Melamed v. Cedars-Sinai Medical CenterMelamed v. Cedars-Sinai Medical Center
Greene, Broillet & Wheeler, Mark T. Quigley, Christian T.F. Nickerson; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Appellant.
Glaser Weil Fink Howard Avchen & Shapiro, Patricia L. Glaser, Joel N. Klevens; Nossman, Mitchell J. Green; Greines, Martin, Stein & Richland, Robin Meadow and Jeffrey E. Raskin for Defendants and Respondents.
JOHNSON, J.—Dr. Hooman Melamed (Plaintiff), a physician at Cedars-Sinai Medical Center, operated on a 12-year-old patient, causing complications requiring corrective surgery. The hospital suspended Plaintiff, who requested a peer review hearing challenging the suspension. Every level of administrative review upheld the suspension. Plaintiff did not seek mandamus review of these decisions. Plaintiff then filed suit against Cedars-Sinai Medical Center (Cedars), its medical staff, and the specific doctors involved in the summary suspension decision. The hospital filed an anti-SLAPP motion, contending that Plaintiff‘s claims arose out of a protected activity—the medical staff‘s peer review process—and that Plaintiff could not show a probability of success on the merits. The trial court granted the motion.
We affirm.
STANDARD OF REVIEW
Known as the anti-SLAPP1 statute,
Resolving an anti-SLAPP motion is a two-step process. First, the trial court must determine whether the defendant has made a prima facie showing that the challenged cause of action arises from protected activity. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822 [150 Cal.Rptr.3d 224].) If the defendant makes that showing, the trial court proceeds to the second step, determining whether the plaintiff has shown a probability of prevailing on the claim.3 (People ex rel. Fire Ins. Exchange, at p. 822.)
Subdivision (e) of
Courts have not precisely defined the boundaries of a cause of action “arising from” such protected activity. (
Whether the statute applies is determined from the “principal thrust or gravamen” of the plaintiff’s claim. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [6 Cal.Rptr.3d 494].) In making these determinations, the trial court “considers ‘the pleadings, and supporting and opposing affidavits.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].) We review the trial court’s ruling on the motion to strike independently under a de novo standard. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 [46 Cal.Rptr.3d 606, 139 P.3d 2].) We do not weigh credibility, but accept as true the evidence favorable to the plaintiff. We evaluate the defendant’s evidence only to determine whether it defeats the plaintiff’s evidence as a matter of law. (Id. at p. 326.)
FACTUAL BACKGROUND
A. The Surgery
On July 11, 2011, Plaintiff performed elective surgery on a 12-year-old patient for scoliosis. Plaintiff selected the operating table and also positioned the patient on the table. Due to the patient’s small size, however, Plaintiff ran into trouble during the surgery. The patient’s back was unstable and her
During the surgery, Plaintiff asked the nurses if he could get much bigger pads than what he had chosen but was told those pads were not available. He then asked a nurse to go under the operating table to stabilize the patient. Plaintiff also asked for a different kind of operating table but was told the specific kind of table he had requested midsurgery was not available.
Although he was unable to physically stabilize his patient, Plaintiff continued, and even expanded, the surgery. As a result, the operation lasted eight to 11 hours, rather than the normal three to five hours.
The surgery left the patient in far worse condition, and she now had an exaggerated inward curvature of the lower spine as well as abrasions on her face and body. Indeed, Plaintiff described the deformity as “clearly obvious” and needing correction within a few days.
B. Plaintiff’s Summary Suspension
On July 13, 2011, the hospital’s operating room manager (Kyung Jun) visited the patient to check on the abrasions caused by her prolonged surgery. The patient’s parents were present at the time. According to the parents, Plaintiff had told them that the patient was too small for the table he had used during the surgery, and that he needed a special table, which the hospital did not have. Jun reassured the parents that the hospital had the necessary equipment for the patient’s corrective surgery. Jun then spoke with Plaintiff to discuss what he needed for the upcoming surgery. Plaintiff confirmed that the hospital did in fact have the equipment he needed for the surgery. Jun e-mailed this information to Dr. William Brien that same day.6
On or about July 14, 2011, Dr. Brien initiated a peer review investigation into the surgery.7 The hospital expedited its investigation because the patient was still hospitalized and awaiting additional corrective surgery. Dr. Brien called Plaintiff about the case that day. Plaintiff confirmed he was responsible for choosing the wrong surgical table and for positioning the patient. He also7
According to Plaintiff’s description of the call, however, Dr. Brien began by immediately asking, “Are you going around the hospital and telling everyone that Cedars doesn’t have the capability to do this case?” Plaintiff says he told Dr. Brien that it had been difficult to stabilize the patient due to the inadequate table and pads, and that if the correct equipment had been available, the patient would have had a successful surgical outcome.
