"‘I’m very brave generally . . . only to-day I happen to have a headache.’ ’1 Do I ever, having found myself trapped between two opinions that need a case. But I cannot subscribe to the analysis employed by either of my colleagues and simply accept that this panel has agreed to disagree. In that vein, I offer the following.
*251I
Fountain Valley Regional Hospital and Medical Center (FVRHMC or the hospital) first challenges the judgment on procedural grounds.2 It contends the superior court abused its discretion in refusing to dismiss Oskooi’s petition for delay in prosecution. While this is precisely the argument a party would make when seeking a pretrial writ (see, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557 [86 Cal.Rptr. 65, 468 P.2d 193]; Martindale v. Superior Court (1970) 2 Cal.3d 568 [86 Cal.Rptr. 71, 468 P.2d 199]), it has little relevance at this stage; the California Constitution precludes this court from reversing a judgment “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, §13.) That little problem, virtually ignored by the hospital and the lead opinion, is nevertheless one that must be addressed.
As mentioned, Oskooi’s summary suspension and administrative hearing occurred in 1987. The hospital’s final decision was rendered in early 1988, and Oskooi’s petition for writ of mandate was filed September 2, 1988. The court did not hold a hearing on the petition’s merits until January 8, 1993, however. In the interim, the defense lost a motion for a discretionary dismissal based on Oskooi’s unexcused delay in prosecution. (Code Civ. Proc., §§ 583.410, 583.420.)
FVRHMC did not challenge the denial of its motion with a prehearing petition to this court for extraordinary relief. Instead, the hospital went ahead with the court hearing and lost on the merits. Only now, on appeal from the adverse judgment, has the hospital sought review of the court’s discretionary pretrial ruling. But on this point, Reid v. Balter (1993) 14 Cal.App.4th 1186 [18 Cal.Rptr.2d 287] is dispositive.
In Reid the trial court denied a defense motion for a discretionary dismissal based on delay in prosecution and defendants lost in a jury trial.3 They sought a reversal of the judgment based on the court’s pretrial refusal to dismiss the action. The appellate panel recognized there was no point in debating whether the court in fact abused its discretion. Instead, the reviewing court assumed “arguendo the trial court abused its discretion in not granting defendants’ motion for discretionary dismissal” (14 Cal.App.4th at *252p. 1195) and then concluded the presumed error did not compel reversal; “When an appeal is taken from a judgment and the appellant alleges the trial court made an erroneous pretrial ruling, it is not enough to show that the ruling was indeed erroneous. In addition, the appellant must also ‘show resulting prejudice, and the probability of a more favorable outcome, at trial.’ (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 832 [16 Cal.Rptr.2d 38] [relying on both statutory law ([Code Civ. Proc.,] § 475) and constitutional law (Cal. Const., art. VI, § 13)].) [U • • • [Here,] defendants have not made a sufficient showing that they were prejudiced at trial by the denial of their motion and that it was probably this prejudice that caused the verdict to go against them. While the record does contain defendants’ attorney’s declaration wherein he stated that because of the passage of time in this case, [defense] witnesses . . . were not available for trial, this declaratory evidence is too . . . conclusionary [and] ... we are unable to determine just how, if at all, they were actually prejudiced at trial by the court’s denial of their motion to dismiss. On such a showing we cannot conclude that the trial court’s allegedly erroneous ruling rendered the ultimate result in this case unjust.”4 (14 Cal.App.4th at p. 1195.)
The court added, “There is another reason for denying defendants appellate relief now, a strong public policy reason. After their motion for discretionary dismissal was denied, and prior to trial, defendants had the option of seeking pretrial review by petitioning for a writ of mandamus to compel the trial court to grant their motion to dismiss. Instead, defendants let this case proceed to trial, hereby expending the trial court’s, the plaintiffs’, and their own resources in both trial and posttrial proceedings, proceedings which defendants now contend should never have taken place, [f] While the discretionary dismissal statute was enacted for the benefit of defendants named in lawsuits, it was also enacted for the public’s benefit, i.e., to expedite the administration of justice by declogging court calendars and putting an end to elderly cases. [Citation.] By letting this case proceed to trial instead of petitioning for mandamus relief when their motion to dismiss was denied, defendants thwarted both purposes of the statute. It was counterproductive to wait until after the case had proceeded to trial and judgment to request review of the order denying dismissal. As defendants failed to seek a pretrial resolution of the dismissal issue, we are not inclined to now disturb plaintiffs’ victory on the merits.” (14 Cal.App.4th at pp. 1195-1196.) Neither am I.
*253Justice Sonenshine seems to have been persuaded by the sheer weight of the hospital’s effort to establish the trial court’s erroneous denial of the motion to dismiss. But the hospital’s effort is wasted, in my view. Like the appellate panel in Reid, I am perfectly willing to assume the trial court abused its discretion and proceed directly to the pertinent questions: Was defendant prejudiced by the delay in prosecution? Did that prejudice contribute to the adverse verdict? Was there a miscarriage of justice? Each of these questions must be answered in the negative.
