I'm conflicted about this case. But the conflicts are all idiosyncratic, and have very little to do with the merits. On the one hand, I'm not a huge fan of Kaiser. On the other hand, I am a huge fan of Kaiser's attorney, Sam Shepherd, who was a former roommate of mine and someone whom I absolutely love (notwithstanding the distressing fact that I haven't talked to him in years). So I was sad to see Kaiser win, but happy to see Sam win. Similarly, I was simultaneously glad that Justice Robie wrote an opinion that clearly demonstrated that he had given the case a ton of careful thought and evaluation, but bummed that it took him 44 pages to resolve this not-massively-complicated petition. Brevity, after all, has its virtues.
On the merits, I think that Justice Robie -- and hence, by implication, my friend Sam -- gets it right. You've got to exhaust your administrative remedies by going through the hospital peer review process before you file suit, even if that process doesn't start within the 60-day period provided by Section 809.2 of the Business and Professions Code. This isn't an egregious case where the hospital is screwing the doctor and exhaustion would be futile; rather, the delays here were generated by far more mundane reasons, such as the hospital wanting to schedule the hearing for a day that would be convenient to counsel. I'm quite certain there are exceptions to the exhaustion requirement. But this isn't one of them.
Good job, Sam.
