I
INTRODUCTION
Plаintiff John Nesson, a radiologist, sued defendant Northern Inyo County Local Hospital District (Hospital) after the medical executive committee (MEC) summarily suspended his medical staff privileges and the Hospital terminated his contract to provide radiology services. Nesson’s complaint seeks damages for breach of contract, retaliation, and discrimination. Nesson appeals from an order and judgment granting the Hospital’s special antiSLAPP motion to strike. (Code Civ. Proc., § 425.16.)
Nesson contends his claims against the Hospital are not subject to an anti-SLAPP motion. Additionally and in the alternative, he maintains he has established the probable validity of his claims. Based on our independent review, we conclude the trial court properly granted the anti-SLAPP motion.
II
FACTUAL AND PROCEDURAL BACKGROUND
We derive the statement of the facts frоm the complaint and from the evidence submitted in support of and against the anti-SLAPP motion. Many of the operative facts are essentially undisputed except where noted.
A. The Radiology Services Agreement
Nesson has been a licensed California physician since 1966 and a practicing radiologist since 1973.
On July 1, 2007, Nesson and the Hospital entered into the department of radiology service agreement (Agreement), providing that Nesson would “oversee, operate and administer the [Radiology] Department in accordance with applicable law.” The Agreement was for a one-month term to be extended on a monthly basis and was terminable on 30 days’ notice. The Agreement was in effect until February 19, 2009, when it was terminated by the Hospital.
Under the Agreement, Nesson was required to maintain membership on the Hospital’s activе medical staff with appropriate privileges to practice medicine at the Hospital. Nesson was responsible for the clinical competence and performance of all the licensed and certified personnel working in the clinic and “the operation and administration of the Department with respect to the provision of Radiology and related services for the care of the Hospital’s
The Agreement also specifies that Nesson was “responsible to see that all procedures designated above, and other procedures requiring a Radiologic license, shall be performed only under the supervision of a licensed and qualified Radiologist.” Nesson could also employ another licensed radiologist with clinical privileges to act as his substitute, a “locum tenens.”
Section 4.02 of the Agreement provides that “[i]n the performance of the work, duties and obligations under the Agreement, it is mutually understood and agreed that [Nesson] is at all times acting and performing as an independent contractor practicing his profession of medicine and specializing in Radiology.” Nesson was compensated directly by patients, not by the Hospital.
In addition to radiology services, the Hospital paid Nesson $2,000 per month, later increased to $2,500, for performing related administrative, supervisory, and teaching services.
B. The Events of 2008 and 2009
In 2008, Nesson complained about the quality of transcription services and its impact upon patient safety. In June 2008, two of the transcriptionists, Allison Pennington and Alison Murray, responded by filing grievances, which were denied: “[Y]ou may be experiencing periods of anxiety because of the criticism and alleged slander that may have taken place, under any definition, what transpired does not constitute a hostile work environment.” Nesson claims that, in December 2008, the Hospital requested he withdraw his complaints about patient safety and apologize to the transcriptionists.
In February 2009, the MFC voted to approve a summary suspension of Nesson’s medical staff and clinical privileges, citing “recent incidents of
The MEC recommended Nesson undergo a neuropsychiatric evaluation and a clinical competency evaluation. If Nesson requested a leave of absence while undergoing the evaluations, the suspension would be lifted. The MEC also indicated it would continue its investigation of Nesson’s behavior and clinical practice “until the [MEC’s] corrective action investigation ... is completed.”
On February 19, 2009, the Hospital deemed it “impossible for you to comply with the requirements of the contract without Medical Staff privileges” and terminated the Agreement. Nesson’s lawyer objected to the summary suspension on February 24, 2009.
On February 25, 2009, the Hospital sent a health facility/peer review reporting form to the Medical Board of California, as it was required to do pursuant to Business and Professions Code section 805 (section 805), informing the board of Nesson’s summary suspension.
On March 2, 2009, the Hospital informed Nesson in writing of the fact the section 805 report had been made and, pursuant to the Bylaws, gave notice of his right to request a hearing to challenge the suspension. Nesson was also notified that his attorney’s letter of February 24, 2009, did not comply with the requirements of the Bylaws for requesting a hearing. Nesson was further notified if he failed to request a hearing in the manner and time specified in the Bylaws, he would be deemed to have waived his right to any hearing, appeal, or other legal review of the corrective action.
