FILED BY CLERK
SEP 27 2005
IN THE COURT OF APPEALS
COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
ABDULKADIR HOURANI, M.D., ) 2 CA-CV 2004-0155
) DEPARTMENT A
Plaintiff/Appellee, )
) OPINION
v. )
)
BENSON HOSPITAL, an Arizona )
nonprofit corporation, )
)
Defendant/Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CV200200261
Honorable Wallace R. Hoggatt, Judge
AFFIRMED IN PART;
VACATED IN PART AND REMANDED
Chandler & Udall, LLP
By Peter Akmajian and Michael J. Crawford Tucson
Attorneys for Plaintiff/Appellee
Slutes, Sakrison & Hill, P.C.
By Tom Slutes and Diana L. Kanon-Ustariz Tucson
Attorneys for Defendant/Appellant
H O W A R D, Presiding Judge.
¶1 Appellant Benson Hospital challenges the superior court’s grant of summary
judgment in favor of appellee Abdulkadir Hourani in his appeal of the Hospital’s suspension
of his hospital privileges. The Hospital also argues that the court erred by denying its cross-
motion for summary judgment. We affirm the court’s denial of the Hospital’s motion, but
reverse the granting of Hourani’s motion, finding that factual issues precluded summary
judgment.
¶2 The procedural facts relevant to this appeal are undisputed. Abdulkadir
Hourani is a board-certified, pulmonary critical-care specialist licensed to practice medicine
in Arizona. From 2000 to 2002, he was employed by EmCare, Inc., which contracted with
Benson Hospital to provide it emergency room physicians. In December 2000, the
Hospital’s Medical Staff Executive Committee began investigating the quality of Hourani’s
care at the Hospital and subsequently voted to recommend to the Governing Board that it
revoke Hourani’s privileges to practice medicine at the Hospital. The Executive Committee
informed Hourani of its decision, and Hourani requested a hearing. After the hearing, the
hearing officer issued a report, stating that, of the eight cases discussed in his report,
“variances” had occurred in three of the cases in which “the care varie[d] from the norm that
has been established in Emergency Medicine.” However, the hearing officer made no official
recommendation to revoke Hourani’s hospital privileges, stating at the hearing that “it is up
to the Medical Staff to decide whether privileges are revoked or not revoked.” After
considering the hearing officer’s report, the Executive Committee remained in favor of
recommending to the Governing Board that it revoke Hourani’s privileges.
¶3 Hourani appealed the Executive Committee’s recommendation to the
Appellate Review Committee. After a hearing, the Appellate Review Committee adopted
2
the Executive Committee’s recommendation for revocation. The Governing Board
subsequently accepted this recommendation and revoked Hourani’s privileges to practice
medicine at Benson Hospital. Hourani sought injunctive relief from the superior court,
arguing that the Hospital’s proceedings had denied him due process. Hourani moved for
summary judgment, and the Hospital cross-moved for summary judgment. The superior
court denied the Hospital’s motion but granted Hourani’s motion and ordered that his
privileges be reinstated.
DENIAL OF SUMMARY JUDGMENT
¶4 Benson Hospital first argues that the superior court erred as a matter of law in
denying its cross-motion for summary judgment, in which it had argued A.R.S. § 36-
445.02(B) required the court to affirm a revocation of privileges that is based on substantial
evidence. Although the denial of summary judgment is usually not an appealable order,
Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 7, 965 P.2d 47, 50 (App. 1998), an
appellate court may review a denial if it was based on a point of law. Strojnik v. Gen. Ins.
Co. of Am., 201 Ariz. 430, ¶ 11, 36 P.3d 1200, 1203 (App. 2001). Here, the court denied
the Hospital’s motion based on its interpretation of § 36-445.02(B). Furthermore, if we
were to agree with the Hospital that we were required to uphold a decision supported by
substantial evidence despite procedural errors, we would necessarily vacate the summary
judgment in favor of Hourani without considering the procedural errors the superior court
identified. We therefore address the Hospital’s argument and review the denial de novo.
See Strojnik, 201 Ariz. 430, ¶ 11, 36 P.3d at 1203.
