Court of Appeal Publishes Peer Review Decision Expanding Anti-SLAPP Protections for Medical Staffs and Hospitals

The court decision can be found here.

What to Know

The Court of Appeal decision, together with the California Supreme Court’s earlier decision in this matter, more clearly defines the landscape of peer review activities protected by California’s anti-SLAPP statute. The decisions make it clear that statements and other communications made in the peer review process are broadly protected from retaliation claims, including the following:

• Reports to the Medical Board of California and the National Practitioner Data Bank;
• Initiation of peer review proceedings;
• Alleged abuse of the peer review process;
• Alleged defamatory statements and alleged character assassination, such as criticisms of a physician’s professional competence;
• Medical executive committee disciplinary recommendations to a hospital board of trustees;
• Medical executive committee arguments in a medical staff hearing;
• Appellate review committee disciplinary recommendations to a hospital board of trustees; and
• “Settlement statements” made in peer review matters, including settlement negotiations, alleged fraudulent inducement, alleged undue influence, and alleged settlement agreement breach.

Background

We previously described the background of this case and other important anti-SLAPP cases in our August 4, 2021 article. Plaintiff, Aram Bonni, M.D., sued Defendants pursuant to Health and Safety Code section 1278.5, alleging Defendants retaliated against him by subjecting him to the peer review process and imposing disciplinary action. In response, Defendants filed an anti-SLAPP motion, a tool used to defeat frivolous claims designed to chill participation in matters of public interest. Anti-SLAPP motions allow courts to dismiss claims early in a lawsuit if they satisfy the two-step anti-SLAPP analysis: (1) The claims arise from protected speech or petitioning activity related to a public issue; and (2) the claims do not have “minimal merit.” The trial court granted Defendants’ motion in its entirety, finding that Dr. Bonni’s claims arose from peer review proceedings, which were protected activity, and that his claims were meritless. Dr. Bonni appealed.

In 2017, the Court of Appeal reversed the trial court’s decision, finding that anti-SLAPP did not protect lawsuits based on alleged retaliation. The Defendants asked the California Supreme Court to review the issue, and it did so.

In 2021, the California Supreme Court reversed the Court of Appeal’s decision and held that anti-SLAPP protects peer review statements (speech), but not decisions (actions), regardless of any alleged retaliatory motive. For example, hospital reports to the Medical Board of California and the National Practitioner Data Bank are protected speech as communication of an action such as suspension of privileges to the relevant agency. On the other hand, disciplinary action like a suspension is not protected because it does not advance the ability to speak or petition on a public issue. The court found that eight of Dr. Bonni’s retaliation claims were based on protected peer review activity:

1. Reports to the Medical Board of California and the National Practitioner Data Bank;
    
2. Alleged abuse of the peer review process;
    
3. Appellate review committee disciplinary recommendations to a hospital board of trustees;
    
4. Alleged character assassination;
    
5. Alleged defamatory statements;
    
6. Alleged fraudulent inducement to settle;
    
7. Alleged undue influence to settle; and
    
8. Allegedly breaching the settlement agreement by failing to use agreed-upon reporting language.

The court sent the case back to the Court of Appeal for the step-two merits analysis on these eight claims.

The Court of Appeal Expands Peer Review Protections by Applying the Litigation Privilege to All Claims Involving Statements and Communications

The Court of Appeal responded to the Supreme Court’s direction with a sweeping decision on August 23, 2022. The court concluded that the behavior involved in all eight claims is protected by anti-SLAPP. All of the claims fail because they are based on privileged communications. Specifically, the claims are barred by the litigation privilege (Civil Code section 47, subdivision (b)), an absolute privilege afforded to statements made in connection with official proceedings, including peer review proceedings. The court also held that a physician cannot use the eight types of peer review activities, as well as the other protected peer review statements outlined at the outset, to sue for retaliation under section 1278.5.

The Court of Appeal’s August 23 decision was unpublished, meaning that it could not be cited in other cases. Numerous hospital industry members, recognizing the decision’s importance, filed letters urging the court to order the decision be published. On September 14, 2022, the court did so, establishing the decision as important official precedent. This decision is the first peer review case to decide whether a physician’s section 1278.5 retaliation claims have “minimal merit” since the California Supreme Court clarified the scope of protected peer review activities in its 2021 Bonni decision. It is also the first appellate decision extending the litigation privilege to peer review activities beyond reports to government agencies.

Good News for Hospitals, Medical Staffs, and All Peer Reviewers

The Bonni decisions confirm that the anti-SLAPP statute is still a powerful way to defeat retaliation claims based on peer review statements, including recommendations and governmental reports. The contours of protected peer review activity are now more clearly defined, offering critical guidance for hospitals, medical staffs, and peer reviewers. As hospitals, medical staffs, and health care professionals conduct peer review and consider appropriate disciplinary measures, they should consider carefully how the law will apply to protect their speech and decisions.