Relying on a technical interpretation of California’s anti-Strategic Lawsuit Against Public Participation (SLAPP) statute, the California Supreme Court has just ruled on what sorts of conduct forming the basis of a doctor’s retaliation claim against a hospital are subject to the protections of the anti-SLAPP statute – a powerful tool for any defendant. (Bonni v. St. Joseph Health System, Case No. S244148, July 29, 2021.) While the specific answer provided by the court – “it depends” – is the favorite of every lawyer, the implication of the court’s ruling is generally that a doctor’s retaliation claim related to a hospital’s decision to impose discipline, such as suspending her privileges, will not be subject to anti-SLAPP dismissal, but that a doctor’s challenge to other aspects of a peer review proceeding, such as statements made at a hearing or the hospital’s reporting a suspension to the medical board, will be protected and subject to anti-SLAPP dismissal.
California’s Anti-SLAPP Statute
California’s anti-SLAPP statute, Code of Civ. Proc. § 425.16, first enacted in 1992, is a procedural device that allows defendants to obtain quick dismissal of a claim that arises out of certain “protected activity.” Determining whether a claim arises out of protected activity is a constantly evolving area of law and has been the subject of many decisions by both the California Supreme Court and the California Courts of Appeal. The legislative purpose of the anti-SLAPP statute is to discourage lawsuits brought primarily to chill the valid exercise of First Amendment-related conduct. To that end, the statute defines four specific categories of protected activity:
- Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.
- 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.
- Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
- Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
If the defendant establishes that a claim arises out of protected activity, then the burden shifts to the plaintiff to demonstrate this claim contains minimal merit. If the plaintiff does not, the claim will be dismissed.
The California Supreme Court has previously held that peer review proceedings are an “official proceeding authorized by law,” as referenced in categories one and two. (Kibler v. Northern Inyo County Local Hospital Dist. (2006), 39 Cal.4th 192.) This recent Bonni decision focused on the distinction between the second and fourth categories.
The Bonni Case
Aram Bonni, M.D.’s privileges at two hospitals were suspended, terminated and denied. Dr. Bonni sued the parent health system, both hospitals and eight individual doctors, alleging in part that the suspension, termination and denial of his privileges were retaliation due to his complaining about patient safety issues. Generally, individual healthcare providers are protected from retaliation for raising patient safety issues under Cal. Health & Saf. Code § 1278.5. Dr. Bonni alleged 16 different types of conduct supporting this retaliation claim, including the suspension, termination and denial of his privileges, as well as statements made at peer review hearings and the reporting of his suspension to the Medical Board of California.
As all the conduct alleged by Dr. Bonni is related to the peer review process, and as the peer review process is an “official proceeding authorized by law” within the meaning of the anti-SLAPP statute, the trial court granted the defendants’ anti-SLAPP motion and dismissed Dr. Bonni’s retaliation claim. The Court of Appeal reversed, explaining that, simply because the claim is related to the peer review process does not mean the anti-SLAPP statute’s protections are triggered. Rather, the Court of Appeal explained, the anti-SLAPP statute requires that the subject conduct be a “written or oral statement or writing” made in connection with a peer review proceeding. The Court of Appeal then concluded that the claim was really a challenge to the decisions relating to Dr. Bonni’s privileges and not to any written or oral statement or writing, and therefore the anti-SLAPP statute did not apply.
The Supreme Court reviewed that decision and disagreed with the Court of Appeal in part. The Supreme Court concluded that the Court of Appeal’s characterization of Dr. Bonni’s claim as merely a challenge to the decisions relating to his privileges was overly simplified. Yes, the claim did arise out of the decisions relating to his privileges, but it also arose out of other alleged conduct, such as the hospital’s reporting of the suspension to the medical board and statements allegedly made at the peer review hearings. As this additional alleged conduct did constitute a “written or oral statement or writing” that was made in relation to the peer review proceeding, the anti-SLAPP statute applies to those allegations. Thus, the Supreme Court held that lower courts should engage in an individualized review of allegations to determine whether they are subject to being stricken under the anti-SLAPP statute.