On March 6, 2009, Nesson requested and was granted a voluntary leave of absence for 180 days. In view of the leave of absence, on March 11, 2009, the MEC lifted the summary suspension. The MEC’s correspondence with Nesson included a copy of section 6.14.1 of the Bylaws which provides, in part, that “[d]uring the period of the leave, the Member shall not exercise Privileges at the Hospital, and membership rights and responsibilities shall be inactive . . . .” Nesson was also specifically informed that if he ever wished to request reinstatement, he “will be expected to document compliance with the evaluations specified” in connection with the summary suspension. Neither Nesson, nor his lawyer at the time, requested a hearing to challenge his summary suspension within the 30-day deadline set forth in the Bylaws.
On or about April 29, 2009, Nesson submitted an application for reappointment to the medical staff. However, he did not provide documentation that he had completed the evaluations requested by the MEC when it suspended him. Therefore, his application for reappointment was denied on June 11, 2009.
In the meantime, the Medical Board of California conducted an investigation regarding the alleged violations of section 805. After the Agreement was terminated the state board closed the investigation on May 5, 2010.
C. The Complaint
After Nesson was denied reappointment, he filed a civil complaint for damages, asserting causes of action for (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of Health and Safety Code section 1278.5; (4) violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.); and (5) violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
In summary, the grounds for Nesson’s claims were that the Hospital had breached the Agreement by not giving him 30 days’ notice of termination, had retaliated against him for his complaints about patient safety, and had discriminated against him for a perceived mental disability or mediсal condition.
D. The Anti-SLAPP Motion
The Hospital filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16, arguing that the complaint targeted a protected activity—the suspension of Nesson’s medical privileges—and Nesson could not demonstrate the probable validity of his claims because he did not exhaust his administrative or judicial remedies.
Nesson filed a motion for leave to conduct limited discovery under Code of Civil Procedure section 425.16, subdivision (g). The trial court granted Nesson limited discovery involving the Bylaws, rules, and regulations; the radiology department’s rules and regulations; and information concerning
The trial court granted the Hospital’s special motion to strike, finding that (1) “all causes of action arise from alleged actions and conduct by the Defendant during medical peer review that qualify as official proceedings,” citing Kibler v. Northern Inyo County Local Hospital Dist. (2006)
Ill
THE ANTI-SLAPP STATUTE
Under Code of Civil Procedure section 425.16, “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech . . . shall be subjеct to a special motion to strike . . . .” (§ 425.16, subd. (b)(1).) “A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Briggs v. Eden Council for Hope & Opportunity (1999)
The anti-SLAPP statute establishes a two-step procedure whereby the trial court evaluates the merits of a plaintiff’s cause of action, using a summary-judgment-like procedure, at an early stage of the litigation. (Flatley v. Mauro, supra,
If the trial court determines that the defendant has met his initial burden, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing on the merits of his cause of action. (Equilon Enterprises v. Consumer Cause, Inc., supra,
The role of the trial court is not to weigh the credibility or comparative strength of the parties’ evidence. (Wilson v. Parker, Covert & Chidester, supra,
We independently review orders granting or denying a motion to strike under Code of Civil Procedure section 425.16. (Flatley v. Mauro, supra, 39 Cal.4th at p. 325; Gilbert v. Sykes, supra,
Code of Civil Procedure section 425.16, subdivision (e)(2), provides that speech protected by the anti-SLAPP statute includes “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” Certain types of proceedings may be treated as “other official proceeding authorized by law” under Code of Civil Procedure section 425.16, subdivision (e)(1), including hospital peer review
Additionally, where the basis for the plaintiff’s suit arisеs from peer review action, he will be barred from bringing a civil action for damages unless he has fully exhausted his administrative and judicial remedies. (Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d at pp. 476-477.) A plaintiff who has failed to exhaust his administrative and judicial remedies therefore cannot prove a probability of prevailing on any claim, irrespective of how it is labeled.
Where the anti-SLAPP statute applies and the plaintiff fails to establish that he has a probability of prevailing, the claims subject to the anti-SLAPP statute “shall be stricken.” (Simpson Strong-Tie Co., Inc. v. Gore (2010)
IV
PROTECTED ACTIVITY
Nesson argues that his summary suspension and the subsequent termination of the Agreement did not constitute protected anti-SLAPP activity because the Hospital was not involved in the peer review process or his summary suspension. Furthermore, Nesson asserts his claims are based on the termination of the Agreement not on his summary suspension.
