In response to plaintiff's filing of his first amended complaint (FAC), defendants filed a special motion under Code of Civil Procedure section 425.16 (the anti-SLAPP statute)
The court granted defendants' anti-SLAPP motion as to both St. Joseph and Mission. The court determined, first, that defendants had met prong one
The court then proceeded to prong two of the anti-SLAPP test, which requires a plaintiff to show a probability of prevailing on his or her claim. (
We conclude plaintiff's retaliation claim under the whistleblower statute arose from defendants' alleged acts of retaliation against plaintiff because he complained about the robotic surgery facilities at the hospitals, and not from any written or oral statements made during the peer review process or otherwise. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion. This case is no exception. Accordingly, defendants' motion to strike fails on prong one of the anti-SLAPP test and we reverse the order granting defendants' motion.
FACTS
Plaintiff's FAC
Plaintiff's FAC alleged, inter alia, that defendants violated the whistleblower statute by retaliating against him for reporting "suspected unsafe and substandard conditions and services" at defendants' hospitals, including defendants' lack of committed assistants for robotic surgical procedures, and defendants' malfunctioning robot, camera, and bleeding-control devices. The FAC alleged defendants retaliated against plaintiff for his whistleblower complaints by, inter alia, suspending and ultimately denying him his medical staff privileges, after subjecting him to a lengthy and humiliating peer review process.
Defendants ' Anti-SLAPP Motion
In response, defendants filed an anti-SLAPP motion to strike the FAC's retaliation cause of action. Defendants argued: "Plaintiff ... exhibited consistent patterns of poor judgment and surgical techniques that caused serious complications-and in some cases near death-or his patients.... In light of the imminent danger to future patients of these serious and life-threatening behaviors, Defendants summarily suspended Plaintiff and thereafter conducted peer review proceedings according to California law and the Hospitals' bylaws, to ensure patient safety." Defendants further argued that (1) plaintiff's retaliation claim arose from defendants' peer review processes;
Defense counsel filed a declaration in support of defendants' anti-SLAPP motion. Exhibit 1 to counsel's declaration was the decision of St. Joseph's judicial review hearing committee, which stated that plaintiff experienced complications in three of the first six robotic procedures he performed at St. Joseph. Exhibit 3 to counsel's declaration included Mission's appellate committee report, which stated that the "focused review process was triggered by a December, 2009 case in which [plaintiff] perforated the patient's mesentery and bowel tissue five ... times. The patient suffered various complications following the procedure, required a second surgery to repair the perforations, ... and endured a protracted hospital stay."
Plaintiff's Opposition
Plaintiff opposed defendants' anti-SLAPP motion, arguing defendants failed to show his claim was a SLAPP, and alternatively,
In plaintiff's declaration supporting his opposition, he declared, inter alia: "In or about March of 2009, I became aware of numerous patient safety issues involving the da Vinci robot ... robotic surgery program at Mission Hospital. Specifically, the robotic surgery program at Mission was grossly understaffed and underfunded, which had a direct and adverse impact on patient safety. At times, I was unable to complete scheduled surgeries due to inadequate staffing. On October 19, 2009, I reported these patient safety concerns to Dennis Haghighat M.D., vice president of medical affairs at Mission. I requested that these issues be corrected in order to improve the safety of patients at Mission and St. Joseph. A true and correct copy of this report is attached hereto as Exhibit 2. Unfortunately, Mission and St. Joseph did nothing to correct or address these patient safety concerns."
Exhibit 2 is plaintiff's October 19, 2009 e-mail message to Haghighat, in which plaintiff stated he had been forced to cancel a few robotic surgeries due to the unavailability of an assistant surgeon and asking if Mission could allocate a scrub technician to serve as the assistant. The subject line of
Plaintiff's declaration continued: "On December 22, 2009, I performed a robotic surgical procedure at Mission on an elderly woman.... During this surgery, the da Vinci robot malfunctioned which caused serious patient safety issues, including complications during the surgery, as well as a 42 minute delay. Specifically, the 3D Camera on the robot malfunctioned. Due to inadequate staffing and training, the Mission Staff had extreme difficulties correcting the problem with the robot. After some delay, the Mission Staff finally located the replacement camera and brought it in. Unfortunately, the Mission Staff were unfamiliar with [the] existence and location of that camera. Following the issue with the camera, the Monopolar scissors, as well as the cautery, on the robot malfunctioned. This is the instrument that is used to cauterize and cut tissues. This instrument was later recalled by Intuitive Surgical Inc., the manufacturer of the da Vinci robot.... [¶] ... Once again, I reported these patient safety concerns regarding the malfunctioning da Vinci robot to Dennis Haghighat, M.D on January 11, 2010.... A true and correct copy of this report is attached hereto as Exhibit 3. 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."
