The California Supreme Court recently issued its decision in Boermeester v. Carry. Though the case deals with fair procedure within a private university's internal disciplinary proceedings, it provides helpful guidance for peer review bodies navigating medical disciplinary hearings.
Boermeester reiterated the long-standing admonition that courts should not try to impose "rigid procedures" upon private organizations' administrative proceedings. Rather, the organizations themselves should develop methods for providing the fundamentals of fair procedure—adequate notice and an opportunity to respond—that best fit their respective needs.
USC Expels Boermeester After Following Its Internal Procedure
In Boermeester, the University of Southern California expelled student Matthew Boermeester after conducting a two-month investigation and concluding he had violated university policy against engaging in intimate partner violence. Before his expulsion, USC followed its internal administrative procedures, providing notice to both Boermeester and the victim, conducting a formal investigation with fact gathering and witness interviews, and giving both Boermeester and the victim an opportunity to review and respond to the evidence developed in the investigation. These attributes of USC's internal process are core components of California's fair procedure doctrine.
But within USC's procedure, Boermeester and the victim would have "individual and separate" evidence review meetings. This meant that Boermeester could submit questions to be asked of the victim at her separate evidence review meeting, but he and his lawyer could not personally attend her meeting in order to cross-examine her, or any other witnesses, in real time.
Ultimately, after the administrative process concluded, USC expelled Boermeester for violating university policy.
Boermeester Challenges His Expulsion in Court
Boermeester challenged his expulsion in Los Angeles Superior Court, arguing USC's disciplinary proceedings were procedurally unfair. The trial court denied his challenge, but the Court of Appeal reversed. On appeal, the court concluded that USC's procedures were unfair because Boermeester had not been given the opportunity to "directly or indirectly" question the victim and third-party witnesses "in real time at a live hearing." Notably, the Court of Appeal made clear that the victim and witnesses need not be "physically present" for the live hearing―they could appear by videoconference or another method that would allow "contemporaneous" observation of witness testimony and the opportunity to ask follow up questions.
The California Supreme Court agreed to hear the case to determine whether fair procedure requires a private organization to provide a party with a hearing "featuring real-time direct or indirect cross-examination of all parties and witnesses." Given its potential impact on peer review hearings, the California Hospital Association ("CHA") filed an amicus brief urging the California Supreme Court to overturn the appellate decision. The CHA argued that requiring live testimony for administrative hearings would "chill whistleblower reporting and exclude evidence from non-testifying witnesses in medical disciplinary hearings" and "make such hearings even longer and more burdensome than they are already, by needlessly multiplying witnesses."
The California Supreme Court held that USC was not required to provide Boermeester the opportunity to conduct live, real-time cross-examination of witnesses, either in-person or virtually. The Court emphasized that it has never held that specific procedures must be followed to satisfy the basic requirements of fair procedure: notice and an opportunity to be heard. To the contrary, case law cautions against courts imposing "rigid," universal procedures upon private organizations―to do so would be an improper intrusion into the organization's internal affairs.
Instead, the Court reaffirmed that private organizations should be given "broad discretion" to formulate their own disciplinary procedures by which a party is provided the requisite notice and an opportunity to respond. This discretion properly allows organizations to balance their unique, competing interests, like encouraging witnesses to participate and conserving resources for the organization's primary purpose. The Court also made clear that fair procedure does not demand the same "embellishments" as a court trial. Private organizations are "ill-equipped" to function as courts and to require them to abide by trial-type procedures is not only impractical, but could easily overwhelm administrative proceedings.
Boermeester's Impact on the Right to Cross-Examination in Peer Review Hearings
Although Boermeester grapples with fair procedure in the context of a private, post-secondary university, it provides helpful guidance for peer review bodies conducting medical disciplinary hearings.
Under California law, peer review fair procedure is governed by statute, under Business and Professions Code, section 809 et seq. These fair procedure provisions provide minimum requirements, and their interpretation can be influenced by the common law doctrine of fair procedure.
As relevant here, Business and Professions Code section 809.3 requires that a practitioner be afforded the right to cross-examine witnesses who are called to testify at a formal, peer review hearing. But that section does not require that cross-examination be conducted at a live hearing or in "real-time," nor does it require that a practitioner be permitted to cross-examine all witness interviewed at any point throughout the peer review proceedings. Thus, like Boermeester, practitioners in a peer review hearing are not entitled to a broad, unencumbered right to cross-examine all percipient witnesses at a live hearing. More broadly, Boermeester provides useful authority to healthcare entities facing challenges by practitioners as to the fairness of peer review proceedings. Imposing trial-like requirements on private organizations is improper under the common law doctrine of fair procedure. Beyond the minimum statutory fair procedure requirements, hospitals and medical staffs are free to adopt customized procedures using their own professional expertise, institutional knowledge, understanding of their unique needs, and the goals of the peer review process. Hearing officers, too, should be mindful of the fair procedure doctrine's flexibility when ruling on a practitioner's challenge to the medical staff bylaws or fair hearing procedures.
Boermeester's Relevance Regarding Virtual Peer Review Hearings
Reflecting the new post-pandemic reality of virtual proceedings, California courts have held that hearings held by video do not violate fair procedure or due process rights in various contexts. (Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1070; People v. Whitmore (2022) 80 Cal.App.5th 116, 125.) In Boermeester, the Supreme Court reiterated that courts have been careful to observe that there are "several alternate ways" of providing individuals with the opportunity to hear and respond to witness testimony other than by a live, in-person hearing. The Court made clear that its holding applied regardless of whether the hearing is conducted in-person or virtually―recognizing that virtual hearings are now common within administrative proceedings and implicitly approving them.
Thus, Boermeester provides renewed support for the use of virtual, remote, or videoconference peer review hearings. This dovetails with Business and Professions Code, section 809 et seq., which does not require that peer review hearings be conducted in-person. Given the demands of busy practitioners participating in the peer review process and the importance of conducting hearings efficiently and effectively, a virtual option provides useful flexibility. These unique needs and goals should be considered by peer review bodies and hearing officers in determining whether to conduct proceedings in-person or remotely.
When evaluating the adequacy of internal hearing procedures, peer review bodies should consult with counsel. Any procedures adopted should be fair to the practitioner, workable for the peer review body, and consistent with the law.
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