HOLLENHORST, Acting P. J.
Defendants and appellants St. Mary Medical Center (St. Mary), Saint Joseph Health System (St. Joseph), and the Sisters of St. Joseph of Orange (Sisters) (herein these entities are collectively referred to as appellants) appeal from the trial court's order granting the request of plaintiff and respondent Siva Arunasalam, M.D. (Arunasalam) for an injunction to halt the peer review proceeding that he requested to challenge the decision suspending and terminating his hospital privileges.
PROCEDURAL BACKGROUND AND FACTS 2
"St. Mary is a nonprofit acute care hospital located in Apple Valley. It is owned and/or operated by St. Joseph and Sisters. Arunasalam, a cardiologist, is board certified in both internal medicine and in cardiology. He has been a member of the medical staff of St. Mary for 12 years, where he practiced cardiology.
"On March 22, 2005, the St. Mary Medical Executive Committee (the MEC) summarily suspended Arunasalam's privileges `based on a pattern of capricious, hostile, and disruptive conduct . . . that included dishonesty, defiance of MEC directives, disregard for patients' welfare, and substandard medical practice.' Prior to suspending the physician's privileges, the MEC investigated his clinical practices, including an incident that had occurred on March 15, 2005. On that date, Arunasalam, in direct contravention of two prior directives, attempted to intracoronarily inject a drug called `Integrilin' into a patient. While performing an angioplasty, with the patient on the procedure table, Arunasalam left the room, telephoned the St. Mary acting chief of staff, and demanded permission to administer Integrilin intracoronarily. When Arunasalam was denied permission, he `terminated the procedure prematurely.' The patient experienced serious health problems, including hypoxemia, heart failure, and a myocardial infarction. After being denied permission, Arunasalam twice stated to the acting chief of staff, `"I hope the patient dies."' After being presented with evidence from the nurse, radiology technician, and the acting chief of staff regarding this incident and others, the MEC found that Arunasalam's conduct made a summary suspension necessary in order to protect the lives and well-being of patients.
"On June 2, 2005, the MEC determined that Arunasalam's conduct on which summary suspension had been imposed supported termination of his staff membership and privileges. The following conduct was charged: (1) inappropriate and unauthorized use of intracoronary Integrilin; (2) substandard treatment of patients; (3) `Taxus Stent' incident on July 14, 2004; (4) misrepresentation on reappointment applications; (5) failing to test cardiac implantable electronic devices; (6) failed biventricular AICD procedures; (7) no electro physiologic study; (8) disruptive behavior; and (9) failing to adhere to the ethics of the profession.
"The medical staff bylaws (Bylaws) provide that member physicians can challenge adverse actions such as the one involved here by requesting a hearing before a judicial review committee comprised of at least five medical staff members. (Bylaws, Articles 7.3.2 & 7.3.5) A judicial review committee is a panel composed of volunteer physicians who hear all evidence and ultimately issue a determination as to whether corrective actions are reasonable and warranted. Bylaws Article 7.4.3 states that upon the judicial review committee's recommendation, the MEC `shall appoint a hearing officer to preside at the hearing.' Article 7.4.7 provides that the MEC and the member present evidence to the judicial review committee at the hearing. According to Article 7.4.10, the judicial review committee determines whether the adverse action by the MEC was warranted. Article 7.5 sets forth a procedure by which a member may seek review of the judicial review committee's decision. Article 7.5.2 provides that one of the grounds for appeal is `[s]ubstantial noncompliance with the procedures required by these bylaws or applicable law which has created demonstrable prejudice.' Article 7.5.1 states that unless the member appeals the judicial review committee's decision, it is deemed final.
"Arunasalam sought a peer review hearing to challenge the actions of the MEC. The MEC initiated hearing proceedings by selecting five physicians to serve as members of the judicial review committee. The peer review hearing began in November 2005. By October 2006, ten evidentiary hearing sessions had taken place, and the MEC had not yet finished presenting its case. At that time, however, one of the judicial review committee members refused to proceed further and resigned from the committee, leaving only four members. According to Article 7.3.5 of the Bylaws, the judicial review committee `shall be composed of not less than five (5) members of the medical staff.' Thus, one of the remaining members faxed a note to the hearing officer stating his belief that the hearing could not continue because the judicial review committee fell below the five-member minimum required by the Bylaws.