Exhibit 3 is a string of e-mail messages, starting with plaintiff's December 22, 2009 e-mail statement to an alleged da Vinci representative that the camera, port assistant, and other problems had consumed 42 minutes. The da Vinci representative acknowledged "the camera had some issues," but also stated "no other robotically trained surgeons at Mission [have had] this many repeated issues on every case." Plaintiff then e-mailed Haghighat that "[w]e need some people that are well trained robotically to be in the room to help trouble shoot the problems that are encountered" and that "losing about 42 minutes to side issues during an already long and winding surgery could and should be avoided."
Exhibit 4 is plaintiff's letter to Nolan, explaining the circumstances surrounding the December 22, 2009 robotic surgery and reciting the above six patient safety concerns. The letter is undated, but allegedly sent in March 2010.
Plaintiff's declaration continued: "On August 20, 2010, I reported my concerns regarding the malfunctioning robot again to Defendant Dr. Juan Velez, Chief of Obstetrics/Gynecology at St. Joseph. On September 15, 2010 I reported these same concerns to Defendant Randy Fiorentino at St. Joseph. As outlined in further detail below, I also reported these patient concerns yet again to Mission on October 1, 2010 and November 11, 2010. See Exhibits 5 and 6." (Italics added.)
Exhibit 5 is plaintiff's October 1, 2010 letter to Thomas Bailey, M.D., chief of Mission's department of women and infants, attaching a copy of plaintiff's March 2010 letter to Nolan and a copy of an October 1, 2010 letter to Bailey from Dr. Michael Hibner of the Creighton University School of Medicine, opining that "during the December 2[2], 2009 surgery," plaintiff "did not deviate from the standard of care." (Italics added.)
Exhibit 6 consists of plaintiff's November 11, 2010 e-mail communications with Jane Kessinger of Mission's medical staff office, attaching copies of documents for purposes of plaintiff's peer review process.
Plaintiff's declaration continued: "The December 22, 2009 case ... was reviewed by Mission's own expert Dr. Moses, who determined that my performance during this surgery was within the standard of care.... Dr. Hibner also reviewed my performance during this surgery, and found that I was within the standard of care. Dr. Hibner is double board certified in Urogynecology and minimally invasive surgery. He teaches robotic surgery to advanced pelvic surgeons, and has performed thousands of robotic surgeries.... Further, and perhaps most telling, on March 22, 2010, Mission Director of Medical Staff Services Denise Rollins reported to St. Joseph that I was a member in good standing at Mission, that there were no disciplinary actions against me, and that there were no significant issues with respect to me or my practice at Mission."
Defendants ' Reply
In their reply memorandum, defendants argued that all activities at issue in plaintiff's retaliation claim constituted protected peer review activities at
The Court 's Ruling
The court granted defendants' anti-SLAPP motion as to both Mission and St. Joseph. Applying the first prong of the anti-SLAPP test, the court determined that the gravamen of plaintiff's retaliation claim was based on defendants' protected hospital peer review activities.
Proceeding to the second prong of the anti-SLAPP statute, the court ruled that the plaintiff had failed to meet his burden to demonstrate a probability of prevailing on his retaliation claim.
DISCUSSION
General Principles of Applicable Law
In evaluating an anti-SLAPP motion, the court conducts a potentially two-step inquiry. ( Equilon , supra ,
Second-if the defendant meets its burden of showing all or part of its activity was protected-then the court proceeds to the next step of the
An appellate court reviews a trial court's ruling on an anti-SLAPP motion de novo, applying the legal principles and two-prong test discussed above. ( Schaffer v. City and County of San Francisco (2008)
Plaintiff's Retaliation Claim Does Not Arise From Protected Activity
We turn then to the first prong of the anti-SLAPP test, i.e., whether plaintiff's retaliation claim arose from protected activity under the anti-SLAPP statute. Plaintiff concedes he alleged retaliatory acts by defendants "that arose during [hospital] peer review proceedings." ( Kibler , supra ,
Recently, in Park v. Board of Trustees of California State University (2017)
In Park , the high court examined the nexus that must be shown "between a challenged claim and the defendant's protected activity," and held that "a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity."