3
¶5 Section 36-445, A.R.S., requires licensed hospitals to have their medical staffs
evaluated through peer review. In order to “encourage full and frank discussions and
decision-making” in a process that can be both time consuming and contentious, Scappatura
v. Baptist Hospital, 120 Ariz. 204, 210, 584 P.2d 1195, 1201 (App. 1978), the legislature
granted immunity to physicians engaging in peer review under § 36-445.02(B) by limiting
any legal remedy to injunctive relief, providing:
No hospital or outpatient surgical center and no
individual involved in carrying out review or disciplinary duties
or functions of a hospital or center pursuant to § 36-445 may be
liable in damages to any person who is denied the privilege to
practice in a hospital or center or whose privileges are
suspended, limited or revoked. The only legal action which
may be maintained by a licensed health care provider based on
the performance or nonperformance of such duties and
functions is an action for injunctive relief seeking to correct an
erroneous decision or procedure. The review shall be limited to
a review of the record. If the record shows that the denial,
revocation, limitation or suspension of membership or privileges
is supported by substantial evidence, no injunction shall issue.
In such actions, the prevailing party shall be awarded taxable
costs, but no other monetary relief shall be awarded.
¶6 The Hospital contended in its motion that the record contains substantial
evidence supporting the revocation of Hourani’s privileges; therefore, it argued, regardless
of any procedural violations, § 36-445.02(B) requires that “no injunction shall issue” and
the courts must uphold the Governing Board’s decision.1 Hourani countered that, even if
1
At the hearing before the superior court, the Hospital conceded that an “egregious”
procedural violation would authorize injunctive relief. Neither the history of the statute nor
its wording justifies any distinction between those procedural violations that are egregious
and those that are material but not egregious.
4
substantial evidence exists to support the Board’s decision, § 36-445.02(B) entitles him to
injunctive relief to remedy the Hospital’s violation of its revocation procedures.
¶7 In interpreting a statute, our primary goal is to ascertain the legislature’s intent.
Ziemak v. Schnakenberg, 210 Ariz. 442, ¶ 14, 111 P.3d 1042, 1046 (App. 2005). If the
statute is clear and unambiguous, we apply the plain meaning of the statute. See id. When
an ambiguity exists, however, we attempt to determine legislative intent by considering “the
statute’s context, subject matter, historical background, effects and consequences, and spirit
and purpose.” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). In
construing a statute, “‘we consider the statutory scheme as a whole and presume that the
legislature does not include statutory provisions which are redundant, void, inert, trivial,
superfluous, or contradictory.’” Parrot v. DaimlerChrysler Corp., 210 Ariz. 143, ¶ 9, 108
P.3d 922, 924 (App. 2005), quoting State v. McDermott, 208 Ariz. 332, ¶ 5, 93 P.3d 532,
534 (App. 2004).
¶8 We find that language in § 36-445.02(B) could support either party’s
interpretation. The statute provides that a physician may file “an action for injunctive relief
seeking to correct an erroneous decision or procedure.” Id. However, it also states that an
injunction shall not be issued if the decision “is supported by substantial evidence.” Id.
Because those provisions could be interpreted as inconsistent, the language is ambiguous,
and we must look beyond the language of the statute to determine the intent of the
legislature.
5
¶9 The Arizona legislature enacted the state’s first statutorily mandated peer
review requirement in 1971. 1971 Ariz. Sess. Laws, ch. 203, § 1. The statutes mandated
peer review of physicians practicing in hospitals and provided immunity to those
participating in the peer review process for decisions made “without malice and in good
faith.” Id. They did not specifically provide for any judicial review of a final peer review
decision. In 1984, the legislature amended § 36-445.02 and removed all liability for those
involved in peer review activities, added hospitals themselves to the immunity provision, and
only permitted a plaintiff to seek injunctive relief for an erroneous decision or procedure
occurring during the peer review process. 1984 Ariz. Sess. Laws, ch. 119, § 1; see
Goodman v. Samaritan Health Sys., 195 Ariz. 502, ¶ 20, 990 P.2d 1061, 1066 (App.
1999); Gilbert v. Bd. of Med. Exam’rs, 155 Ariz. 169, 178, 745 P.2d 617, 626 (App.
1987).