"The parties discussed how to address the situation. The MEC suggested having the hearing officer serve as an arbitrator; however, Arunasalam rejected the suggestion. Unable to reach an agreement between the parties, the MEC determined that the fair thing to do was to appoint a new judicial review committee and a new hearing officer. Eight physicians were appointed to the new judicial review committee, subject to voir dire. Voir dire of five of the physicians was held on July 12, 2007. Arunasalam objected to the new hearing officer and panel. Additional dates for voir dire were discussed, but no dates were ultimately set because Arunasalam had initiated legal proceedings. Prior to initiating [legal proceedings], Arunasalam did not attempt to seek administrative appellate review of any of the decisions of the MEC, including his summary suspension or the decision to release the initial judicial review committee panel and hearing officer and restart the hearing level administrative proceedings. Article 7.1-1 of the Bylaws provides that a member must exhaust the `remedies afforded by these bylaws before resorting to legal action.'
"On March 27, 2007, Arunasalam [filed] . . . his complaint for wrongful denial of medical staff privileges, intentional interference with prospective economic relations, intentional interference with contract, retaliation in violation of public policy, and intentional infliction of emotional distress. Arunasalam alleged that the MEC took adverse actions against him in retaliation because he planned to build a competing medical facility. He challenge[d] his summary suspension under Business and Professions Code section 809 et seq.
"On June 28, 2007, St. Mary filed a special motion to strike pursuant to section 425.16. St. Mary argued that the anti-SLAPP statute protects the MEC's decision to summarily suspend Arunasalam's medical staff privileges as an official proceeding authorized by law and also as conduct in connection with a public issue. St. Mary further asserted Arunasalam could not establish a likelihood of success because the MEC's actions were taken for proper reasons, and Arunasalam failed to exhaust his administrative remedies. Arunasalam opposed the motion.
"On August 13, 2007, the trial court denied the motion, finding that the summary suspension was not an official proceeding authorized by law. The court said, `I cannot see how this falls within the scope of protected activity as set forth in Code of Civil Procedure section 425.16[,] [subdivision] (e)(4). [¶] And this is why I say that: I agree with you that, look, the administrative review process is a proceeding authorized by law and that statements that are made in that context are within the context—are within the scope of this statute. But that is not what the basis of the lawsuit is. It doesn't have anything to do as I read it with the administrative review process. [¶] . . . [¶] . . . They are suing for the suspension of his privileges, not for the peer review process.'" (Arunasalam I, supra, E044186)
Appellants appealed the denial of their anti-SLAPP motion and we reversed and remanded for further proceedings. (Arunasalam I, supra, E044186.) Regarding MEC's decisions to declare a mistrial of the peer review proceeding and to appoint a new judicial review committee and a new hearing officer, on June 12, 2007, Arunasalam moved to enjoin MEC from further peer review proceedings on the grounds that it did not have the power to declare a "mistrial" during the hearing based on the resignation of a peer review panel member. Despite Arunasalam's filing of an injunctive action, MEC continued going forward with a peer review proceeding.
On September 21, 2007, Arunasalam filed a preliminary injunction. Appellants filed their opposition on the grounds that continuance of the peer review proceeding was mandated by law. They argued that Arunasalam had to exhaust his administrative remedies and he would not suffer irreparable harm. Arunasalam replied.
A hearing was held on December 11, 2007. The court indicated its tentative decision was to grant the preliminary injunction. Specifically, it stated: "The main concern the Court has really and the bottom line is that the unreasonable delay and passage of time seems to override and be the exception to the administrative exhaustion requirement. [¶] And so therefore, my tentative ruling with respect to the plaintiff's motion for a preliminary injunction would be that the Court would tentatively grant the motion for preliminary injunction on the ground that [Arunasalam] has presented sufficient evidence to show a probability of prevailing in this action, and the balance of the harms supports an injunction preventing [appellants] from proceeding with [their] second peer review hearing until the determination of the merits on the action."