As already noted, the California Supreme Court has held that lawsuits arising from a challenge to hospital peer review activities, including the discipline imposed upon a physician, constitute “ ‘official proceeding^] authorized by law.’ ” (Kibler, supra,
The Business and Professions Code sets out a comprehensive scheme that incorporates the peer review process into the overall process for the licensing of California physicians. (Kibler, supra,
An acute care hospital must have “an organized medical staff responsible to the governing body for the adequacy and quality of the care rendered to patients.” (Cal. Code Regs., tit. 22, § 70703, subd. (a).) The medical staff acts in peer review through its governing body, the MEC. A hospital’s medical staff bylaws govern its peer review proceedings, subject to the requirements of the peer review statutes. (Payne v. Anaheim Memorial Medical Center, Inc. (2005)
Here the Hospital’s medical staff Bylaws specify in detail the procedural rights afforded in peer review matters, including the authority of the Hospital’s district board, summarily to “restrict or suspend a Practitioner’s Medical Staff membership or privileges (i.e., take ‘Summary Action’) whenever a Practitioner’s conduct is such that failure to take action may rеsult in an imminent danger to the health of any individual.” A physician under summary suspension is given notice of the adverse action and his right to a hearing before an appointed hearing committee. A party may appeal the decision of that hearing committee. The final adverse action is taken by the Hospital’s district board, not the MEC. A physician must exhaust all applicable hearing, appeal or other remedies afforded by the Bylaws before initiating legal action. A hospital’s decision resulting from peer review is subject to judicial review by administrative mandate under Code of Civil Procedure section 1094.5. (Bus. & Prof. Code, § 809.8; see also Kumar v. National Medical Enterprises, Inc. (1990)
“The governing bodies of acute care hospitals have a legitimate function in the peer review process. In all peer review matters, the governing body shall give great weight to the actions of peer review bodies . . . .” (Bus. & Prof. Code, § 809.05, subd. (a); see also Mileikowsky v. West Hills Hospital & Medical Center (2009)
As noted above, the Hospital’s medical staff Bylaws specifically identify the district board as a peer review body under the Bylaws. It further affords the district board the right to act immediately and summarily to restrict or suspend a practitioner’s medical staff membership or privileges (i.e., take “Summary Action”) whenever a practitioner’s conduct is such that failure to take action may result in an imminent danger to the health of any individual.
The Hospital’s determination of the factual issues as to the necessity of peer review actions is entitled to deference and it should not be faulted for considering patient safety as its principal obligation. (Medical Staff of Sharp Memorial Hospital v. Superior Court, supra,
Here, the Hospital gave deference to the MEC’s determination that Nesson’s erratiс behavior and substandard and dangerous patient care could result in an imminent danger to patients and warranted summary suspension. The Hospital explained in its February 19, 2009, correspondence to Nesson that as a consequence of the continued summary suspension of his membership and privileges, it had become impossible for Nesson to comply with the Agreement and it was subject to termination pursuant to paragraph 4.06(a)! of the Agreement.
The Hospital’s governing district board took the additional step of determining that Nesson, given his suspended status, could not perform under the Agreement and terminated it. The Hospital terminated the Agreement in order to protect its patients, staff and the public, given the findings of the MEC, and as a necessary result of the corrective action being taken. The Hospital’s action clearly falls within the “other matters critical to the hospital’s functioning” that constitutes peer review. (Kibler, supra,
The trial court properly interpreted the Agreement as supporting the Hospital’s termination based on the failure to maintain membership and privileges. As the trial court determined, the Hospital’s action in terminating the Agreement was “inextricably intertwined” with the summary suspension and corrective action being taken against Nesson. Nesson’s duties pursuant to the Agreement are “inextricably intertwined” with the practice of medicine. Accordingly, the Hospital’s district board acted as a peer review body, in accordance with its medical staff Bylaws, in terminating the Agreement.
The Hospital was also authorized to impose its own disposition, based upon the MEC’s finding. The Court of Appeal in Ellison v. Sequoia Health Services upheld the right of the governing board to apply its independent judgment regarding the disposition of corrective action, after giving due weight to the factual findings of the peer review committee. (Ellison v. Sequoia Health Services, supra,
“[T]he overriding goal of thе state-mandated peer review process is protection of the public and . . . while important, physicians’ due process rights are subordinate to the needs of public safety.” (Medical Staff of Sharp Memorial Hospital v. Superior Court, supra, 121 Cal.App.4th at pp. 181-182.) A physician facing peer review is not entitled to the same due process protections as a criminal defendant. (Ibid.) The question, rather, is whether the procedure leading to the revocation of privileges was fair. (Ellison v. Sequoia Health Services, supra,
Even a physician’s cooperation with corrective action imposed by a hospital does not, per se, prevent the hospital from acting to protect patients and does not undermine the medical staff’s determination that the physician was an imminent threat, as the public protеction which is the subject of Business and Professions Code section 809.5 “cannot be subordinated to the rehabilitative needs of an individual physician.” (Medical Staff of Sharp Memorial Hospital v. Superior Court, supra,
Nesson refused to cooperate with the investigation undertaken by the medical staff. He refused to submit to the requested evaluations, even when he attempted to obtain reappointment. He took a leave of absence and actively thwarted any determination as to whether he should have continued in his position as the medical director of radiology. He failed to challenge the Hospital’s determination through the administrative and judicial peer review process.