¶10 After the statute was enacted but prior to the amendment of § 36-445.02 in
1984, this court espoused the general rule that the exclusion of a physician from staff
privileges in a private hospital was not subject to judicial review. Peterson v. Tucson Gen.
Hosp., Inc., 114 Ariz. 66, 69, 559 P.2d 186, 189 (App. 1976). Even so, this court found
that the prohibition against judicial review did not apply when “there is a contention that
the hospital failed to conform to procedural requirements set forth in a hospital’s
constitution, bylaws, or rules and regulations.” Id.; see also Holmes v. Hoemako Hosp.,
117 Ariz. 403, 404, 573 P.2d 477, 478 (1977) (courts have authority to review both
“procedural and substantive aspects” of suspension of a physician’s privileges); Bock v. John
6
C. Lincoln Hosp., 145 Ariz. 432, 433, 702 P.2d 253, 254 (App. 1985) (“Since . . . the
hospital breached its own procedural requirements, we have full authority to consider this
case.”).
¶11 In its 1984 revision, the legislature did not express any intent to limit a court’s
authority to review a decision based on a procedural defect; instead, the legislature appeared
to codify the courts’ opinions by amending the statute to permit aggrieved parties to file “an
action for injunctive relief seeking to correct an erroneous decision or procedure.” § 36-
445.02(B). Furthermore, because we presume that the legislature did not include a
provision that is “inert, trivial, [or] superfluous,” Parrot, 210 Ariz. 143, ¶ 9, 108 P.3d at
924, we cannot find that the legislature granted physicians a right of action to correct an
erroneous procedure and then, two sentences later, withheld any remedy for an erroneous
procedure if substantial evidence supports the decision. Rather, we conclude that the
legislature intended to allow courts to review the proceedings for both procedural and
substantive errors, employing a deferential standard of review.
¶12 We therefore conclude that § 36-445.02(B) permits a physician to bring an
action to correct an erroneous decision or procedure and, if error is proved, entitles the
physician to injunctive relief. Based on this conclusion, we reject the Hospital’s argument
that the court erred in denying its motion for summary judgment.
GRANT OF SUMMARY JUDGMENT
¶13 The Hospital next argues that the court erred in granting Hourani’s motion for
summary judgment, contending that questions of material fact exist that precluded judgment.
7
A motion for summary judgment should only be granted if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a matter of law.” Ariz.
R. Civ. P. 56(c), 16 A.R.S., Pt. 2; see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802
P.2d 1000, 1008 (1990). We review a trial court’s grant of summary judgment de novo,
viewing the facts and reasonable inferences therefrom in the light most favorable to the
nonmoving party. Link v. Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App.
1998).
¶14 In granting Hourani’s motion, the court identified four defects in the Hospital’s
revocation proceedings. The court found that there were no genuine issues of material fact
on these violations and that Hourani was entitled to injunctive relief; the court ordered the
Hospital to withdraw its revocation of Hourani’s privileges “unless and until proper
procedures are followed in accordance with the Bylaws.”
¶15 The court’s first identified procedural defect, which the parties had not argued,
was that the hearing officer had failed to recommend a sanction.2 In his report to the
2
Hourani did not bring this defect or the other alleged defects to the attention of the
hearing officer, the Appellate Review Committee, or the Governing Board. At any time
during this process, all of the alleged defects could have been corrected. Hourani cannot
allow procedural defects to continue and await the final outcome before complaining about
them. See DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 340, 686 P.2d 1301, 1310
(App. 1984) (failure to raise issue before administrative tribunal precludes judicial review
of that issue unless issue is jurisdictional); see also Duffield v. Charleston Area Med. Ctr.,
503 F.2d 512, 515 (4th Cir. 1974) (claim of bias and prejudice must be raised promptly after
knowledge of alleged disqualification); accord Neal v. City of Kingman, 169 Ariz. 133,
136, 817 P.2d 937, 940 (1991); Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 148,
¶ 8, 985 P.2d 633, 636 (App. 1999). Although these cases did not arise in a § 36-445.02(B)
context, this waiver principle advances the intent of the statute by limiting the role of the
courts in reviewing hospital proceedings.