Following argument by both sides, the trial court took the matter under submission and allowed the parties to submit certain additional declarations. On January 14, 2008, the trial court granted the preliminary injunction, finding that Arunasalam "has presented sufficient evidence to show a probability of prevailing in this action and the balance of the harm supports an injunction preventing [appellants] from proceeding with [their] second peer-review hearing until the determination of the merits on the action." This appeal followed.
STANDARD OF REVIEW
"We review an order granting a preliminary injunction, under an abuse of discretion standard, to determine whether the trial court abused its discretion in evaluating the two interrelated factors pertinent to issuance of a preliminary injunction—(1) the likelihood that the plaintiffs will prevail on the merits at trial, and (2) the interim harm that the plaintiffs are likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued. [Citation.] Abuse of discretion as to either factor warrants reversal. [Citation.]" (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1299 (Alliant).)
"`In determining the validity of the injunction, we look at the evidence presented to the trial court to determine if there was substantial support for the trial court's determination that the plaintiff was entitled to the relief granted.' [Citation.] `Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. "[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts." [ Citation.] Our task is to ensure that the trial court's factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order. [Citations.]' [Citations.]" (Alliant, supra, 159 Cal.App.4th at p. 1300.)
Looking at the record before this court, we conclude that the trial court abused its discretion in granting the preliminary injunction because the evidence fails to support the trial court's findings.
Appellants contend that Arunasalam failed to show a likelihood of success because he failed to exhaust his administrative remedies. We agree.
Under the exhaustion of administrative remedies doctrine, the litigant must establish that he has exhausted all available administrative remedies before seeking relief from the courts. "The doctrine of exhaustion of administrative remedies is a closely related concept to finality. The policy reasons behind the two doctrines are similar. The exhaustion doctrine precludes review of an intermediate or interlocutory action of an administrative agency. [Citation.] A party must proceed through the full administrative process `to a final decision on the merits.' [Citation.] Each step in the administrative proceeding cannot be reviewed separately, any more than each ruling in the trial of a civil action may be separately reviewed by a separate appeal. Administrative proceedings should be completed before the issuance of a judicial writ. The rule is not a matter of discretion; compliance is a jurisdictional prerequisite to judicial review. [Citation.] `"Exhaustion" applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course.' [Citations.] [¶] The principal purposes of exhaustion requirements include avoidance of premature interruption of administrative processes; allowing an agency to develop the necessary factual background of the case, letting the agency apply its expertise and exercise its statutory discretion, administrative efficiency and judicial economy. [Citation.]" (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.)
"The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary)." (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.)
Notwithstanding the above, "exhaustion of administrative remedies is not required where it appears the administrative board is without jurisdiction and thus the remedy is unavailable or where the remedy is inadequate. [Citation.] In addition, exceptions to the exhaustion doctrine also exist where the administrative agency has made it clear it would be futile to pursue the administrative process to conclusion or where irreparable harm will result if judicial intervention is withheld until a final administrative decision is rendered. [Citation.]" (California Water Impact Network v. Newhall County Water Dist., supra, 161 Cal.App.4th at p. 1490.)
Here, the issue is whether Arunasalam was required to wait for a completed peer review prior to seeking judicial intervention. He maintained at the trial level and now on appeal that he was not required to do so because appellants failed to provide such administrative remedies. Specially, Arunasalam argues that "[a]ppellants' bad faith actions in `firing' the hearing panel and attempting to re-start the entire process-more than a year after it had commenced and after ten hearing sessions had been held-essentially denied [him] a hearing." He contends that appellants are solely responsible for the delay in concluding the hearing. The record does not support this claim.