Furthermore, failure to terminate Nesson’s contract could have exposed the hospital to liability under Elam v. College Park Hospital (1982)
As in Elam, the Hospital was ultimately responsible for the competency of its medical director of radiology. As a suspended physician, Nesson could not discharge the duties and responsibilities of medical director of radiology on his own or by using substitute radiologists. Accordingly, the Hospital had the duty to terminate the Agreement.
Finally, this court must look to the essence of the contested conduct in order to determine if the suit arises from protected activity: “[A] plaintiff
The gravamen of eаch cause of action asserted by Nesson is that the Hospital somehow acted wrongfully when it terminated the Agreement because Nesson’s privileges were summarily suspended, as he was deemed by the MEC to be a likely imminent danger to patient safety.
With regard to the contract claims, Nesson argues that he could have employed other radiologists to perform the Agreement and that he did not receive 30 days’ notice of termination. But the fundamental premise of Nesson’s claims is the Hospital could not terminate him based on the summary suspension. The first prong of analysis “under the anti-SLAPP statute focuses on the acts on which liability is based, not the gestalt of the cause of action . . . .” (Wallace v. McCubbin (2011)
Nesson’s retaliation and discrimination claims are also founded on his contention that he could not be terminated based on the summary suspension. With regard to the FEHA and Unruh causes of action, Nesson maintains the Hospital terminated him for a perceived disability and refused to offer him accommodations. But the anti-SLAPP statute applies to claims made in connection with the protected activity, regardless of the defendant’s motive, or the motive the plaintiff may be ascribing to the defendant’s conduct. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89-90.) The only alleged evidence or argument in support of his claim that the Hospital perceived Nesson as disabled are the facts that the Hospital received the written special notice of summary action and the notice of medical executive committee action suspension. Nesson contends, “[b]ased on the above letters and a report from the MEC, the Hospital decided to terminate Nesson’s Service Agreement.” These letters and any alleged “report” are part of the peer review process.
V
PROBABILITY OF PREVAILING
Once the Hospital establishes its conduct warrants anti-SLAPP protection, the burden shifts to Nesson to produce evidence to establish a probability of prevailing on the merits of his claims. (Equilon Enterprises v. Consumer Cause, Inc., supra,
The defendant need not “make a preemptive factual showing to negatе what [the plaintiff] might present to satisfy” his anti-SLAPP burden of establishing a probability of prevailing. (Wong v. Jing (2010)
Courts have consistently required that any dispute over a doctor’s competence to continue practicing medicine be submitted for a peer review determination before the dispute may proceed in court. (See, e.g., Lee v. Blue Shield of California (2007)
Westlake Community Hosp. v. Superior Court, supra,
Only after the physician has obtained a Code of Civil Procedure section 1094.5 writ of mandamus setting aside the hospital’s discipline of him, may the aggrieved physician file a civil lawsuit asserting state law claims against the hospital and its associated defendants: “[A]n exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision . . . .” (Westlake Community Hosp. v. Superior Court, supra,
Furthermore, “by insisting upon exhaustion . . . courts accord recognition to the ‘expertise’ of the organization’s quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiff’s claim in the first instance,” and at a minimum promote “judicial efficiency by unearthing the relevant evidence and by providing a record which the court may review.” (Westlake Community Hosp. v. Superior Court, supra,
Nesson claims that he could not have contested the termination of the Agreement in the peer review proceeding because “the administrative process is only available to challenge the suspension of Nesson’s medical privileges.” This argument misses the point because the issues are inextricably intertwined. In any event, Nesson abandoned the peer review process. He requested a leave of absence. He did not request a timely hearing. Although Nesson later sought reinstatement, he refused to provide the required neuropsychiatric and clinical competency evaluations.
Had Nesson pursued and completed his internal administrative remedies, leading to a lifting of the summаry suspension, he could have sought reinstatement of the contract. This would have cured Nesson’s material breach of the Agreement when he was suspended.