Dr. Brien consulted with the chairman of department of surgery, who concurred that Plaintiff posed an immediate and imminent risk to hospital patients, especially since Plaintiff had chosen to continue surgery on his 12-year-old patient even though he could not stabilize her body, and would have to perform corrective surgery on her within the next few days.
On July 15, 2011, Cedars summarily suspended Plaintiff’s medical staff privileges. As required, the hospital provided Plaintiff with a notice of action, advising Plaintiff of the charges and his hearing rights. The hospital based the summary suspension on the surgery, which raised “concerns regarding [Plaintiff’s] judgment, technical skill, and competency in managing scoliosis cases.” These concerns were based on his choice of the wrong table for the patient’s size and procedure, his failure to adequately stabilize the patient, and his continued attempts to manipulate the patient’s spine despite his inability to stabilize her. In addition, the notice stated, “the surgery lasted in excess of 11 hours, which apparently contributed to the pressure areas that the patient sustained.”
That same day, Plaintiff belatedly dictated his operative report.8 The report noted the difficulty Plaintiff had during the surgery. It also noted that Plaintiff had asked for a different table and pads during the surgery but was told they were not immediately available.
On July 21, 2011, Plaintiff’s attorney wrote the hospital, challenging the summary suspension. The letter did not criticize the hospital for failing to provide a different table and pads once Plaintiff realized he had chosen the wrong equipment. Instead, it stated that the table chosen by Plaintiff was in fact medically appropriate for this type of surgical procedure, noting that the surgeon who subsequently operated on the 12-year-old patient had used the same table. Notably, the letter did not contend that the hospital had suspended Plaintiff in retaliation for any complaints.
C. The Peer Review Hearing
On August 29, 2011, Plaintiff requested a peer review hearing to challenge his summary suspension. The hospital issued an amended notice of action, lifting the suspension as to adult patients. It maintained the suspension with respect to pediatric patients. The evidentiary portion of the peer review hearing lasted from September 2012 to November 2013. The hearing committee heard from 17 witnesses and had 60 exhibits at its disposal. As before, Plaintiff did not contend he had complained to the hospital about available equipment or patient safety. Nor did he contend that his summary suspension or his peer review hearing were retaliation for making that complaint.
The hearing committee issued its report on January 13, 2014. The committee found that the department of surgery had “acted reasonably in conducting an investigation of the case” due to the “unsatisfactory correction of the patient’s spinal curvature and the harm to the patient of a worsened postsurgical spinal curvature, pressure sores, an extended fusion, a prolonged hospitalization and a second surgery.”
Based on this evidence, the hearing committee found that Plaintiff’s summary suspension had been reasonable and warranted. However, the committee concluded that terminating Plaintiff’s clinical privileges to treat pediatric, adolescent and adult scoliosis was not reasonable or warranted.11
D. Plaintiff’s Subsequent Lawsuit
Plaintiff filed suit on July 11, 2014—exactly three years after the surgery. On July 21, 2014, Plaintiff filed a first amended complaint (FAC), the operative complaint in this case, against Cedars, its medical staff, and the specific doctors involved in the summary suspension decision.13 For the first time, Plaintiff alleged that the hospital’s actions were taken in retaliation after Plaintiff had complained about patient safety at the facility.
Centered on this allegation, the FAC presented seven causes of action: (1) violation of
The hospital filed an anti-SLAPP motion, contending that Plaintiff‘s claims arose out of a protected activity—the medical staff‘s peer review process—and that Plaintiff could not show a probability of success on the merits. According to the hospital, Plaintiff could not prevail on his claims because they were barred by the statute of limitations. Moreover, Plaintiff had failed to exhaust his judicial remedies and could not establish a prima facie case of retaliation.
THE TRIAL COURT’S RULING
As correctly noted by the trial court, an anti-SLAPP motion involves a two-step process: “(1) the defendant must establish that the challenged causes of action arise from protected activity; and (2) if the defendant makes this showing, the burden shifts to the plaintiff to establish a probability of success on the merits.”
