Ezekial v. Winkley

Ezekial v. Winkley

Opinion

 [*269]  [**34]  [***420]    CA(1a)(1a) In this case we consider whether ] a surgical resident in a private teaching hospital must be accorded notice of charges  [*270]  and an opportunity to respond, pursuant to the "common law right of fair procedure" ( Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 [116 Cal.Rptr. 245, 526 P.2d 253] ( [****2]  Pinsker II)), prior to dismissal from the residency program. We conclude that "fair procedure" principles are applicable to the facts pleaded herein. We therefore reverse the judgment of dismissal and remand with directions to overrule the demurrer to the first and second causes of action of the third amended complaint.

In part, the third amended complaint alleges the following: Plaintiff is a physician licensed to practice in California. Defendants Kaiser Foundation Health Plan, a nonprofit corporation, and Southern California Permanente Medical Group (Group), a partnership, operate Kaiser Foundation Hospital (Kaiser), a nonprofit corporation, in Los Angeles. Defendant Winkley is Kaiser's chief of surgery and a partner in Group, and defendant Rieder is Kaiser's administrator. In 1972, Winkley sought out plaintiff, who was then engaged in a general medical practice in San Diego, and invited him to join the surgical residency program at Kaiser, orally promising him that he would be employed for the three remaining years necessary to complete his residency. Plaintiff had previously completed his first year of surgical residency in a San Diego hospital. Plaintiff also examined [****3]  Kaiser's brochures which described a surgical residency at Kaiser as a four-year program. In reliance on these representations, plaintiff accepted the offer of residency, closed his San Diego practice, sold his home, and moved with his family to Los Angeles.

According to further allegations of the complaint, plaintiff, in the status of a second-year resident, began work at Kaiser on December 4, 1972, under the terms of a letter agreement which covered his first year at Kaiser. On the first anniversary of his employment, he was orally rehired for one additional year, which terminated December 3, 1974. However, in January 1974, Winkley advised plaintiff that he would not be permitted to remain in the Kaiser surgical residency program after June 30, 1974. No reasons were given to plaintiff, either then or subsequently, for Kaiser's decision to dismiss him. No notice of charges was given, and plaintiff was afforded neither a hearing nor opportunity to respond prior to termination. Dismissal from Kaiser will, as a practical matter and because of Kaiser's close relationship with other teaching hospitals, prevent plaintiff's acceptance in any other surgical residency program. Successful [****4]  completion of an approved surgical residency is a prerequisite to attainment of the status of a "board certified general surgeon,"  [*271]  without which plaintiff cannot practice a surgical specialty in any accredited California hospital.

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