Kibler’s long shadow to be lengthened further as state Supreme Court addresses application of anti-SLAPP in peer review cases

The California Supreme Court recently issued an order calling for additional briefing in the peer review case of Bonni v. St. Joseph Health System. In Bonni and another peer review case, Melamed v. Cedars-Sinai Medical Center, the court granted petitions for review in November 2017 and January 2018, respectively, and deferred further action pending its consideration and resolution of another anti-SLAPP issue in Wilson v. Cable News Network, Inc., 7 Cal. 5th 871 (2019). With the filing of the Wilson opinion on July 22, 2019, the court now turns to Bonni and is expected to answer open questions about the application of the anti-SLAPP statute, Civil Procedure Code Section 425.16, in the context of peer review proceedings governed by Business & Professions Code Section 809 et seq.

Simultaneously with its order for briefing in Bonni, the court deferred further action in Melamed pending the disposition of Bonni. Dr. Melamed alleged he was summarily suspended and subjected to peer review for making patient safety complaints. Melamed first raised his whistleblower retaliation defense in his first amended complaint filed in the civil lawsuit. In February 2017, in Melamed v. Cedars-Sinai Medical Center, 8 Cal. App. 5th 1271, the Court of Appeal upheld the trial court's granting of the hospital's anti-SLAPP motion, holding the claim arose from protected peer review activity and plaintiff failed to establish a presumption of retaliation under Health and Safety Code Section 1278.5(d)(1). However, following the Supreme Court's decision in Park v. Board of Trustees of the California State University (see below), the Court of Appeal revisited and reversed its February decision in an unpublished October 2017 decision which tracked Park and Bonni.

Dr. Bonni, a gynecologic surgeon, alleged whistleblower retaliation when the hospital summarily suspended his privileges, conducted peer review proceedings, and denied his reappointment after he complained about robotic surgical services and devices. In July 2017, in Bonni v. St. Joseph Hospital System, 13 Cal. App. 5th 851 (2017), the Court of Appeal reversed the trial court's granting of defendants' anti-SLAPP motion, holding that because the claim was based on defendants' retaliatory motive rather than the protected peer review activities themselves, the anti-SLAPP motion failed on Prong 1. The court emphasized "[d]iscrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion." The Supreme Court in Wilson specifically rejected Bonni on this point, concluding that if the conduct at issue arises from protected activity, Prong 1 of the anti-SLAPP analysis is satisfied, regardless of any alleged improper motive.

The Supreme Court's guidance on the application of the anti-SLAPP statute to hospital peer review proceedings dates back to its 2006 opinion in Kibler v. Northern Inyo County Local Hospital District, 39 Cal. 4th 192. The unanimous court in Kibler held "a hospital's peer review qualifies as 'any other official proceeding authorized by law' under [Civil Procedure Code Section 425.16(e)(2)]." Noting the reticence of many physicians to sit on peer review committees in judgment of their peers, the court commented that to hold otherwise "would discourage further participation in peer review by allowing disciplined physicians to file harassing lawsuits against hospitals and their peer review committee members." Consistent with the legislative proclamation to apply the anti-SLAPP statute "broadly," early post-Kibler decisions liberally construed the statute to apply in varied peer review contexts.

Legislative workarounds were promptly initiated in the wake of Kibler. In 2008, the whistleblower protections of Health & Safety Code Section 1278.5 were expanded to include physicians as protected class members when they had "[p]resented a grievance, complaint, or report to the facility ... or the medical staff." As anticipated, physician plaintiffs began to assert claims that peer review proceedings against them were retaliation attributable to their whistleblower status. For example, Dr. Fahlen claimed he lost his hospital privileges through the peer review process as a form of whistleblower retaliation for his complaints about nurses failing to follow orders and endangering patients' lives. In Fahlen v. Sutter Central Valley Hospitals, 58 Cal. 4th 655 (2014), the Supreme Court ruled that where a physician whistleblower claims the peer review process itself was the retaliatory conduct, he need not exhaust internal administrative hearing rights or mandamus remedies before filing a civil lawsuit.

In May 2017, the Supreme Court decided Park v. Board of Trustees of the California State University, 2 Cal. 5th 1057. Park was denied tenure and his employment was terminated, which he contended was national origin discrimination. The Supreme Court substantially narrowed the application of the anti-SLAPP statute, holding "a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." The Supreme Court cast doubt on the applicability of anti-SLAPP motions in peer review -- in this teacher-tenure case -- when it rejected the university's defense that the tenure decision and communications leading to it were "intertwined and inseparable." It disapproved of broader interpretations from Kibler-progeny cases, explaining Kibler "does not stand for the proposition that disciplinary decisions reached in a peer review process, as opposed to statements in connection with that process, are protected."

Unlike Park and Wilson, the Bonni and Melamed cases directly involve health care, and they provide the Supreme Court with the clearest present opportunity to revisit the application of the anti-SLAPP statute in the peer review context. With the import that the disposition of these cases will have on future anti-SLAPP litigation in the aftermath of peer review, those seeking to further limit Kibler and carve out retaliation claims, on the one hand, and those urging the court to restore the broad application of the anti-SLAPP statute as originally envisioned in Kibler, on the other, can be expected to advocate vigorously with amicus advocacy and strong interest group support for their positions. 