The Supreme Court then looked to the fourth category of conduct protected by the anti-SLAPP statute – any conduct made in furtherance of the hospitals’ constitutional rights of petition or speech in connection with a public issue or an issue of public interest – and concluded it did not apply either. The Supreme Court concluded this fourth category was not implicated because there was no connection between the hospitals’ disciplinary actions and their constitutional rights. The Supreme Court contrasted this situation with that of a prior case, where the court acknowledged that some staffing decisions by a news organization in the business of speaking on matters of public importance may meet this standard.
As a result of the ruling, Dr. Bonni can proceed past the initial stages of litigation with his retaliation claim only to the extent the specific allegations are based on the disciplinary actions taken against him. Should he want to proceed with allegations challenging oral statements or writings, he must first put forth evidence demonstrating that the claim those allegations support contains minimal merit. If he cannot, these allegations must be stricken from the lawsuit.
Takeaways from the Decision
While the Supreme Court decision in Bonni limits the types of allegations that may withstand anti-SLAPP dismissal, in most situations, hospitals will not be able to quickly and completely dismiss under that statute a doctor’s lawsuit challenging any disciplinary actions as retaliatory. The requirement that courts must review allegations individually to determine whether they are subject to this dismissal means that there will be no easy resolution of such cases.
Some key takeaways from the decision include:
- Individual healthcare providers involved as witnesses, or in other capacities, in peer review proceedings may be less likely to be named in lawsuits brought by other doctors. A California Court of Appeal has already held that individual doctors cannot be liable for whistleblower retaliation claims under Health & Saf. Code § 1278.5. (Armin v. Riverside Community Hospital (2016), 5 Cal.App.5th 810.) While a doctor subject to peer review may bring different claims against other participants in peer review proceedings, a defamation claim will necessarily be based on an oral statement or writing, and therefore would likely be dismissed under the anti-SLAPP statute.
- As a matter of reassurance for hospitals, the Supreme Court clearly established that the mandated reports to state licensing agencies, such as the Medical Board of California, or to the National Practitioner Data Bank following disciplinary action or restrictions imposed on a doctor are protected as “statement[s] or writing[s] made in connection with an issue under consideration” in an “official proceeding” under Code of Civ. Proc. § 425.16 (e)(2), and therefore would be subject to anti-SLAPP protection. Since such reporting is often a concern of peer reviewers, this ruling should provide some comfort that those reports will be protected.
- In another bit of good news for hospitals, the Supreme Court upheld the dismissal of Dr. Bonni’s allegations regarding the settlement he reached with one of the hospitals, where he agreed to resign from its medical staff. Dr. Bonni had alleged that his settlement agreement was fraudulent and the hospital breached it. The hospital successfully argued that all aspects of the agreement, including the communications that led up to it, were protected and subject to anti-SLAPP dismissal. Notably, this result is not due to its relation to peer review proceedings but instead is due to the agreement’s being related to the legal process, which is also protected by the anti-SLAPP statute. This aspect of the decision should be viewed to encourage participation in settlement discussions between medical staff leaders and doctors under peer review.
- Procedurally, the Bonni case, filed in 2015, is far from over. The case will now be sent back to the Court of Appeal, where that court will determine whether any allegations in Dr. Bonni’s claim that are subject to the anti-SLAPP statute have minimal merit. If the court determines they do, that retaliation claim can proceed on those grounds. Thereafter, assuming the case doesn’t go back up to the Supreme Court, the case will return to the trial court, where it will proceed through the initial stages of litigation and the defendants will have available the traditional procedural tools any other defendant would have to seek dismissal of the case.
- As hospital disciplinary decisions will not likely be protected under the anti-SLAPP statute, hospitals should be prepared to demonstrate in court that the legitimate business reason for taking the disciplinary action is not mere pretext. This will likely be the strongest defense the hospital has against any claim that the disciplinary action is motivated by an illegal purpose.