Bonni v. St. Joseph Health Sys.

11 Cal.5th 995

491 P.3d 1058

281 Cal.Rptr.3d 678

Aram BONNI, Plaintiff and Appellant,

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

S244148

Supreme Court of California.

July 29, 2021

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

Arent Fox, Lowell C. Brown, Debra J. Albin-Riley, Karen Van Essen, Los Angeles, and Diane Roldán, San Francisco, for Defendants and Respondents.

Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen Wener Shenfeld and Joanna S. McCallum, Los Angeles, for Dignity Health, Sutter Health, Adventist Health, MemorialCare and Sharp Healthcare as Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy, Jeremy B. Rosen, Felix Shafir, John F. Querio, Burbank, and Megan S. Wilson for California Hospital Association as Amicus Curiae on behalf of Defendants and Respondents.

Francisco J. Silva, Stacey B. Wittorff, Joseph M. Cachuela; Athene Law and Long X. Do, Sacramento, for California Medical Association as Amicus Curiae.

Opinion of the Court by Kruger, J.

Under California law, hospitals must use a process of professional peer review to evaluate physicians’ qualifications for medical staff privileges. (See Bus. & Prof. Code, §§ 805, 809 – 809.9.) Because the loss of privileges can significantly limit a physician's ability to practice medicine, peer review proceedings are a frequent subject of litigation in California courts. And as the number of lawsuits challenging peer review determinations has grown, so too has the number of motions to strike under Code of Civil Procedure section 425.16. Familiarly known as the anti-SLAPP statute, this provision allows defendants to seek early dismissal of unmeritorious claims arising from protected speech and petitioning activities. ( Code Civ. Proc., § 425.16, subd. (b).)

We have previously held that the anti-SLAPP statute's protections extend to speech and petitioning in connection with hospital peer review. (See Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 46 Cal.Rptr.3d 41, 138 P.3d 193.) This case requires us to consider the scope and limits of those protections. Plaintiff, a physician, alleges the defendant hospitals and members of its medical staff unlawfully retaliated against him for raising concerns about patient care. He says this retaliation began with the suspension of his staff privileges and culminated in the termination of those privileges after peer review. The hospitals seek to strike the retaliation claims under the anti-SLAPP statute. They contend that any claim arising from the peer review process necessarily targets protected speech or petitioning activity and therefore must be afforded anti-SLAPP protection. We hold otherwise. While some of the 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. Thus, while the hospitals may seek to strike some of the physician's retaliation claims, they are not entitled to wholesale dismissal of these claims under the anti-SLAPP law.

I.

A.

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 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 (see Sadeghi v. Sharp Memorial Medical Center Chula Vista (2013) 221 Cal.App.4th 598, 615, 164 Cal.Rptr.3d 420 ); 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.

B.

Bonni sued St. Joseph, Mission, various affiliated entities, and eight individual doctors involved in the disciplinary process (collectively the Hospitals). Bonni's first cause of action alleged that the Hospitals unlawfully retaliated...