Thus, the Park court made clear that in evaluating whether plaintiff's claim is a SLAPP, it is not sufficient merely to determine whether plaintiff has alleged activity protected by the statute. The alleged protected activity must also form the basis for plaintiff's claim. The Park court counseled that "in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." ( Park , supra ,
Accordingly, as suggested by Park , we first consider the elements of a claim under the whistleblower statute at issue here, Health and Safety Code, section 1278.5. As relevant to our inquiry, it provides, "No health facility shall discriminate or retaliate, in any manner, against any ... member of the medical staff ... of the health facility because that person has" "[p]resented a grievance, complaint, or report to the facility ... or the medical staff of the facility...." ( Health & Saf. Code, § 1278.5, subd. (b)(1)(A).) Plainly, a defendant health facility may take all manner of adverse actions against an employee or medical staff member (including protected activities defined in subdivision (e) of the anti-SLAPP statute) without violating section 1278.5, so long as the adverse action is not taken to discriminate or retaliate because
In defendant's letter brief, they argue that summary suspensions and terminations of a physician's medical privileges are protected activities under prong one of the anti-SLAPP test. Defendants attempt to distinguish the hospital peer review process from the "deliberative process involving a
But the defendant in Park , supra ,
Here, defendants' motion to strike was premised on their somewhat ipse dixit notion that because of the "critical public interest in patient safety," and "the courts' overriding goal of 'protect[ing] the health and welfare of the people of California,' " the peer review decision, and the statements leading up to that decision are "an inherently communicative process based on free speech and petitioning rights," and "should thus be 'subject to a special motion to strike.' " But merely because a process is communicative does not
The Park decision cannot be easily distinguished. Although Park involved a university tenure process conducted in an allegedly discriminatory fashion, its rationale translates easily to the allegedly retaliatory peer review process at issue here. Here is what the court said in Park , "The elements of Park's claim ... depend not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible. The tenure decision may have been communicated orally or in writing, but that communication does not convert Park's suit to one arising from such speech. The dean's alleged comments may supply evidence of animus, but that does not convert the statements themselves into the basis for liability." ( Park , supra ,
The high court's analysis in Park relied in part on the recent case of Nam v. Regents of University of California (2016)
The Nam court itself was quite direct in announcing its decision: "[W]e conclude the anti-SLAPP statute was not intended to allow an employer to use a protected activity as the means to discriminate or retaliate and thereafter capitalize on the subterfuge by bringing an anti-SLAPP motion to strike the complaint. In that case, the conduct giving rise to the claim is discrimination and does not arise from the exercise of free speech or petition." ( Nam , supra , 1 Cal.App.5th at pp. 1190-1191,
We agree with the Nam court's observation. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.
Accordingly, we conclude that defendants' alleged retaliatory motive in suspending plaintiff's staff privileges and subjecting him to a lengthy and allegedly abusive peer review proceeding is the basis on which liability is asserted. The alleged liability does not arise from the statements made during those proceedings. The court erred in ruling otherwise.
The order granting defendants' anti-SLAPP motion is reversed. Plaintiff shall recover his costs on appeal.
WE CONCUR:
O'LEARY, P.J.
MOORE, J.
Notes
Plaintiff's operative complaint also named as defendants some other entities and individuals related to Mission and/or St. Joseph.
The whistleblower statute prohibits health facilities from retaliating against, inter alia, a member of the medical staff of the health facility because that person has presented a grievance, complaint, or report to the facility or its medical staff. (Health & Saf. Code, § 1278.5, subd. (b)(1)(A).)
The acronym SLAPP (strategic lawsuit against public participation) refers to a harassing lawsuit brought to challenge the exercise of constitutionally protected free speech rights. (Kibler v. Northern Inyo County Local Hospital Dist. (2006)
Defendants further argued, as to St. Joseph, that plaintiff had signed a release. Plaintiff's declaration supporting his opposition to defendants' anti-SLAPP motion contended St. Joseph breached the "settlement agreement."
Park involved the denial of tenure to "a tenure-track assistant professor," not a university president. (Park,