclusion
         In sum, Chenen’s excluded testimony was highly relevant to the central issue in
the case, and he was plaintiffs’ sole witness as to industry custom and practice evidence
for purposes of interpreting the bylaws. Determining whether termination of Tayefeh’s
privileges was based on a medical disciplinary cause or reason was a question the jury
struggled to determine, as evidenced by their question to the court, their difficulty
reaching a decision, and the lack of total agreement on the verdict ultimately rendered.
(People v. McDonald (1984) 

37 Cal. 3d 351

, 376 [“An error that impairs the jury’s
determination of an issue that is both critical and closely balanced will rarely be
harmless.”], overruled on other grounds in People v. Mendoza (2000) 

23 Cal. 4th 896

,
912–925; see People v. Fields (2009) 

175 Cal. App. 4th 1001

, 1023 [speed and lack of
difficulty reaching decision by jury were factors considered in determining whether more
favorable result would have been reached].) Chenen’s proposed testimony would have
directly related to the issue the jury struggled to decide, and there is a reasonable
likelihood his opinions and testimony would have affected the outcome in plaintiffs’
favor.
         Given these factors, we conclude that, had Chenen’s testimony not been excluded,
there is a reasonable probability the jury would have rendered a verdict more favorable to
plaintiffs. (People v. 

Bolin, supra

, 18 Cal.4th at p. 333.) As the error is prejudicial,
reversal of the judgment is warranted.
II.      Additional Claims of Instructional Error
         Plaintiffs also claim the trial court erred in refusing to give the special jury
instructions plaintiffs requested. As we reverse the judgment and remand for further

                                                24.
proceedings consistent with this opinion, we do not reach plaintiffs’ independent and
additional arguments about instructional errors.
                                     DISPOSITION
       The judgment is reversed. The trial court’s order excluding Chenen is vacated,
and the matter is remanded for further proceedings consistent with this opinion. Plaintiffs
are awarded the costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1).)




                                                                             MEEHAN, J.
WE CONCUR:



LEVY, Acting P.J.



FRANSON, J.




                                            25.