The California Supreme Court has ruled that while the path is narrow, a physician can avoid an “anti-SLAPP defense” when alleging that a hospital’s peer review decision was retaliatory.
The Supreme Court’s decision addresses some shortcomings that it saw when the case was seen by the California Court Appeal in 2017 (“Case of the Month,” August 2017). The case, Bonni v. St. Joseph Health System, involves an area of law that the Supreme Court said “has generated confusion in California’s courts” when applied to hospital peer review: A legal defense available to defendants in California 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.
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).
According to the facts relied on by the Supreme Court (all of which are subject to later proof), Dr. Aram Bonni, a surgeon, alleges that two hospitals and members of the medical staffs unlawfully retaliated against him for raising concerns about the performance of a robotic assistant that resulted in complications in his patients. Dr. Bonni alleges the retaliation for his complaints began with the suspension of his staff privileges and culminated in the termination of those privileges after peer review.
Dr. Bonni sued St. Joseph Health System, Mission Hospital Regional Medical Center, various affiliated entities, and eight individual physicians involved in the disciplinary process. He claims the hospitals unlawfully retaliated against him for raising patient safety concerns by summarily suspending him, reporting the suspensions to the state medical board, subjecting him to lengthy and humiliating peer review proceedings, defaming him, and ultimately terminating his hospital privileges.
The hospitals contend that any claim arising from the peer review process necessarily targets protected speech and therefore must be protected via anti-SLAPP protection.
But the Supreme Court would not go that far.
“While some of the forms of retaliation alleged in the complaint – including statements made during and in connection with peer review proceedings and disciplinary reports filed with official bodies – do qualify as protected activity,” the Court said, “the discipline imposed through the peer review process does not.”
Prior to reaching the Supreme Court, the trial court granted the defendants’ anti-SLAPP defense motion but that decision was overturned by the Court of Appeal, which focused on an alleged retaliatory motive as a reason to defeat the anti-SLAPP motion.
In its recent decision, however, the high court said that it did not agree with the Court of Appeal’s conclusion that allegations involving retaliatory or discriminatory motives were sufficient to defeat an anti-SLAPP motion. Instead, the Supreme Court explained, there must also be “various outward manifestations of a defendant’s alleged wrongful intent.”
The high court began its analysis by noting that California’s anti-SLAPP statute is “designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern.” The anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged allegations arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show that his or her claim has “at least minimal merit.” If the plaintiff cannot make such a showing, the court will strike the claim.
The high court’s decision in Bonni involved the first step of that process, i.e., determining whether Dr. Bonni’s claims arise from protected activity. In proceeding, the court noted that while the hospital’s motion seeks to strike Dr. Bonni’s retaliation claim in its entirety, the lawsuit actually alleged at least 19 distinct acts or courses of conduct allegedly undertaken in retaliation for Dr. Bonni’s complaints of unsafe conditions.
Stating that courts should analyze each claim for relief to determine whether the acts are protected, the Supreme Court reviewed the range of allegations made by Dr. Bonni, with the hospitals bearing the burden of showing that each allegation by Dr. Bonni rests on protected activity. In the end, high court found that while various communications made during the peer review process were protected from Dr. Bonni’s suit (including statutorily required reports to the medical board), the actual peer review decision was not.
The court noted that Dr. Bonni’s retaliation claims rested primarily on California Health and Safety Code Section 1278.5, which forbids health facilities from discriminating or retaliating against medical staff members and others for presenting complaints concerning the quality of patient care to other members of the medical staff, the facility, or other responsible entities. A claim under the statute requires “proof of discriminatory treatment” which may be shown “by any unfavorable changes in” a medical staff member’s “contract, employment, or privileges . . . or the threat of” such changes. The high court said that the operative complaint by Dr. Bonni alleges that the hospitals retaliated against him for raising patient care concerns by engaging in 16 principal adverse actions or categories of conduct.
According to the court, these allegations “supply the necessary element of retaliation claims” under the statute.
In doing so, however, the court pointed out that some of the alleged retaliatory actions underlying the complaint – including defamation and “character assassination” – describe the kind of speech activities that are protected by the anti-SLAPP statute. “Because peer review proceedings are official proceedings, any statements in connection with the issues considered in such proceedings – such as criticism of a doctor’s competence supplied to a body reviewing his or her hospital privileges – are protected activity under the anti-SLAPP law.”
The court said the same protections would apply against Dr. Bonni’s allegation that defendants subjected him to a “lengthy and humiliating peer review process.”
The court noted the difference, however, when Dr. Bonni’s complaint alleges “retaliation through various adverse actions – most prominently, the suspension and eventual termination” of his hospital privileges.
“The remaining issue is whether the adverse actions the hospitals took, based on their view that [Dr.] Bonni’s competence was suspect, are likewise shielded. We conclude that the anti-SLAPP statute does not extend that far.”
“At bottom, disciplining a doctor based on the view that the doctor’s skills are deficient is not the same as making a public statement to that effect,” the court explained. “The latter is, or may be, speech on a matter of public concern. The former is not speech at all.”
With the allegations of retaliation in the hospitals’ actual decisions not subject to an early anti-SLAPP defense (and thus subject of continuing contention), the Supreme Court sent the case back to the Court of Appeal to now consider whether Dr. Bonni met his “second-step burden” to show that his other claims related to communications have “at least minimal merit” to avoid being knocked out by the anti-SLAPP motions.
Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to GOwnby@CAPphysicians.com.