IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

ABDULKADIR HOURANI, M.D.,

Plaintiff/Appellee,

v.

BENSON HOSPITAL, an Arizona

nonprofit corporation,

Defendant/Appellant. )

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) 2 CA-CV 2004-0155

DEPARTMENT A

O P I N I O N

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

Slutes, Sakrison & Hill, P.C.

By Tom Slutes and Diana L. Kanon-Ustariz Tucson

Attorneys for Plaintiff/Appellee

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 SEP 27 2005 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

of his hospital privileges. The Hospital also argues that the court erred by denying its crossmotion 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 roo m 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 dis cussed 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 deci de 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 appeale d the Executive Committee’s recommendation to the

Appellate Review Committee. After a hearing, the Appellate Review Committee adopted3

the Executive Com

mittee’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 gra nted 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 A riz. 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 Hospit al’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 1203.1 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 ¶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 s u rgical 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 taxabl e

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 if5

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. S ee 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 provision s which are redundant, void, inert, trivial,

superfluous, or contradictory.’” P arrot 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.” I d

.

Because those provisions could be interpreted as inconsistent, the language is ambiguous,

and we must look beyond the langu a ge of the statute to determine the intent of the

legislature.6

¶9 The Arizona legislature en a cted 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; s ee

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 f rom 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 proc edural requirements set forth in a hospital’s

constitution, bylaws, or rules and regulations.” Id.; see also Holmes v. Hoemako Hosp.

,

117 Ariz. 40 3, 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. John7

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 physicia n s 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 decis ion. Rather, we conclude that the

legislature intended to all ow 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.2 Hourani did not bring this defect or the other alleged defects to the attention of the

hearing officer, the Appellate Review Committe e, 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. S ee 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); a ccord Neal v. City of Kingman

, 169 Ariz. 13 3

, 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 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 inferenc es therefrom in the light most favorable to the

nonmoving party. L ink v. Pima County

, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App.

1998).

¶14 In granting Hourani’s mo tion, 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 w i thdraw its revocation of Hourani’s privileges “unless and until proper

procedures are followed in accordance with the Bylaws.”

¶15 The cou r

t’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 theBut, as Hourani notes, the Ho spital 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. M itchell v. Gamble

, 207 Ariz. 364, ¶ 16, 86

P.3d 944, 949-50 (App. 2004). We therefore will not consider Hourani’s arguments waived.

9 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 Com

mittee 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 Commit tee 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 Governin g Board and one practitioner10

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 Houra ni, 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 other3 Although the Hospital does not dispute that Hourani was entitled to due process, we

do not necessarily agree that the concept of const itutional due process applies to this

situation. Other jurisdictions have also questioned this proposition. S ee Pariser v.

Christian Health Care Sys., Inc.

, 81 6 F.2d 1248, 1251 (8th Cir. 1987); M odaber 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. S amaritan 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 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 ‘appel late review’ that the review be made by an impartial

officer or group” and that “no one ca n 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 lat e r

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. 432,12

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), q uoting 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.” P avlik

, 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 W

ithrow

, Division One of this court subsequently held tha t, when an

administrative agency has both investigative and adjudicat ive responsibilities, “it will be

ne cessary 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.” D eGroot v. Ariz.

Racing Comm’n

, 141 Ariz. 331, 341, 686 P.2d 1301, 1311 (App. 1984); see also Duffield

v. C harleston 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);13

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 Houra ni’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 challen ge a decision maker’s impartiality by

“demonstrat[ing] that the mind of the decision maker is ‘irrevocably closed’ on the particular

issues being decided.” H

avasu 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, 7 0 1, 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 [decisio n maker] at a later adversary

hearing.” W

ithrow

, 421 U.S. at 5 5, 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 the14

decision maker learned from participating in the case. U nited States v. Grinnell Corp.

, 384

U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778, 793 (1966); s ee 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.” P avlik

, 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 canno t 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 Y aqub 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 in4 Carter Mayberry is the brother of Andrew Mayberry.

15 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 Calif o rnia

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

c ourt 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 F

inally, the court found that Dr. Carter Mayberry 4 should have recused hims elf

from “any v oice 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 on16

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. H avasu 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

questi ons 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