May 17, 2019

St. Mary Medical Center – Long Beach

Rocky Suares, Chairperson
and Members of the Board of Directors
1050 Linden Avenue
Long Beach, California 90813

Re: Medical Staff Self-Governance and Bylaws Amendments

Dear Mr. Soares and Members of the Board of Directors:

I write concerning your medical staff’s proposed amendments to the medical staff’s
bylaws. CMA has been asked to provide its perspective on your decision on such proposed
amendments by ensuring that the decision is best informed by medical staff self-governance
principles and best practices. We hope you will give full consideration to the important
information provided below and would welcome any further opportunity to be of help on this
matter.

A. Background – Medical Staff Self-Governance

The medical staff of St. Mary Medical Center – Long Beach (“St. Mary”) is a member of
the California Medical Association’s (“CMA”) Organized Medical Staff Section (“OMSS”).
Representing approximately 100 medical staffs throughout the State, CMA's OMSS is
singularly dedicated to protecting the professional interests of medical staffs to ensure
quality care in hospitals. Most of the statutes and case law protecting medical staff rights and
self-governance were championed by CMA (comprised of about 45,000 members).

CMA sponsored the legislation in 2004, Senate Bill no. 1325 (“S.B. 1325”), that enacted
Business and Professions Code section 2282.5 to establish and delineate the medical staff’s
right of self-governance over the professional work in a hospital. That statute vests in medical
staffs, among other things, the right to adopt and amend medical staff bylaws, subject to the
final approval of the hospital board, which approval shall not be withheld unreasonably. See
Bus. & Prof. Code §2282.5(a)(6). Indeed, the Joint Commission recognizes that the medical
staff bylaws “create a system of rights, responsibilities, and accountabilities between the
organized medical staff and the governing body, and between the organized medical staff
and its members.” See id. Introductory remarks to Joint Comm. Std. MS.01.01.01.

Because a medical staff’s bylaws are crucial to proper governance and preservation of
self-governance, CMA publishes a complete, annually-updated model medical staff bylaws
that conforms to applicable laws and reflects current CMA policy for best practices for

1201 K Street, Suite 800, Sacramento, CA 95814 T (916) 444-5532 F (916) 444-5689 cmadocs.org
medical staffs. Medical staffs throughout the State conform their bylaws to the CMA model
medical staff bylaws as a sure bet to maintaining good governance practices. All OMSS
members, including the medical staff of St. Mary, receive a copy of the latest CMA model
medical staff bylaws.

The Legislature has declared that “providing quality medical care in hospitals
depends on the mutual accountability, interdependence, and responsibility of the medical
staff and the hospital governing board for the proper performance of their respective
obligations.” S.B. 1325 §1(a) (2004 reg. sess.) (emphasis added). Nowhere is this clarion call for
mutual respect more critical than when a medical staff seeks ratification of proposed medical
staff bylaws by the hospital governing body. In exercising their ultimate authority over
approval of medical staff bylaws, hospital governing bodies must fully understand the
implications of medical staff bylaws provisions that stand before them in order to ensure that
their decisions whether to ratify bylaws are not unreasonable and therefore reversible. By this
letter, CMA hopes to provide important information that can help guide the St. Mary’s board
of directors in evaluating the medical staff bylaws amendments that have been put before
you.

B. Proposed Bylaws Amendments Relating to Exclusive Contracting

We understand the medical staff has proposed over a dozen amendments to its
bylaws and that most of these amendments are noncontroversial. To the extent there is little
or no dispute over a particular amendment, CMA urges prompt action to ratify those
amendments so that the medical staff can benefit from updated bylaws.

The St. Mary medical staff has asked CMA to focus on the amendments that generally
relate to or would apply when there is a change in providers who staff a hospital department
under an exclusive contract. We acknowledge that courts recognize a hospital’s decisions
concerning exclusive contracting to be administrative or business in nature, and therefore
subject to judicial deference. See Mateo–Woodburn v. Fresno Community Hospital & Medical
Center (1990) 221 Cal. App. 3d 1169, 1183. Nevertheless, it is imperative that hospitals involve the
medical staff and give meaningful consideration to physician guidance on these matters.
There are many potential perils when the professional judgment of the medical staff is left
out of major decisions affecting a hospital’s medical services, such as a decision to replace an
existing exclusive service provider contract. Physicians have a wealth of experience and
knowledge about medical care at a hospital. They know firsthand how a major shift in service
can affect the overall quality of care. Physicians understand that medical care in a team
environment is built on trust and relationships built over time, and they can anticipate how
such relationships can be affected when new service arrangements are introduced.