With respect to the first step, the court found that “[a]ll of Plaintiff‘s causes of action are based on the allegations that he made reports of unsafe and
Citing Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198 [46 Cal.Rptr.3d 41, 138 P.3d 193] (Kibler), and Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 78 [138 Cal.Rptr.3d 446] (Nesson), the court found that Plaintiff‘s allegations all related and arose from the hospital’s peer review proceedings, which qualified as an “official proceeding authorized by law” and thus constituted protected activity under
A. Plaintiff’s First Claim
The statute expressly provides a rebuttable presumption that discriminatory action was taken by the health facility in retaliation against a member of the medical staff if responsible staff at the facility knew about the medical staff member’s actions and the discriminatory treatment occurred within 120 days of the medical staff member filing a grievance or complaint.15 (
Although the hospital had two channels for reporting safety and quality concerns, Plaintiff did not use either one. Instead, he “merely reported his surgical procedures and complications to the parents of his patient and in his post-operation surgical report.” While protected activity does not require a formal procedure, the court observed, “it at least requires a clear communication that puts the employer on notice as to what wrongful conduct it should investigate or correct.” Plaintiff‘s routine postsurgical reports did not meet this standard.
Even if Plaintiff‘s postsurgical reports did meet the statutory notice requirements, the court found he could not show a causal connection between this protected activity and the hospital’s allegedly retaliatory conduct. Although Plaintiff contended that the hospital initiated the peer review process based on his complaints, the court found this was not the case. Instead, the hospital began the process because of a complaint that a surgical manager made against Plaintiff. Indeed, Plaintiff’s postsurgical report was not transcribed, let alone received by the hospital until after Defendants had initiated the peer review process.16 Thus, in addition to failing to present a sufficiently detailed grievance regarding conditions at the hospital, Plaintiff could not establish a presumption of retaliation under
B. Plaintiff’s Remaining Claims
The trial court also held that Plaintiff did not show a reasonable probability that he could succeed on his remaining causes of action. Citing Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 469 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake), the court found that although the claims were expressly based on Plaintiff’s summary suspension and the hospital’s peer review process, Plaintiff had not attempted to overturn any aspect of the peer review determinations in a mandamus action.17 Consequently, these claims were barred for failure to exhaust judicial remedies.
We review the trial court’s ruling on the motion to strike de novo. (Flatley v. Mauro, supra, 39 Cal.4th 299, 325.) Thus, we must determine whether Defendants have made a prima facie showing that the challenged cause of action arises from the hospital’s protected activity. (People ex rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th 809, 822.) If Defendants have made that showing, we then proceed to the second step, determining whether Plaintiff has shown a probability of prevailing on his claims. (Ibid.)
A. The Hospital Engaged in Protected Activity
In Kibler, supra, 39 Cal.4th at page 198, our Supreme Court held that an anti-SLAPP motion was available to a hospital and its medical staff regarding their actions in a peer review proceeding where the disciplined physician later sued for interference with his practice of medicine. There, the hospital summarily suspended the physician’s staff privileges for two weeks, but reinstated them after he agreed to refrain from certain behaviors. (Id. at p. 196.) Kibler reasoned that a lawsuit arising from a peer review proceeding is subject to a special motion to strike because it qualifies as “‘any other official proceeding authorized by law’ pursuant to
In so holding, the court relied on three considerations. First, peer review proceedings are required of hospitals and heavily regulated. (Kibler, supra, 39 Cal.4th at pp. 199–200.) Second, because hospitals are required to report the results of peer review proceedings to the state medical board, peer review proceedings play a “significant role” in aiding the appropriate state licensing boards in their responsibility to regulate and discipline errant practitioners. (Id. at p. 200.) Third, “[a] hospital’s decisions resulting from peer review proceedings are subject to judicial review by administrative mandate. [Citation.] Thus, the Legislature has accorded a hospital’s peer review decisions a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate.”18 (Kibler, at p. 200.) As
The Court of Appeal reached a similar result in Nesson, supra, 204 Cal.App.4th 65 (revd. in part on other grounds in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655 [168 Cal.Rptr.3d 165, 318 P.3d 833] (Fahlen)). In Nesson, a radiologist sued a hospital for breach of contract, retaliation, and discrimination after the medical executive committee summarily suspended his medical staff privileges and the hospital terminated his contract to provide radiology services. (Nesson, at p. 72Id. at p. 75.) The trial court granted the hospital’s motion, and the radiologist appealed, contending that his summary suspension and subsequent termination did not constitute protected activity. (Id. at pp. 76, 78.)
