Business Law

Bichai v. DaVita, Inc. (Dec. 20, 2021, F079815) __ Cal.App.5th __ [2021 WL 6000005]

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Medical staff bylaws increasing the statutory burden of proof are unenforceable, entitling physician to a new peer review hearing.

Dr. William Bichai voluntarily resigned from the medical staff at DaVita Inc.’s dialysis facilities pursuant to a settlement agreement after DaVita’s peer review committees and governing boards revoked his privileges. Dr. Bichai sought to regain privileges at DaVita after completing a Physician Assessment Clinical Education (PACE) program, and then requested a peer review hearing after DaVita denied that application. The hearing officer, following hospital bylaws, concluded that DaVita’s decision to deny Dr. Bichai’s application was supported by the record and that Dr. Bichai had not proven that the decision lacked a substantial factual basis. Dr. Bichai filed a petition for writ of administrative mandamus challenging the hearing officer’s decision. The superior court denied Dr. Bichai’s writ petition and he appealed.

The Court of Appeal reversed, holding that the bylaws imposed an impermissibly high burden of proof on a physician contesting a peer review decision. While Business and Professions Code section 809.3, subdivision (b)(2), requires that applicants for medical staff privileges persuade the trier of fact of their qualifications by a preponderance of the evidence, DaVita’s bylaws required Dr. Bichai to prove that the peer review body’s action “lacks any substantial factual basis” or is otherwise arbitrary or capricious. That burden of proof imposed a more demanding standard on Dr. Bichai than the statutory requirement, unfairly preventing the trier of fact from giving greater weight to the PACE program findings. Accordingly, Dr. Bichai was entitled to a new peer review hearing.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or

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