Bonni v. St. Joseph Health Sys.

83 Cal.App.5th 288

298 Cal.Rptr.3d 730

Aram BONNI, Plaintiff and Appellant,

v.ST. JOSEPH HEALTH SYSTEM et al., Defendants and Respondents.

G052367

Court of Appeal, Fourth District, Division 3, California.

Filed August 23, 2022

Greene, Broillet & Wheeler, Mark T. Quigley, Scott H. Carr, Christian T.F. Nickerson, El Segundo; Esner, Change & Boyer, Stuart B. Esner, Los Angeles, and Joseph Persoff for Plaintiff and Appellant.

ArentFox Schiff, Lowell Brown, Debra J. Albin-Riley, Los Angeles, and Diane Roldan, San Francisco, for Defendants and Respondents.

OPINION

MOORE, ACTING P. J.

Plaintiff Aram Bonni is a surgeon. He sued his employers, defendants Mission Hospital Regional Medical Center and St. Joseph Hospital of Orange, as well several other related entities and physicians (collectively, the Hospitals) for retaliation under Health and Safety Code section 1278.5. Bonni alleged he made whistleblower complaints, which caused the Hospitals to retaliate against him by, among other things, suspending his medical staff privileges and initiating peer review proceedings to evaluate his privileges.

In response, the Hospitals filed an anti-SLAPP motion under Code of Civil Procedure section 425.16.¹ They argued Bonni's retaliation cause of action arose from the peer review proceedings, which were protected activity, and that his claims had no merit. The trial court agreed and granted the motion in its entirety. Bonni appealed. This court reversed, finding Bonni's retaliation claim did not arise from protected activity. Our Supreme Court then granted review. It determined Bonni's retaliation cause of action was composed of 19 distinct retaliation claims. Of these claims, it found eight arose from protected activity while the remainder did not. It remanded the matter back to this court to determine whether Bonni has shown a probability of prevailing on these eight claims.

On remand, we conclude Bonni has not met the requisite burden because the eight claims at issue are all precluded by the litigation privilege. Based on this finding and our Supreme Court's ruling, we reverse the trial court's order granting the Hospitals' anti-SLAPP motion in its entirety. We direct the court on remand to enter an order granting the motion as to the eight claims at issue and denying it as to the remaining retaliation claims.

IFACTS AND PROCEDURAL HISTORY

A. Factual Background

We start with our Supreme Court's recitation of the facts set forth in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 281 Cal.Rptr.3d 678, 491 P.3d 1058 ( Bonni ).

"Aram Bonni, M.D., is a surgeon specializing in obstetrics and gynecology who began practicing in 1998. He received staff privileges at defendant Mission Hospital Regional Medical Center (Mission) in 2002 and at an affiliated hospital, defendant St. Joseph Hospital of Orange (St. Joseph), in 2010. Bonni would face peer review proceedings at both hospitals, which would ultimately lead to a settlement with St. Joseph's [(the St. Joseph settlement)] wherein Bonni agreed to resign and to a decision terminating Bonni's staff privileges at Mission.

"The proceedings at St. Joseph's began not long after Bonni received staff privileges in 2010. That same year, Bonni performed a surgery proctored and assisted by the hospital's chief of obstetrics and gynecology, one of the named defendants. Like several of Bonni's surgeries, the surgery involved use of a robotic assistant to supply three-dimensional imaging and cut and cauterize tissue. On this occasion, the robot's camera provided only two-dimensional imaging instead of three, and Bonni complained to the assisting doctor about the malfunction. The surgery resulted in patient complications. Over the next few weeks, Bonni performed two more surgeries in which similar problems occurred. Again the patients suffered complications; again Bonni raised concerns about the performance of the robotic assistant.

"After the third surgery, Bonni was advised that St. Joseph was summarily suspending his staff privileges. The subsequent written notice from St. Joseph's chief of staff — one of the defendants here — asserted that in light of ‘serious and avoidable injuries to patients’ in the three cases, suspension was necessary to avoid ‘imminent danger’ to St. Joseph's patients. (See Bus. & Prof. Code, § 809.5, subd. (a).)

"As permitted by the hospital staff bylaws, Bonni sought an informal interview with the hospital's medical executive committee. After the interview, the medical executive committee elected to continue the suspension and recommended termination of Bonni's privileges. Based on the length of the suspension, St. Joseph was required to, and did, report its disciplinary action to the Medical Board of California and the National Practitioner Data Bank. (See Bus. & Prof. Code, § 805, subd. (e) ; 42 U.S.C. § 11133(a)(1).)