Typically, prejudice from an unwarranted delay in prosecution that could “cause[] the verdict to go against” (14 Cal.App.4th at p. 1195) a defendant stems from the unavailability of witnesses critical to the defense. That was not a factor here, of course, because the superior court was a limited to a review of the administrative record and no witnesses were called. But the potential for prejudice to the hospital by an unwarranted delay in prosecuting this writ petition existed in two other areas. With a favorable judgment on this petition, Oskooi would be in a position to sue the hospital for damages. Damages based on a five-year loss of privileges could be significantly greater than those based on only a one-year suspension; but the trial court anticipated this issue and included a provision in the judgment that effectively limits the award of any damages to losses incurred only to September 2, 1989, the first anniversary of the filing of the petition.
The second potential problem concerned the hospital’s responsibility to reinstate Oskooi. As the judgment recites, however, even though the summary suspension was not supported by substantial evidence, Oskooi’s long delay in bringing the petition to resolution made it unfair to order his reinstatement. Accordingly, the hospital is under no obligation to ever reinstate this physician.
In short, the trial court’s careful consideration of this matter eliminated the potential that its error, if any, would prejudice the hospital and result in a miscarriage of.justice. Accordingly, I would proceed directly to the merits, as has Justice Sills.
II
But, I cannot agree with Justice Sill’s analysis, either. Per Code of Civil Procedure section 1094.5, subdivision (d), “in cases arising from private hospital boards . . . abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” And our “scope of our review ... in this case is identical with that of the superior court. The same substantial evidence standard *254applies, and the issue is whether the findings of the [private hospital board] were based on substantial evidence in light of the entire administrative record. [Citations.] Moreover, because the trial court [does] not exercise its independent judgment in reviewing the [b]oard decision, but instead applied] the substantial evidence test, we must examine the findings made by the [b]oard itself to determine whether they were supported by substantial evidence, rather than limiting ourselves to a review of the findings made by the trial court.” (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335 [25 Cal.Rptr.2d 842].) Accordingly, I turn to the administrative record.
There we learn Oskooi graduated from medical school in 1961. He submitted a form application for appointment to the medical staff of FVRHMC, then known as Fountain Valley Community Hospital, on March 5, 1986. Item 6 on the application required him to “[l]ist all current and previous hospital affiliations, starting with most current (include assistantships and appointments).” The form provided lines for four entries. The general instructions at the beginning of the form advised, “If more space is needed than provided on original, attach additional sheets.” Oskooi had eight previous hospital affiliations, but he included only the most recent four and did not attach a separate sheet for his hospital affiliations between 1971 and 1985.
In response to item 13, however, the physician indicated he was in practice in Peoria and Maui during that 15-year period, and he truthfully responded in item 15 that his privileges had never been suspended, revoked, not renewed, or denied, and that he had never been disciplined by any medical organization.
According to Oskooi, when he turned in the application, he asked a hospital clerk whether he should add a page for his previous hospital affiliations. He testified at the administrative hearing that he was told not to bother and that other doctors, whom he did not identify by name, made the same omissions without adverse consequences.5
Oskooi was granted surgical privileges. After he had been on staff at FVRHMC for more than a year, the executive committee summarily suspended him, alleging his judgment was “not up to the standards of the medical community.” Oskooi appealed the suspension, and the hospital’s own board determined it was not merited.
*255Within three weeks of this defeat, the hospital administrator wrote Oskooi and advised, “Upon review of your original application for medical staff membership it became apparent that you failed to complete item #6 Affiliations .... Because of these omissions, you are asked to supply a list of all current and previous hospital affiliations immediately.” The letter also recited the prominent admonition on the application: “I Fully Understand That Any Significant Mis-Statements in or Omissions From This Application Constitute Cause for Denial of Appointment or Cause for Summary Dismissal From the Medical Staff. All Information Submitted by Me in This Application Is True to My Best Knowledge and Belief.” (Italics added.)
Five days later, Oskooi responded and provided the requested information. He also noted in the letter that the information was always readily available from various other agencies and organizations, including the California and Orange County Medical Associations. Despite Oskooi’s prompt response to the letter, the hospital summarily suspended his privileges the next day “due to significant omissions from your application for Medical Staff privileges and membership.” The only basis for the suspension was the failure to list all previous hospital affiliations. The notice further advised Oskooi was “entitled to request a hearing as provided in Article VIII, part B [of the hospital bylaws] (attached).”
The administrative hearing was conducted at Oskooi’s request. The hearing officer verbally confirmed the proceedings would be conducted according to the hospital’s bylaws. That meant the hospital had the initial burden to explain its determination; then Oskooi had to go forward to show the decision was erroneous.