8
Executive Committee, the hearing officer detailed Hourani’s alleged “variances” but did not
recommend any specific action on them. The court found that, under the Hospital’s bylaws,
the Executive Committee is bound to consider the hearing officer’s findings as well as
recommendations. However, the court said: “In this case, the executive committee could
not have considered what was not provided. The failure of the hearing officer to have
included recommendations not only deprived the executive committee of the benefit of those
recommendations, but similarly deprived the Appellate Review Committee and the
Governing Board.”
¶16 The Appellate Review Committee is only required to consider the hearing
officer’s report; it is not bound by it in any way. And Hourani did not present any evidence
that he has suffered any prejudice from the hearing officer’s failure to recommend a sanction.
Therefore, particularly in the absence of any timely objection by Hourani, we do not find
that, as a matter of law, the hearing officer’s failure to make a recommendation invalidates
the proceeding.
¶17 The court next found that the peer review process was procedurally flawed
because Dr. Andrew Mayberry was appointed to the Appellate Review Committee as the
practitioner peer. The Hospital’s bylaws require that the Appellate Review Committee be
composed of three members, two members of the Governing Board and one practitioner
But, as Hourani notes, the Hospital did not argue Hourani’s waiver before the
superior court. On appeal from summary judgment, an appellant may not advance new
theories or raise new issues to secure reversal. Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86
P.3d 944, 949-50 (App. 2004). We therefore will not consider Hourani’s arguments waived.
9
peer. The bylaws further provide that the practitioner peer “shall not be in direct economic
competition with the affected Practitioner and shall be a peer of the Practitioner in a similar
specialty under similar circumstances.”
¶18 The court noted that the record was not clear as to what Mayberry’s specialty
is. Nevertheless, the court determined that, in order to qualify as a peer “in a similar
specialty under similar circumstances,” Mayberry had to be in direct economic competition
with Hourani. Based on this analysis, the court concluded that Mayberry did not qualify as
a practitioner peer under the Hospital’s bylaws and was ineligible to serve on the Appellate
Review Committee.
¶19 The requirement that Mayberry have a “similar specialty” does not logically
mean that he must practice emergency medicine or be in direct economic competition with
Hourani. He could be in a similar specialty, satisfying the second criterion, without being
in direct economic competition with Hourani, which would violate the first criterion.
Furthermore, the record shows that Hourani was a contract physician employed by EmCare,
Inc., whereas Mayberry was employed by Benson Hospital. And nothing in the record
requires the conclusion that these two physicians competed for the same patients.
Construing the facts and all reasonable inferences against Hourani, see Link, 193 Ariz. 336,
¶ 12, 972 P.2d at 673, we find that a question of fact exists on whether Mayberry was in
direct economic competition with Hourani. See Pariser v. Christian Health Care Sys., Inc.,
816 F.2d 1248, 1251 (8th Cir. 1987) (fact that executive committee member was only other
10
internal medical specialist in area insufficient to show “sufficient economic competition” in
peer review process).
¶20 The court also found as a procedural flaw that Andrew Mayberry had served
on both the Executive Committee and the Appellate Review Committee, noting that “it is
implicit in the very nature of ‘appellate review’ that the review be made by an impartial
officer or group” and that “no one can be truly impartial in reviewing his or her own
actions.” In essence, the court found that, as a matter of law, Mayberry’s participation in the
Executive Committee’s investigation of Hourani’s actions disqualified him from later
adjudicating this action on the Appellate Review Committee. But the Hospital’s bylaws
contain no prohibition against a member of the Executive Committee serving on the
Appellate Review Committee. Therefore, Mayberry was only disqualified if his presence on
both committees deprived Hourani of due process.3 See Holmes v. Hoemako Hosp., 117
Ariz. 403, 405, 573 P.2d 477, 479 (1977); Bock v. John C. Lincoln Hosp., 145 Ariz. 432,
3
Although the Hospital does not dispute that Hourani was entitled to due process, we
do not necessarily agree that the concept of constitutional due process applies to this
situation. Other jurisdictions have also questioned this proposition. See Pariser v.
Christian Health Care Sys., Inc., 816 F.2d 1248, 1251 (8th Cir. 1987); Modaber v.
