Smith v. Selma Community Hospital

The governing board of Selma Community Hospital (also SCH) terminated the hospital privileges of Brenton R. Smith, M.D., and Smith filed a petition for writ of mandamus seeking to have his hospital privileges reinstated. Smith prevailed in the writ proceeding and also won when the hospital appealed. (Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478 [ 80 Cal.Rptr.3d 745 ] [superior court’s issuance of writ affirmed].) After the appeal, Smith filed a motion for attorney fees pursuant to Business and Professions Code section 809.9. The trial court denied the motion, and Smith appealed.

Section 809.9 provides that the court shall award attorney fees “to a substantially prevailing party” in a peer review lawsuit “if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith.” The parties disagree on (1) the interpretation of section 809.9, (2) the proper application of the opinion in Mir v. Charter Suburban Hospital (1994) 27 Cal.App.4th 1471 [ 33 Cal.Rptr.2d 243 ] (Mir), (3) the evidence that is relevant to the determination of bad faith, and (4) whether this court can determine as a…