"Bonni challenged the suspension and termination recommendation and requested a formal hearing before a hospital hearing committee composed of members of the hospital staff. After a lengthy series of evidentiary hearings, the hearing committee determined that the medical executive committee had sustained its burden on three of 18 charges against Bonni but had not shown by a preponderance of the evidence that either the summary suspension or the termination recommendation was warranted.

"The medical executive committee requested an administrative appeal, whereupon the parties settled. The committee dropped its appeal, Bonni agreed to resign and release the hospital and its staff from any claims, and the parties agreed on the language to be used in the required further reports to the Medical Board of California and National Practitioner Data Bank concerning the disciplinary measures taken against Bonni. (See Bus. & Prof. Code, § 805, subd. (e) ; 42 U.S.C. § 11133(a)(1).)

"In the meantime, a similar story was unfolding at Mission. In October 2009, Bonni began to voice concerns about robot-assisted surgeries at Mission. In December, Bonni performed one such surgery. According to Bonni, the robot's camera, tissue-cutting scissors, and cauterizing tool all malfunctioned. The patient experienced complications.

"In the wake of that surgery, Mission initiated review of Bonni's performance over the preceding five years. After an investigation, a peer review committee recommended that Bonni's privileges be suspended pending further training in robotic procedures, and Mission's chief of staff, a defendant here, imposed a summary suspension.

"While the suspension was under review, Bonni provided Mission's medical executive committee previous communications about robotic-surgery issues. Apparently unmoved, the committee voted to continue the suspension until Bonni completed additional training. As with the St. Joseph suspension, the length of the suspension triggered a duty to file reports with the Medical Board of California and the National Practitioner Data Bank.

"At the same time, Bonni's privileges were set to lapse, and he submitted an application for reappointment. (See Cal. Code Regs., tit. 22, § 70701, subd. (a)(7) [physicians must seek reappointment at least once every two years].) Mission's medical executive committee recommended denial of the application.

"Bonni invoked his right to a hearing before Mission's judicial review committee, a panel of five doctors. The judicial review committee considered the reasonableness of Bonni's suspension but did not directly address his reappointment. In support of suspension, Mission's medical executive committee submitted approximately 125 charges arising from 19 cases at Mission and, on the ground that they likewise demonstrated lapses in skill or judgment, the three problematic 2010 surgeries at its affiliated hospital, St. Joseph. After considering extensive testimony, the committee unanimously concluded that the original summary suspension was justified, but by a divided vote concluded continuation of the suspension was no longer warranted. The committee found eight of the 125 charges substantiated. The eight sustained charges related principally to documentation and surgery scheduling issues; according to the final report, ‘none resulted in poor patient outcomes related to issues raised in these charges.’

"Both sides appealed to Mission's appellate committee. The appellate committee concluded that the initial suspension was warranted at the time; that whether continuation of the suspension was still warranted was a matter outside the jurisdiction of the judicial review committee and appellate committee [citation]; and, finally, that the denial of Bonni's reappointment application was reasonable. The appellate committee recommended that Mission's board of trustees find the summary suspension warranted and deny the pending application for reappointment. The board of trustees adopted the committee's recommendations and denied Bonni renewal of his staff privileges." ( Bonni, supra , 11 Cal.5th at pp. 1004–1007, 281 Cal.Rptr.3d 678, 491 P.3d 1058.)

B. Procedural History

"Bonni sued St. Joseph, Mission, various affiliated entities, and eight individual doctors involved in the disciplinary process [(defined above as the Hospitals)]. Bonni's first cause of action alleged that the Hospitals unlawfully retaliated against him for raising patient safety concerns by summarily suspending him, reporting his suspensions to the state medical board, subjecting him to lengthy and humiliating peer review proceedings, defaming him, and ultimately terminating his hospital privileges. (See Health & Saf. Code, § 1278.5 ; Bus. & Prof. Code, §§ 510, 2056.) Bonni also alleged that St. Joseph had retaliated against him by fraudulently inducing him to enter into [the St. Joseph settlement] and then breaching that agreement. Based on the same conduct, Bonni also brought causes of action against St. Joseph for breach of contract and rescission of the [St. Joseph settlement].

"The Hospitals filed an anti-SLAPP motion seeking to strike the retaliation...