Culpeper Mem’l Hosp., Inc., 674 F.2d 1023, 1026 (4th Cir. 1982); Campbell v. St. Mary’s
Hosp., 252 N.W.2d 581, 585-86 (Minn. 1977); Ritterband v. Axelrod, 562 N.Y.S.2d 605,
608 (N.Y. Sup. Ct. 1990). Nevertheless, the parties have argued this issue as one of due
process and we evaluate their positions with that constraint. Moreover, the bylaws are a
contract. Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, ¶ 12, 981 P.2d 584, 588
(App. 1998). Accordingly, the Hospital must comply with the covenant of good faith and
fair dealing implied in every contract. See Kuehn v. Stanley, 208 Ariz. 124, ¶ 29, 91 P.3d
346, 354 (App. 2004).
11
433, 702 P.2d 253, 254 (App. 1985) (hospital privilege actions reviewed for fundamental
due process violation).
¶21 Due process of law contemplates a “‘fair trial in a fair tribunal.’” United
States v. Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985), quoting In re
Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 (1955). All decision
makers, judges and administrative tribunals alike, are entitled to a presumption of “honesty
and integrity.” Pavlik, 195 Ariz. 148, ¶ 24, 985 P.2d at 639. When confronted with the
dual roles held by an administrative fact-finder in an analogous situation, the United States
Supreme Court held in Withrow v. Larkin, 421 U.S. 35, 58, 95 S. Ct. 1456, 1470, 43 L. Ed.
2d 712, 730 (1975), that “the combination of investigative and adjudicative functions does
not, without more, constitute a due process violation” by creating an unconstitutional risk
of bias. Citing Withrow, Division One of this court subsequently held that, when an
administrative agency has both investigative and adjudicative responsibilities, “it will be
necessary for the agency to receive the results of investigations, to make preliminary
decisions or approve the filing of formal charges, and then to participate in the resulting
hearings. This type of procedure does not violate due process of law.” DeGroot v. Ariz.
Racing Comm’n, 141 Ariz. 331, 341, 686 P.2d 1301, 1311 (App. 1984); see also Duffield
v. Charleston Area Med. Ctr., Inc., 503 F.2d 512, 519 (4th Cir. 1974) (action of
investigatory committee was “administrative step in bringing the issue to a head” that did not
disqualify that committee’s members from sitting on adjudicatory committee); Leonard v.
Bd. of Dirs., Prowers County Hosp. Dist., 673 P.2d 1019, 1024-25 (Colo. Ct. App. 1983);
12
accord In re Crooks, 800 P.2d 898, 904 (Cal. 1990); In re Zoarski, 632 A.2d 1114, 1121
(Conn. 1993). Accordingly, the fact that Mayberry initially served on the committee that
recommended revocation of Hourani’s privileges is insufficient, in and of itself, to disqualify
Mayberry from later reviewing that action on appeal.
¶22 Hourani argues that these cases are distinguishable because Mayberry sat on
both the Executive Committee that decided to bring charges and the Appellate Review
Committee that reviewed the Executive Committee’s decision. But the principles announced
in Withrow and DeGroot apply equally here. Because the Governing Board was the final
decision-maker in revoking Hourani’s privileges, the fact that the prior proceeding was
termed “appellate” is of no import, as it was merely preliminary to the Governing Board’s
final decision.
¶23 Nevertheless, a plaintiff may challenge a decision maker’s impartiality by
“demonstrat[ing] that the mind of the decision maker is ‘irrevocably closed’ on the particular
issues being decided.” Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods.,
Inc., 167 Ariz. 383, 387, 807 P.2d 1119, 1123 (App. 1990), citing Fed. Trade Comm’n v.
Cement Inst., 333 U.S. 683, 701, 68 S. Ct. 793, 803, 92 L. Ed. 1010, 1034 (1948).
However, “mere exposure to evidence presented in nonadversary investigative procedures
is insufficient in itself to impugn the fairness of the [decision maker] at a later adversary
hearing.” Withrow, 421 U.S. at 55, 95 S. Ct. at 1468, 43 L. Ed. 2d at 728. To be
successful, a plaintiff must show that any bias or predetermination of the facts is based on
an “extrajudical source” that results in a decision based on something other than what the
13
decision maker learned from participating in the case. United States v. Grinnell Corp., 384
U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778, 793 (1966); see also Havasu
Heights, 167 Ariz. at 387, 807 P.2d at 1123.