Accordingly, CMA’s model medical staff bylaws provide for a medical staff contracts
review committee:

11.18-2 Duties

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 (a) The medical staff contracts committee shall review and make
recommendations to the board of regarding quality of care issues related to exclusive
arrangements for physician and/or professional services, prior to any decision being
made, in the following situations:

(i) the decision to execute an exclusive contract in a previously open

department or service;

(ii) the decision to renew or modify an exclusive contract in a particular

department or service;

(iii) the decision to terminate an exclusive contract in a particular

department or service.

(b) The medical staff contracts committee shall also review and make
recommendations to the board regarding quality of care issues related to the
selection, performance evaluation, and any change in retention or replacement of
physicians with whom the hospital has a contract. Prior to any decision being made,
the board of shall be required to review and approve the recommendations of the
medical staff contracts committee regarding these contracts, which approval shall
not be unreasonably withheld.

(c) When reviewing contracts within the purview of the medical staff
contracts committee, the committee shall request the hospital to present to it
evidence of the need for a contract by:

(i) identifying in writing the patient care needs to be met by the contract;

(ii) discussing with the affected medical staff department, section or

committee potential alternatives to a contract that may be equally effective in
meeting patient care needs, and if none are acceptable to the administration;

(iii) inviting the chairs of the affected medical staff departments, divisions
or committees to the committee meeting to discuss the need for a contract.

(d) No contract between a physician and hospital shall require the

surrender of the physician's medical staff privileges, status or membership, solely on
the basis of the termination of the contract.

The purpose of such medical staff bylaws provisions is to ensure that administrative decisions
affecting medical care at the hospital take into account the impact on quality of care and
physician practices at the hospital. Leaving the medical staff out of such decisions can be
quite detrimental to a hospital. Furthermore, proper consultation with the medical staff can
lend more legitimacy to an administrative decision that affects care at the hospital. The
medical staff can help to ensure a smooth implementation of any transition in service if
physicians have been kept in the loop. Equally if not more important, meaningful

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consultation with the medical staff fosters, rather than damages, the trust that must exist
between physicians and the hospital administrative body.

To the extent the proposed bylaws amendments of the St. Mary medical staff are
consistent with CMA’s model medical staff bylaws, CMA believes such amendments conform
to best practices. To the extent there are any differences or deviations from the model
medical staff bylaws, CMA urges the St. Mary board to carefully consider whether the St. Mary
medical staff’s specific proposed amendments can serve the unique needs of your hospital
and medical staff to best ensure the highest possible medical care.

We also understand that the St. Mary medical staff has proposed amendments to
how temporary privileges are to be granted. For your edification, the CMA model medical
staff bylaws provide in relevant part:

5.6 TEMPORARY CLINICAL PRIVILEGES

Temporary privileges are allowed under two circumstances only: to address a patient
care need and to permit patient care to be provided while an application is pending.1
Temporary privileges for applicants may be granted for no more than 120 days. . . .
Temporary clinical privileges may be granted to allow a physician to fulfill an
important patient care treatment or service need provided that the procedure
described in Section 5.6-4 has been completed.

The proposed amendments by your medical staff appear to go further in delineating

the circumstances under which temporary clinical privileges may or may not be granted.
While CMA has not evaluated the full implications and propriety of these particular
amendments, we trust that the intentions underlying the proposed amendments are to best
serve medical staff self-governance and improving quality of care at your hospital.
Furthermore, we stress that credentialing and privileging are core functions of medical staff
self-governance that deserve utmost deference to the expertise of the medical staff. As such,
CMA urges the St. Mary board to carefully and thoroughly evaluate how the proposed
amendments concerning temporary privileges can further the goal of providing the best
possible patient care while respecting medical staff self-governance rights.

We appreciate the opportunity to provide input on the medical staff’s proposed

bylaws amendments. CMA is available and would welcome the chance to lend further
assistance to the medical staff and board of St. Mary to ensure that both sides mutually

1
According to the Joint Commission Standard MS.06.01.13, EP 1, temporary privileges
are granted to meet an important patient care treatment and service need. The Rationale
also states that the granting of temporary privileges is acceptable "to fulfill an important
patient care, treatment, and service need," and "when a new application with a complete
application that raises no concern is awaiting review and approval of the medical staff
executive committee and the governing body."

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respect each other’s authorities and responsibilities, as prescribed by the Legislature when it
established medical staff self-governance rights.

Best regards,

David Aizuss, MD
President
California Medical Association

cc: Carolyn Caldwell, St. Mary CEO and President

Dustin Corcoran, CMA CEO
Douglas McFarland, MD, St. Mary Chief of Staff

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