In a new case, a California Court of Appeal has held that conducting a formal peer review proceeding does not always provide a defense against a physician’s claim of retaliation.
At issue is a legal defense called an “anti-SLAPP” motion. “SLAPP” stands for “strategic lawsuit against public participation” and the motion allows defendants to seek an early dismissal of harassing lawsuits concerning free speech.
According to the allegations relied on by the Court of Appeal in Bonni v. St. Joseph Health System (all of which are subject to proof), Dr. Aram Bonni, a surgeon, complained to Mission Hospital in October 2009 that the hospital’s robotic surgery program was so understaffed that patient care was directly and adversely impacted. In his email to the vice president of medical affairs at Mission, Dr. Bonni wrote that at times he was unable to complete scheduled surgeries because of these issues. In January 2010, Dr. Bonni reported his safety concerns to the same Mission officer regarding a da Vinci robot malfunction that he experienced during a surgery he performed on December 22, 2009. The surgeon made further reports in 2010 of his concerns with the robotic program.
Dr. Bonni alleged that defendants Mission Hospital and St. Joseph Hospital of Orange retaliated against him for his complaints by summarily suspending his hospital privileges and conducting a peer review.
In a declaration filed with the court, Dr. Bonni stated: “Instead of addressing these issues, Mission referred the case to the Quality Review Committee for outside review of my performance of the December 22, 2009 surgery. I believe that this was done in retaliation for my reports regarding the inadequate robotics program and substandard hospital equipment and staff.”
Dr. Bonni based his retaliation lawsuit on California’s “whistleblower” statute, Health & Safety Code Section 1278.5, which prohibits health facilities from retaliating against a medical staff member over a grievance, complaint, or report to the facility or its medical staff.
The hospitals responded with an “anti-SLAPP” motion, arguing that all activities at issue in Dr. Bonni’s retaliation claim constituted protected peer review activities and the defendants’ actions “were motivated by concerns for patient safety because of plaintiff’s poor surgical technique.” (In his declaration, Dr. Bonni included a letter sent by an outside expert to Mission Hospital opining that during the surgery in question, Dr. Bonni did not deviate from the standard of care.)
The trial court granted the anti-SLAPP motion brought by the hospitals and Dr. Bonni appealed.
To win an anti-SLAPP motion, a defendant must make a threshold showing that the plaintiff’s claim arises from a protected activity (in this case, the peer review process). In this regard, Dr. Bonni argued a retaliatory decision to initiate the disciplinary actions was different from the otherwise protected peer review process.
In ruling for Dr. Bonni, the Court of Appeal explained: “Plainly, a defendant health facility may take all manner of adverse actions against an employee or medical staff member . . . without violating Section 1278.5, so long as the adverse action is not taken to discriminate or retaliate because the employee or staff member made a complaint to the facility.” But the court went on to explain that the basis for a retaliation claim can be a retaliatory purpose or motive for the adverse action, not the action itself:
“[M]erely because the peer review process serves an important public interest does not make it subject to the anti-SLAPP statute where the process is employed for a retaliatory purpose.”
In this case, Dr. Bonni’s allegation that the peer review process was initiated by the hospitals because he complained about conditions was sufficient to defeat the defendants’ anti-SLAPP motion – thus allowing him to proceed with his suit.
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com. The information in this publication should not be considered legal or medical advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.