The Court of Appeal affirmed the dismissal. The court characterized Kibler, supra, 39 Cal.4th 192 as holding that hospital peer review proceedings, including the discipline imposed upon a physician, constitute official proceedings authorized by law. (Nesson, supra, 204 Cal.App.4th at p. 78.) The gravamen of each cause of action asserted by Nesson was that the hospital “somehow acted wrongfully when it terminated the [radiology service agreement] because Nesson’s privileges were summarily suspended, as he was deemed by the [medical executive committee] to be a likely imminent danger to patient safety.” (Id. at p. 83.)
Plaintiff’s attempt to distinguish Kibler, supra, 39 Cal.4th 192 is unavailing. Plaintiff maintains that his claims, unlike the claims in Kibler, concern retaliation by Defendants in violation of a specific statute that precludes such conduct. However, “the first step of the anti-SLAPP analysis focuses on the acts the plaintiff alleges as the basis for his or her claims, not the motive or purpose the plaintiff attributes to the defendant’s acts; the first step considers whether those acts constitute acts in furtherance of the constitutional rights of free speech or petition.” (Collier v. Harris (2015) 240 Cal.App.4th 41, 53–54 [192 Cal.Rptr.3d 31].)
Indeed, “[a]ny ‘claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff’s [secondary] burden to provide a prima facie showing of the
Plaintiff’s attempt to distinguish Nesson, supra, 204 Cal.App.4th 65 is similarly unavailing. Although Fahlen, supra, 58 Cal.4th 655 did disapprove one portion of Nesson, this holding does not affect our first step analysis. Fahlen held that a “hospital staff physician who claims a hospital decision to restrict or terminate his or her staff privileges was an act in retaliation for his or her whistleblowing in furtherance of patient care and safety need not seek and obtain a mandamus petition to overturn the decision before filing a civil action under [Health and Safety Code]
Nevertheless, Plaintiff maintains “[t]his is not a situation where the plaintiff is claiming that a statement made during the process was defamatory; or that the process itself was not fair, as in Kibler[, supra, 39 Cal.4th 192.]” Nor is this “a situation where the claim arises out of the process itself, as in Nesson[, supra, 204 Cal.App.4th 65.]” In short, Plaintiff insists the decision to institute proceedings against Plaintiff and what occurred during those proceedings are legally distinct concepts. According to Plaintiff, the decision to institute proceedings is not a reviewable aspect of the peer review process.
However, here, as in Kibler, supra, 39 Cal.4th 192, Plaintiff’s causes of action arise out of the hospital’s peer review process in relation to a summary suspension. Moreover, the act of summarily suspending Plaintiff is a part of the peer review process, as set forth in the hospital’s bylaws, and as analyzed by the Supreme Court in Kibler.20 Indeed, Kibler expressly held that
B. Plaintiff Cannot Show a Probability of Success
Once a defendant makes a prima facie showing that the anti-SLAPP statute is applicable to the conduct or speech at issue, the burden shifts to the plaintiff to establish a “probability” that plaintiff will prevail on whatever claims are asserted against the defendant. (
As noted above, “[w]e consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.’” However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff . . . and evaluate the defendant’s evidence only to determine if it has
With respect to Plaintiff’s first claim, Defendants contend that the claim must fail because it was filed past the applicable two-year statute of limitations. Defendants also contend that even if a three-year statute of limitations applies here, which would render the claim timely, Plaintiff cannot establish a prima facie case for this claim and thus cannot prevail. With respect to Plaintiff’s remaining claims, Defendants contend that Plaintiff failed to exhaust his judicial remedies and thus cannot prevail on his remaining claims.
C. Plaintiff’s First Claim
1. Statute of Limitations
Plaintiff filed his FAC on July 21, 2014. This was nearly three years after the hospital suspended him and reported the suspension to the medical board as well as the National Practitioner Data Bank.
However, it actually appears that a one-year statute of limitations may be appropriate here.