The hospital’s evidence consisted solely of Oskooi’s application and the recent correspondence concerning the missing hospital affiliations. When it was Oskooi’s turn, he pointed out that article VIII, part B, section (a) of the bylaws give the hospital “the authority to suspend summarily all or any portion of the clinical privileges of an individual member of the medical staff whenever such action must be taken immediately in the best interest of patient care or safety in the hospital, or for the continued effective operation of the hospital.” (Italics added.) There is no dispute in this record that the hospital made no effort to establish the information omitted 18 months earlier had any adverse effect on patient care or safety or institutional operation. In fact, the physician designated to present the hospital’s evidence, Harold Kravitz, M.D., asserted at the hearing, “And I want to just point out one other thing. [Oskooi] talks about summary suspension because of patient care. That had nothing to do with the application.” (Italics added.)
*256And that, in my view, is precisely why FVRHMC cannot prevail. The hospital’s authority under its own bylaws to summarily suspend a physician’s staff privileges is triggered only upon a demonstrable threat to patient care and safety or effective hospital operation. Under the bylaws in effect when this administrative record was created, no exception or special rules authorize a summary suspension based solely on incomplete applications. In sports terms, the hospital chose the game and printed the rules. When it lost, it attempted to change the score by telling everybody the rules did not apply— right out of Lewis Carroll. The hospital’s decision was arbitrary and unsupported by substantial evidence.
Nor am I persuaded by Justice Sills’s blithe, but literal, conclusion that “[a] dismissal is worse than a suspension.” (Cone, opn., ante, at p. 250.) That may be true for those of us schooled only in the law. But for those in the medical profession, while a dismissal may be a consequence for a relatively benign transgression like submitting an incomplete staff application, a summary suspension brands the offending physician as someone whose conduct has threatened “patient care or safety in the hospital, or . . . the continued effective operation of the hospital.” The record before us supports the notion that the hospital could have simply dismissed Oskooi for his application omission after a fair hearing. It does not, however, support the notion that the hospital could summarily suspend Oskooi for this reason.
Finally, a comment to Justice Sills’s remark concerning “ ‘rudimentary’ fair procedure” (cone, opn., ante, at p. 249) is necessary. Citing Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 [116 Cal.Rptr. 245, 526 P.2d 253], he concludes, “The essential elements of this ‘rudimentary’ fair procedure are (1) notification of ‘the reason for the proposed rejection’ and (2) ‘a fair opportunity to defend.’ ” (Cone, opn., ante, at p. 249, italics added.) But Pinsker involved the denial of a physician’s application for staff privileges, not the stripping of privileges previously granted, as in Oskooi’s case. And the “notification for the proposed rejection” received by Oskooi carried with it the promise that, in order to prevail, the hospital would have to establish his conduct constituted a threat to patient care or safety or effective hospital administration. That is the only charge he had a fair opportunity to defend against. And, in my view, he succeeded.
In conclusion, I can only reiterate that my colleagues’ reversal of this fairly fought and fairly won judgment is unjust. The superior court determined FVRHMC’s summary suspension of Oskooi’s staff privileges was *257wrong.6 To the extent the suspension affected Oskooi’s ability to obtain staff privileges at other medical facilities, the judgment in his favor removed the impediment. But, laying responsibility for the delay in the resolution of this matter solely at Oskooi’s feet, the court carefully crafted a judgment to ensure he could not take advantage of his procrastination in any subsequent damage suit against FVRHMC and flatly refused to order reinstatement of his staff privileges.7 This court’s reversal of the judgment means, however, that FVRHMC will unfairly escape all consequences of its wrongful conduct and Oskooi will unfairly be prevented from fully pursuing his chosen profession: “Beware the Jabberwock, my son! [<J0 The jaws that bite, the claws that catch!”8
Appellant’s petition for review by the Supreme Court was denied April 25, 1996.
Carroll, Alice’s Adventure in Wonderland & Through the Looking-Glass (Bantam Books 1981) page 151.
It is also the hospital’s most insistent line of attack. Quantity is not the sine qua non of effective appellate advocacy, of course; but FVRHMC allotted 40 of the 49 pages in the opening brief to this first issue.
The case had been dismissed once when plaintiffs did not appear for a status conference. The dismissal was vacated, however, without prejudice to a defense motion to dismiss for delay in prosecution.
As an aside, I note FVRHMC was prejudiced by the denial of the motion for a discretionary dismissal only in the sense that had the petition not been tried on the merits, the hospital could not have lost. But, as the Supreme Court observed in Denham v. Superior Court, supra, 2 Cal.3d at page 566, this sort of “prejudice” is not the kind that results in a miscarriage of justice.
This is the only evidence in the administrative record where there was a conflict. The physician designated to present the hospital’s case asserted Oskooi’s statement concerning the clerk’s advice was a lie. No one called any percipient witness to resolve the dispute.
FVRHMC challenges this conclusion on appeal as well. I find no merit in its arguments.
Oskooi wisely did not attack these elements of the judgment in a cross-appeal. His prayer to the court to strike the language intended to limit any damages in a subsequent civil action to those incurred in the approximately seven months after the summary suspension carries no legal weight.
Carroll, Alice’s Adventure in Wonderland & Through the Looking-Glass, supra, page 117.