A physician retains the right (and the duty) to fully exhaust his administrative remedies and appeals at the hospital. (Eight Unnamed Physicians v. Medical Executive Com., supra, 150 Cal.App.4th at
Even if Nesson had exhausted his remedies, he could not establish the probability of prevailing. The trial court properly interpreted the Agreement, in which Nesson’s obligations necessitated that he be a member of the medical staff, in good standing. In an effort to distinguish this action from peer review, Nesson attempts to parse out duties under the Agreement claiming he was not required to practice medicine personally but could delegate his duties to other radiologists. But the Agreement is premised on the condition that, at all times, Nesson would be a good standing member of the medical staff, capable of exercising his clinical privileges and utilizing his clinical expertise in his duty to “oversee, operate and administer the [Radiology] Department.” By virtue of his actions which led to his summary suspension, Nesson failed to fulfill his obligation to maintain active staff membership and privileges during the term of the Agreement.
Nesson also argues that while summarily suspended he could still have performed “administrative services” under the Agreement. However, his duties and responsibilities under the Agreement are not clearly segregated between clinical and nonclinically related functions. Nesson’s Agreement is governed by section 10 of the Bylaws which outlines the services and service chiefs. Radiology is clearly designated under this section. Medical staff Bylaws section 10 requires “Each Service Chief shall be a Member of the Active Staff. . . .” Section 2.7 of the medical staff Bylaws states, “A Contract Practitioner may provide speсified clinical services authorized pursuant to the applicable specified clinical services contract only if the Contract Practitioner is a Medical Staff member . . . .” The Agreement does not distinguish “Administrative Services” from “Radiology Services.” In fact, these obligations could only be reasonably interpreted as being performed by a radiologist in good standing on the medical staff of the Hospital.
Nesson argues he “was not required to maintain medical privileges to perform the Administrative Services, as that did not involve treating patients.” But he does not identify specific duties which do not somehow affect patient safety or which are not founded on the understanding they would be performed by a radiologist in good standing on the medical staff. The “Operational and Administrative Services” section in the Agreement is clearly founded upon the express understanding that Nesson would be performing these duties as a physician licensed in radiology and a good standing member of the medical staff.
Nesson’s duties under the Agreement were inextricably intertwined with his capacity as a member in good standing of the medical staff with clinical privileges in Radiology. Based on the determination of the MEC that Nesson posed an imminent danger to patients, the hospital was duty bound, by its responsibilities to its staff and patients, to terminate the Agreement. (Elam v. College Park Hospital, supra,
As a suspended physician, Nesson could not possibly have fulfilled the enumerated obligations under the Agreement. In an action upon a contract, the plaintiff must allege and prove either performance or a valid excuse for nonperformance. (Estate of Warner (1910)
Tort damages are inapplicable in ordinary contract actions. (Freeman & Mills, Inc. v. Belcher Oil Co. (1995)
Nesson’s claim for retaliation under Health and Safety Code section 1278.5 also fails because the evidence shows the summary suspension was unrelated to the complaints he offered about transcriptions and patient safety made more than eight months before the agreement was terminated.
Nesson is also unable to state a claim for violation of the Unruh Civil Rights Act, which protects the rights of individuals “no matter what their . .. disability ... to the full and equal accommodations . .. .” (Civ. Code, §51, subd. (b).) Under the Unruh Civil Rights Act, the term “disability” means any mental or physical disability as defined in the FEHA. (Civ. Code, § 51, subd. (e)(1).) In order for any impairment to amount to a “disability” it must have an adverse impact on the employee’s ability to do his job. As noted above, although there is evidence the Hospital requested Nesson undergo certain evaluations, there is no actual evidence Nesson was disabled. Nesson waived any claims when he failed and refused to cooperate with the evaluations requested by the рeer review committee. Thus, neither the summary suspension nor the termination of the Agreement amounted to a deprivation of full and equal accommodation under the Unruh Civil Rights Act. The Unruh claims would also fail.
VI
DISPOSITION
The trial court properly found all causes of action arose from alleged actions and conduct by the Hospital during medical peer review that qualify as official proceedings under Code of Civil Procedure section 425.16. It further found all causes of action barred under Westlake Community Hosp. v. Superior Court, supra,
McKinster, Acting R J., and Miller, 1, concurred.
Notes
“ ‘[A] practitioner who temporarily takes the place of another.’ (Dorland’s Illus. Medical Diet. (26th ed. 1990) p. 756.)” (Major v. Memorial Hospitals Assn. (1999)