A. Delay in Concluding Peer Review Hearing.
Arunasalam's medical staff membership and privileges were suspended on March 15, 2005. On May 3, he requested a peer review hearing. During the month of May, appellants' counsel, Lowell C. Brown (Brown), attempted to contact Arunasalam's attorney, Henry R. Fenton (Fenton), "to schedule a mutually agreeable hearing date, decide on a hearing officer, and begin the process of voir dire of the [judicial review committee] and the hearing officer." (Italics omitted.) Unable to contact Fenton, Brown sent a letter dated June 1, 2005, emphasizing the need to begin the hearing process. According to Brown, "[s]cheduling hearing sessions is a complicated process. Judicial review committee members almost always serve as volunteers and have an active medical practice during the day, which means they are available only at night, for about three hours per hearing session, to serve on the panel." Because the attendance of these volunteers cannot be compelled, hearing dates must be planned months in advance. On June 2, Fenton spoke to Brown and agreed that the hearing need not commence within the required 60 days. Although he offered no possible hearing dates, Fenton promised to discuss dates in the near future. On June 7, Fenton sent a letter stating that he wanted to schedule the hearing as soon as possible; however, he offered no possible dates. On June 8, Brown sent a letter asking for Fenton's thoughts on two possible hearing officers.
On July 6, 2005, Brown sent another letter asking Fenton to call to discuss two potential hearing officers. Finally, on July 14, Fenton contacted Brown, and a hearing officer was selected. However, Fenton had not agreed to any hearing dates, and Brown spent the following months trying to contact Fenton to schedule the hearing. On September 21, 2005, Brown sent a letter to the hearing officer, Mark Levin, asking him to set up a conference call to begin the hearing process. The conference call was conducted on September 28, and a voir dire session was set for October 25, 2005. On September 28, Fenton stated that he was not available to start the peer review hearing until February 2006. The first hearing session was set for February 7, 2006.
On January 27, 2006, Brown sent Fenton a witness list that identified nine witnesses. On January 31, Fenton sent his witness list of 56 witnesses. The hearing commenced on February 7 and continued to February 8, 2006. On February 8, MEC estimated 30 hours, while Arunasalam estimated 100 hours. Fenton announced that he would not be available for the next sessions scheduled for February 14 and 15. The hearing was continued to April 18, 2006.
On March 30, 2006, Brown sent a letter to Levin informing Levin of his desire to file a letter brief in favor of expediting the hearing. Shortly thereafter, Brown received a letter from the chairman of the judicial review committee, Dr. John Hawes, who expressed frustration at the protracted nature of the hearing. This letter was forwarded to Levin. On April 6, Brown sent another letter to Levin responding to Hawes's concerns. Brown offered to make himself available for longer sessions and/or weekend sessions. A conference call was held among Levin, Brown and Fenton. Fenton stated that he was unavailable on Saturdays for religious reasons. Brown said that he was generally not available on Sundays for religious reasons, but he would make an exception and be available. Levin decided not to pursue weekend sessions. The hearings were held on April 18, June 14, 15 and 21, and July 17, 18, and 19.
In October 2006, one of the judicial review committee members withdrew from the panel. There were only four members left. According to Article 7.3.5 of the Bylaws, the judicial review committee "shall be composed of not less than five (5) members of the medical staff . . . ." Brown sent a letter to Levin suggesting that the hearing officer dismiss the judicial review committee and act as a sole arbitrator in the dispute. Brown explained that such an arrangement is available under Business and Professions Code section 809.2.
On December 7, 2006, the MEC met and concluded that the hearing could not continue with only four members.
On December 15, 2006, Brown sent a letter to Fenton proposing a new hearing officer and schedule of hearings on every Thursday night for 12 weeks. On December 19, Fenton informed Brown that Arunasalam objected to Brown's proposal "in its totality." Subsequently, the MEC appointed eight physicians, subject to voir dire, to serve on a new judicial review committee. However, on March 23, 2007, Arunasalam filed a complaint in the San Bernardino County Superior Court alleging that the MEC had prevented him from having a review hearing. (Arunasalam I, supra, E044186.)