Thus, even if the FAC does not address whether Plaintiff seeks to recover the mandatory civil penalty imposed by
2. Plaintiff Cannot Establish a Prima Facie Case
To establish a prima facie case under
With respect to the first element, the trial court found that although the hospital had two channels for reporting safety and quality concerns, Plaintiff did not use either one.24 Instead, he “merely reported his surgical procedures and complications to the parents of his patient and in his post-operation surgical report.” While reporting such concerns does not require a formal
Plaintiff’s other purported communications suffer from the same deficiency. Asking a nurse midsurgery if larger pads or a different operating table were available did not constitute whistleblowing. Plaintiff made his requests after realizing he had made a mistake in his operating room choices. Thus, Plaintiff‘s midsurgery request did not, and indeed could not, alert the hospital that it needed to investigate and correct a problem with the facility itself.
Plaintiff’s postsurgery conversation with the patient’s parents also proves inadequate. Statements must be made to “the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity” in order to be protected under the statute. (
Nevertheless, Plaintiff maintains that Dr. Brien later learned about the conversation, thus transforming it into a protected complaint. Dr. Brien received an e-mail informing him that Plaintiff had told the parents that the patient was too small for the table he had used during the surgery, and that he needed a special table, which the hospital did not have. Furthermore, according to the e-mail, Plaintiff later assured the hospital that it did in fact have the equipment needed for the patient’s upcoming surgery. Thus, rather than put his employer on notice as to what wrongful conduct it should investigate or correct, Plaintiff informed the hospital it did not have an equipment problem to remedy.26 This cannot suffice as a protected complaint.
Nor can Plaintiff’s postoperation report be deemed a protected complaint. An operative report must be documented within 24 hours for all patients following any inpatient or outpatient procedure. They are considered part of a patient’s medical record and are not accessed by the hospital’s leadership or administration “unless a specific question about quality, payment, or other health care operations has arisen.” They are not used to alert the hospital or its leadership about suspected unsafe patient conditions or quality of care concerns.
Furthermore, neither the content nor the timing of the report supports Plaintiff’s contention that it constituted a “grievance, complaint, or report”
The timing of the report also undercuts Plaintiff‘s claim. Although the surgery took place on July 11, 2011, the report was not dictated until July 14, 2011, and was not transcribed until July 15, 2011. Until an operative report is transcribed, it is not documented and is not available for viewing by anyone. By the time Plaintiff‘s report was transcribed, the hospital had already heard from other staff members concerned about the prolonged surgery. These concerns, rather than the belated and nonaccusatory operative report, triggered the inquiry that caused Plaintiff‘s summary suspension. Thus, the report cannot suffice as a protected complaint and the hospital’s decision to suspend Plaintiff cannot be deemed retaliatory.
3. Plaintiff’s Remaining Claims
In Westlake, supra, 17 Cal.3d 465, our Supreme Court held that the exhaustion of administrative remedies doctrine applies to hospital peer review proceedings. Thus, “before a doctor may initiate litigation challenging the propriety of a hospital’s denial or withdrawal of privileges, he must exhaust the available internal remedies afforded by the hospital.” (Id. at p. 469.)
Furthermore, “whenever a hospital, pursuant to a quasi-judicial proceeding, reaches a decision to deny staff privileges, an aggrieved doctor must first succeed in setting aside the quasi-judicial decision in a mandamus action before he may institute a tort action for damages.”28 (Westlake, supra, 17 Cal.3d at p. 469.) Once a court determines the hospital’s quasi-judicial decision to be improper in a mandate action, the “excluded doctor may proceed in tort against the hospital, its board or committee members or any others legally responsible for the denial of staff privileges.” (Ibid.)
In sum, before filing suit, Plaintiff had to exhaust both his administrative remedies (by undergoing the peer review process) and his judicial remedies (by seeking mandamus review of the peer review determinations).
Plaintiff repeatedly claims he emerged the victor in the peer review process and that judicial exhaustion was not required because “there were no rulings
Nevertheless, Plaintiff notes that the parties did not litigate whether the hospital’s decision to suspend Plaintiff was retaliatory. Indeed, they could not since Plaintiff failed to raise the allegation during the peer review process. Therefore, Plaintiff contends, judicial exhaustion has no application here. Westlake, supra, 17 Cal.3d 465 holds otherwise. (Id. at p. 484 [“so long as such a quasi-judicial decision is not set aside . . . the decision has the effect of establishing the propriety of the hospital’s action”].)
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
Chaney, Acting P. J., and Lui, J., concurred.
A petition for a rehearing was denied March 21, 2017, and appellant’s petition for review by the Supreme Court was granted June 21, 2017, S241146. On June 21, 2017, cause transferred to Court of Appeal, Second Appellate District, Division One, with directions. Opinion filed October 6, 2017, not for publication.