Can anti-SLAPP be used to squelch employment claims?

State Supreme Court justices continued to grapple with whether California's anti-SLAPP statute can be used to squelch employment claims Wednesday in a case involving whether a hospital can use the law to block a doctor's retaliation lawsuit.

During oral arguments, the justices appeared skeptical of an Orange County hospital's argument that the statute can be used to squelch Dr. Aram Bonni's lawsuit entirely.

Bonni was suspended by the hospital over allegations of poor surgical skills and medical judgment while a medical executive committee of fellow doctors at St. Joseph Health System reviewed the allegations.

The doctor said he had expressed concerns about a robotic system used in surgery that he said was malfunctioning. The hospital suspended him the following day in 2010, according to court documents.

An attorney for the hospital chain, Debra J. Albin-Riley, told the state Supreme Court the lengthy investigation and reporting of Bonni to the Medical Board of California were required by state law.

"It is the hospital that has to file the reports or face very stiff consequences," said Albin-Riley, a partner with Arent Fox LLP. "Those are about protecting patients."

But several justices voiced concern about treating a report as a shield to prevent the doctor from pursuing his retaliation lawsuit. Bonni v. St. Joseph Health System et al., S244148 (S. Sup. Ct, filed Sept. 5, 2017).

"That would seem to broaden the anti-SLAPP statute quite a bit," Justice Leondra R. Kruger told Albin-Riley.

Later, Justice Goodwin H. Liu -- who like Kruger was appointed to the court by Gov. Jerry Brown -- echoed Kruger's concern.

Justice Martin J. Jenkins, an appointee of Gov. Gavin Newsom, questioned how the facts of Bonni's case differed from a similar lawsuit decided by the high court in favor of an academic who sued California State University after being denied tenure.

"How is this different from tenure in the Park case?" Jenkins asked. In that decision, the state Supreme Court struck down the university's anti-SLAPP defense on the grounds that its denial of tenure to Sungho Park was the main issue in the case, not discussions by university officials. Park v. Board of Trustees of California State University, 2 Cal. 5th 1057 (2017.

Liu appeared to compare the cases in an exchange with Bonni's attorney, Stuart B. Esner of Esner Chang & Boyer.

"Defendants focus on the peer review process," the justice said. "You're saying the focus is the act of suspending the doctor."

Esner agreed. "It is a course of conduct evidenced by communications that is retaliatory," he said.

Orange County Superior Court Judge Andrew P. Banks, now retired, granted the hospital's motion that the anti-SLAPP statute applies.

But the 4th District Court of Appeal reversed. "Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion," Justice Raymond J. Ikola wrote.

David M. Balfour, an attorney with Nossaman LLP who watched the arguments online, said the case's outcome could have a substantial impact on how peer review of doctors is handled.

He said the state high court's more recent rulings, since the hospital chain's first appeal in 2015, are less sympathetic to defendants seeking to get employment cases dismissed under the state anti-SLAPP law.

"It appears the court will continue on the path identified in this line of cases and will rule that if the relevant lawsuit centers around conduct, such as a suspension or termination of privileges, then the anti-SLAPP statute will not apply regardless of the critical role of peer review activities in protecting patient care," Balfour wrote in an email.

At the same time, several justices wondered if no part of the medical peer review process should be protected, such as comments made during hearings.