Although the MEC attempted to continue with a review hearing, Arunasalam moved to enjoin MEC from further peer review proceedings on the grounds that it did not have the power to declare a "mistrial" during the initial hearing based on the resignation of a peer review panel member. Despite Arunasalam's filing of an injunctive action, MEC continued going forward with a peer review proceeding until September 21, 2007, when Arunasalam filed a preliminary injunction. A hearing was held on December 11, and the trial court subsequently granted injunctive relief.
Reviewing the above, there is no evidence that appellants are responsible for the delay in the peer review proceedings. Instead, Arunasalam and his counsel, Fenton, are responsible for prolonging the proceedings. Accordingly, to the extent that the trial court based its decision to grant injunctive relief on the grounds that appellants caused the delay, it abused its discretion. There is no evidence in the record that appellants are responsible for the delay.
B. Failure to Exhaust Administrative Remedies.
Likewise, we find no support in the record for Arunasalam's claim that appellants are responsible for failing to provide him with his administrative remedies. Because of the delay in the peer review proceeding, one of the members of the judicial review committee withdrew, causing the committee to be comprised of less than five members of the medical staff. According to Article 7.3.5 of the Bylaws, the judicial review committee "shall be composed of not less than five (5) members of the medical staff . . . ." Contrary to Arunasalam's claim, there is no provision in the Bylaws that allows the judicial review committee to continue a hearing with less than five members. Thus, another member of the judicial review committee sent a message to the hearing officer and others, in which he opined that the hearing could not continue because it no longer complied with the Bylaws. Brown suggested that the hearing officer dismiss the judicial review committee and act as a sole arbitrator in the dispute pursuant to Business and Professions Code section 809.2, subdivision (a), but Fenton refused such suggestion. When a new hearing with a new judicial review committee was attempted, Arunasalam initiated an action in the court system.
As appellants point out, the case of Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, is on point. In that case, eight physicians petitioned for a writ of mandamus requiring the hospital to consolidate its judicial review committee hearings against them. The judicial review committee had denied the physicians' request for consolidation. The trial court granted the petition. (Id. at p. 506.) On appeal, the appellate court reversed the trial court's decision on the grounds that the physicians failed to exhaust their administrative remedies. (Ibid.) The appellate court noted: "The [m]edical [s]taff is a self-governing, autonomous body with a carefully crafted set of bylaws that incorporate traditional due process procedures including a right of appeal. Here, the [m]edical [s]taff bylaws provide that a [judicial review committee] decision is appealable to the Board. The [p]hysicians therefore have a valid administrative remedy that they are required to exhaust . . . ." (Id. at pp. 511-512.) The court concluded that the hospital's medical staff bylaws provided for board review of procedural matters, such as the consolidation issue. (Id. at p. 514.) In this case, if Arunasalam contends that appellants could have proceeded by simply accepting a quorum of members to continue with the hearing, and that the decision not to proceed amounted to a failure to follow the Bylaws or administrative procedures, then he should have appealed such decision to the Board of Trustees.
Arunasalam's reliance on Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, is misplaced. In that case, the plaintiff physician sought damages against two different hospitals, Westlake (who had revoked her privileges) and Los Robles (who had rejected her application for privileges). As to Westlake, the issue presented was "whether an individual who has been expelled or excluded from membership in an association after being afforded a quasi-judicial proceeding may bring an immediate tort action for damages or must first succeed in setting aside the association's decision in a separate mandamus action." (Id. at pp. 482-483, fn. omitted.) The plaintiff doctor requested a hearing after revocation of her staff privileges. Westlake provided a hearing, the judicial review committee upheld the revocation, and the hospital board of directors affirmed the committee's decision. (Id. at pp. 471-472.) The doctor initiated a civil action against the hospital. On further appeal our state's highest court affirmed the dismissal of the doctor's tort claim, holding: "[W]e believe that so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the hospital's action. [Citation.] Accordingly, we conclude that plaintiff must first succeed in overturning the quasi-judicial action before pursuing her tort claim against defendants." (Id. at p. 484.) As to Los Robles, the Supreme Court rejected the hospital's claim that the plaintiff doctor had to challenge Los Robles's denial of her privileges by way of writ of mandate prior to filing any action for damages in court. The court reasoned that no mandate procedure was required because her "exclusion at Los Robles . . . was not undertaken pursuant to a quasi-judicial proceeding; the hospital did not inform plaintiff of the reason for her exclusion nor did it notify her of a right to respond to the charges against her." (Id. at p. 478.) Such was not the case here.
