The California Supreme Court has addressed yet another brick in the anti-SLAPP wall protecting the medical peer review process from challenges by disgruntled physicians and delivered a mixed-bag opinion, with one holding favoring peer reviewers and the other favoring the plaintiff physician. Readers of this blog are familiar with the ever-shifting battlefront between peer reviewers and reviewed physicians over the former’s use of the anti-SLAPP statute (Cal. Code Civ. Proc., § 425.16) to protect their review process from legal challenges by physicians. (See our prior posts on commentary on the Wilson v. CNN decision and commentary on the oral arguments for Wilson v. CNN). As this most recent case demonstrates, there have been, and will continue to be, advances and retreats on both sides.
In general, a legal defendant’s anti-SLAPP motion involves two steps: Number one, the defendant must establish that the plaintiff’s claims arise from the defendant’s “protected activity”; and Number two, if the defendant so establishes Number one, then the plaintiff must show that his/her claim “has at least minimal merit.”
In Bonni v. St. Joseph Health System et al., No. S244148 (Cal. Jul. 29, 2021) (Slip Opinion) (“Bonni”), Dr. Aram Bonni had brought a claim under California Health & Safety Code §1278.5 alleging that two hospitals and their physician members had retaliated against him by initiating peer review proceedings and disciplinary actions after he had raised concerns regarding patient care. The hospitals filed an anti-SLAPP motion and moved to strike the retaliation causes of action. The Superior Court granted the motion on the ground that the “gravamen” of the claim was based on protected peer review activities; but the Court of Appeal reversed, taking the position that the anti-SLAPP statute did not protect actions taken with a retaliatory motive (as Dr. Bonni asserted).
Bonni gave the Supreme Court the opportunity to clarify the applicability of the anti-SLAPP statutes after prior decisions (Kibler v. Northern Inyo County Local Hospital Dist, (2006) 39 Cal.4th 192; Park v. Board of Trustees of California State university, (2017) 2 Cal.5th 1057; and Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871) that answered some important questions, but left others open. In Kibler (argued successfully by the late Carlo Coppo, Esq. of Nossaman), the Court unanimously held that medical peer review proceedings were subject to anti-SLAPP protections, but it did not resolve whether both the statements made during the proceedings, as well as the decisions and any actions taken based on such decisions, were subject to anti-SLAPP protections. Park addressed a separate question in holding that a court must draw a clear distinction between activities that form the basis for liability from those that form the evidence of liability. Wilson then held that there is no categorical exception for discrimination or retaliation claims under the anti-SLAPP statute. In other words, regardless of alleged motivations, if the defendant demonstrates that the underlying activity is a protected activity, then the defendant has satisfied step Number one of the anti-SLAPP motion process and the burden shifts to the plaintiff to demonstrate “minimal merit.”
Bonni presented two issues stemming from these prior decisions: first, how to address “mixed” causes of action where some defendant actions might be protected, but others might not; and second, whether protected activity includes statements made during the peer review process, as well as actions taken resulting from that process.
How to Handle “Mixed Causes of Action”?
The first Bonni issue concerned step Number one in the anti-SLAPP motion process – namely, the hospitals’ burden to establish the retaliation cause of action was against a protected activity and thus should be summarily struck. Dr. Bonni argued that where, as here, the anti-SLAPP motion was filed by the defendant to strike the entire cause of action, the court should look to the “gravamen” or “principal thrust” of the cause of action. The defendant hospitals countered that the court under Baral v. Schnitt (2016) 1 Cal.5th 376 should separately analyze each of the acts forming the basis for the cause of action to determine whether the activity is subject to anti-SLAPP protections. In response, the Court described the cause of action as “mixed” where some allegations constituted protected activity and others did not. The Court sided with the hospital defendants and held under Baral that even with a “mixed” cause of action where the defendant moves to strike the entire cause of action and not simply the non-protected activity, the Court must analyze each act within the cause of action individually.
Do Anti-SLAPP Protections Extend to Disciplinary Decisions and Actions?
The second Bonni issue was whether both the statements made during the peer review proceedings, as well as the decisions and actions based on such statements, are all deemed protected activity and therefore subject to anti-SLAPP protections. On this issue, the Court ruled against the defendant hospitals. The Court did acknowledge the importance of the statutorily-mandated peer review process “to create fairness, and to guard against arbitrariness” and to prioritize patient welfare. Further, the Court opined that withholding anti-SLAPP protections from those with the necessary knowledge in this process would chill the willingness of medical providers to participate in peer review and fulfill its essential purpose of prioritizing patient welfare without fear of retribution.
However, while Code Civ. Proc. § 425.16(e)(4) extended protection to conduct “in furtherance of” the protected activity, the Court specified the additional conduct must bear a “substantial relationship” to the furtherance of the protected activity. Although conduct “in furtherance” could extend to both communicative and non-communicative acts, the Court held that the defendant hospitals failed to establish a substantial relationship between the speech and petitioning activity of the peer review process on the one hand, with the disciplinary decision and action on the other hand. Therefore, “while some 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 discipline imposed through the peer review process does not.”
The result was that Dr. Bonni could rely on the communicative statements made during the peer review proceedings as evidence of potential illicit motive, and the Court remanded the case for resolution of step Number two of the anti-SLAPP analysis – i.e., whether Dr. Bonni’s claim “ha[d] at least minimal merit.”
Regardless, this decision does hold some benefits for hospitals and medical staff. Bonni affirms the notion that the peer review process – including those legally mandated reports for the Medical Board of California and the National Practitioner Data Bank – are protected, and medical professionals should feel safer in engaging in that process. This affirmed protection should hopefully quell the onslaught of attempts by physicians to sue hospitals and medical staff for routine, mandated reporting and review requirements. However, since Bonni has now established that conduct engaged in during the peer review process is not afforded anti-SLAPP protection, hospitals and medical staff should continue to purposefully review and engage in their peer review procedures to ensure a fair and appropriate process that will satisfy the anti-SLAPP requirements.