¶24 Hourani did not present any evidence that Mayberry had received information
from an “extrajudicial source” or was unable to fairly evaluate the findings by the hearing
officer and discuss the matter with other members of the Appellate Review Committee in
deciding what sanction to impose. Therefore, Hourani failed to overcome the presumption
of Mayberry’s “honesty and integrity.” Pavlik, 195 Ariz. 148, ¶ 24, 985 P.2d at 639.
Construing the facts and reasonable inferences therefrom in the light most favorable to the
Hospital, see Link, 193 Ariz. 336, ¶ 12, 972 P.2d at 673, we cannot conclude that
Mayberry’s presence on the Appellate Review Committee denied Hourani the right to a fair
hearing.
¶25 In a supplemental citation of authority, Hourani relies on two cases to support
his claim that Mayberry should have been disqualified. Hourani first cites Yaqub v. Salinas
Valley Memorial Healthcare System, 18 Cal. Rptr. 3d 780, 788 (App. 2004), for the
proposition that, when individuals serve on both an appellate review body as well as the
panel that makes the initial decision, such action “strain[s] the bounds of due process.” But,
in Yaqub, the court invalidated the revocation of privileges because the hearing officer had
an actual financial bias that disqualified him. The court then warned that, in any future
hearing that might occur in which neither side had counsel, the attorney who had advised
the panel in its investigative endeavors should be precluded from also advising the board in
14
its adjudicative duties. We find this dictum both inapplicable to the situation here and
unpersuasive.
¶26 Hourani also cites Yaqub for the proposition that a disciplinary panel member
should be precluded from “sitting on [an appellate] panel and reviewing its own decision
made in a previous hearing.” Id. at 789. But the court made this statement in the context
of quoting the trial court’s reasoning for rejecting the argument raised under a California
statute, which prohibited individuals from serving dual roles. Accordingly, we find Yaqub
inapplicable to this case.
¶27 Hourani’s second supplemental citation of authority is an unpublished district
court opinion from Louisiana. Other than two exceptions that do not apply to this case,
unpublished decisions “shall not be regarded as precedent nor cited in any court.” Ariz. R.
Civ. App. P. 28(c), 17B A.R.S. This prohibition extends to federal district court
memorandum decisions. See Walden Books Co. v. Dep’t of Revenue, 198 Ariz. 584, ¶ 21,
12 P.3d 809, 814 (App. 2000) (rule prohibiting citation of memorandum decisions applies
to memorandum decisions by any court). We therefore refuse to consider it.
¶28 Finally, the court found that Dr. Carter Mayberry4 should have recused himself
from “any voice or vote” on the Governing Board when it voted to revoke Hourani’s
privileges. The court’s ruling is unclear as to why Carter Mayberry should have recused
himself, but Hourani defends the decision based on Mayberry’s participation as a member
of the Executive Committee. Again, the bylaws do not prohibit a member from serving on
4
Carter Mayberry is the brother of Andrew Mayberry.
15
both the Executive Committee and the Governing Board. And Hourani did not present any
evidence that Mayberry’s participation on the Executive Committee “irrevocably closed” his
mind on whether the Governing Board should revoke Hourani’s privileges. Havasu Heights,
167 Ariz. at 387, 807 P.2d at 1123. Accordingly, we are unable to conclude as a matter of
law that Carter Mayberry’s failure to recuse himself violated Hourani’s fair hearing rights.
DISPOSITION
¶29 We affirm the superior court’s denial of the Hospital’s cross-motion for
summary judgment. But, because we find as a matter of law that the unchallenged lack of
a recommendation from the hearing officer was insufficient to invalidate the process and that
questions of material fact exist on whether other procedural violations occurred during
Hourani’s revocation proceedings, we reverse the judgment on this issue and remand this
matter to the superior court for further proceedings.
____________________________________
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
____________________________________
J. WILLIAM BRAMMER, JR., Judge
____________________________________
PETER J. ECKERSTROM, Judge
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