If Arunasalam was unhappy with the decision that the hearing could not continue with only four members, then he should have sought appellate review of the action before appellants' Board of Trustees as provided in Article 7.5.2. Article 7.5.2 provides that Arunasalam may appeal when there has been "[s]ubstantial noncompliance with the procedures required by these bylaws or applicable law which has created demonstrable prejudice." Given Arunasalam's failure to utilize Article 7.5.2, we conclude that appellants were not responsible for Arunasalam's failure to exhaust his administrative remedies.
C. Arunasalam's Judicial Remedy.
Appellants contend that Arunasalam's only proper judicial remedy is to seek a writ of mandamus requiring appellants to complete the peer review proceeding. We agree. If Arunasalam is not provided with a complete administrative hearing, he must seek a writ from the trial court requiring appellants to provide him with such administrative process. (Lee v. Blue Shield of California (2007) 154 Cal.App.4th 1369, 1378 ["A complainant's remedy for the arbitrary or improper refusal by an organization to hold a hearing is an order directing the organization to do so."].) However, the problem here does not appear to be appellants' refusal to complete the peer review proceeding. The problem appears to be Arunasalam's desire to have his complaint heard in a court of law and not by an administrative body. But unless an exception to the administrative exhaustion doctrine applies, the peer review process must be given priority over any competing judicial action. (Ibid.)
D. Likelihood of Prevailing on His Claims.
Regarding Arunasalam's claim of wrongdoing on the part of appellants, the record fails to support such contention. There is no evidence that appellants engaged in any wrongful activity. While Arunasalam blames the MEC for using the resignation of one of the members of the judicial review committee as an excuse to discontinue the hearing, dismiss the judicial review committee, and discharge the hearing officer, the fact remains that the Bylaws require the judicial review committee to be comprised of five members. When one member resigned, there were only four remaining. An alternative of stipulating to let the hearing officer decide the matter was rejected by Arunasalam. Thus, appellants proceeded with beginning a new hearing process. Moreover, the delay in holding the sessions of the initial hearing is attributed to Arunasalam and/or his counsel, not appellants. Given the record before this court, we cannot find support for the trial court's conclusion that Arunasalam "presented sufficient evidence to show a probability of prevailing in this action . . . ."
E. Irreparable Harm.
Finally, appellants contend the trial court erred in finding that, absent injunctive relief, Arunasalam would suffer irreparable harm and thus the balance or hardships tipped in favor of Arunasalam. We agree. As appellants point out, Arunasalam declared: "A second peer review hearing will be a great hardship to me because it will require me to invest a large amount of time, emotional energy, and money. The previous ten hearing sessions already required a considerable expenditure of my financial resources to cover legal [sic] and of my time." However, "`[a] remedy will not be deemed inadequate merely because additional time and effort would be consumed by its being pursued through the ordinary course of the law. [Citation.]' [Citation.] Inconvenience does not equal irreparable injury. [Citation.]" (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 620.) Even if Arunasalam were allowed to pursue an action in the trial court, his claims would not be heard any faster. He would suffer the cost of the same amount of time, emotional energy, and money. Accordingly, we do not find support for the trial court's finding that "the balance of the harm supports an injunction preventing [appellants] from proceeding with [their] second peer-review hearing until the determination of the merits on the action."
F. Multiplicity of Actions.
Arunasalam claims a second peer review hearing would constitute multiple adjudication of his summary suspension given his companion case for damages. That case was previously argued before this court and we found in favor of appellants. (Arunasalam I, supra, E044186.) Given our conclusion that Arunasalam must exhaust his administrative remedies prior to seeking recourse in the trial court, the companion case is premature.
The trial court's order granting Arunasalam's motion for preliminary injunction is reversed. Appellants are to recover their costs on appeal.