Introduction

Recently, the Supreme Court has heard argument regarding the anti-SLAPP statute’s application to a disciplined physician’s retaliation and whistleblower lawsuit.  Based on the May 5, 2021 arguments, the Court appears apprehensive about applying the anti-SLAPP statute to insulate hospitals from civil liability in disciplining physicians, suspending their privileges and reporting them to the appropriate medical licensing authorities, even if those activities are intertwined with constitutionally protected speech.  The final opinion has not been published, but Bonni is trending toward restricting the scope of anti-SLAPP motions to strike in this employment context and signaling a victory for the plaintiffs’ attorneys in the employment context.

Background

Plaintiff had medical staff privileges at Mission Hospital from 2002 to November 2010 and St. Joseph Hospital July to September 2010.

In 2009, Plaintiff perforated a patient’s bowel five times at Mission Hospital.  A Medical Executive Committee (“MEC”) voted to suspend Plaintiff’s privileges and recommend to the governing board that his application for reappointment be denied.  After evidentiary hearings, on April 22, 2014, the Judicial Review Committee issued a decision which both Plaintiff and MEC appealed.  The appeal was before the Mission Appellate Committee and they confirmed the suspension and denied his application for reappointment.  Mission Hospital then reported the peer review activities to the California Medical Board and National Practitioner Data Bank.

In July 2010, Plaintiff started with St. Joseph and the first six surgeries resulted in devastating patient injuries.  St. Joseph’s MEC voted to terminate and suspend privileges.  There were hearing and appeals, then a settlement.  St. Joseph then reported its peer review activities to the California Medical Board and NPDB. 

 On November 25, 2015, Plaintiff filed a lawsuit against 8 doctors, two hospitals and medical staff for conspiracy to retaliate through peer review.  The amended pleadings raised statutory retaliation/whistleblower claims.

Procedural Posture

On June 12, 2015, the trial court granted Defendants’ anti-SLAPP motion, deciding the gravamen of the cause of action “is based on defendants’ protected peer review activities.”  The Court of Appeal reversed on the following basis:

“plaintiff's retaliation claim under the whistleblower statute arose from defendants' alleged acts of retaliation against plaintiff because he complained about the robotic surgery facilities at the hospitals, and not from any written or oral statements made during the peer review process or otherwise. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion. This case is no exception. Accordingly, defendants' motion to strike fails on prong one of the anti-SLAPP test and we reverse the order granting defendants' motion.”

Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851, 855.         

Defendants’ petitioned for review in the California Supreme Court.

Anti-SLAPP Generally

These motions are brought under Code of Civil Procedure section 425.16 and the legal standard as two steps:

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

The 1992 statute was added to curtail “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitution rights of freedom of speech and petition for the redress of grievances.”  Id. at subsection (a).

Oral Arguments

 The Justices attending the May 5, 2021 oral arguments were as follows:

• Justice Groban
• Justice Cuellar
• Justice Corrigan
• Chief Justice Cantil-Sakauye
• Justice Liu
• Justice Kruger
• Justice Jenkers

Only Justice Corrigan failed to partake in the oral arguments, which extended approximately one hour without any decision. 

Overall, the Supreme Court’s questioning indicated it is leaning toward affirming the Court of Appel and reversing the order granting the motion to strike, in other words deciding in Plaintiff’s favor.  For example:

• Justice Jenkins stated “it’s hard to concede that a suspension decision itself is deserving of the broad protection you’re advocating for” when addressing Defendants’ counsel and stating “you cobbled together a lot of decisions.”
• Justice Kruger stated “is your argument any act subject to mandatory reporting is in furtherance of petitioning” and consequently be protected by anti-SLAPP, which Defendants’ counsel conceded by answering “yes.”  Justice Krueger then commented “that seems quite broad.  You can imagine all types…” of mandatory reporting that could later be incorporated under anti-SLAPP if the trial court was upheld.
• Chief Justice Cantil-Sakauye mentioned that “Government requires hundreds of thousands of types of mandatory reporting” indicating that extending anti-SLAPP to the instant case would be very expansive.
• Justice Liu inquired “do I follow this correctly that you’re saying because the reporting is mandated, then the acts being reported are covered, because those acts set in motion the report.”  Defendants’ counsel answered “yes.”  Justice Liu then stated “that is a very very very broad theory.”  He then drew an analogy to mandatory reporting of police use of force instances and appeared troubled about extending anti-SLAPP in that parallel context.
• Justice Liu inquired about whether affirming the trial court would extend anti-SLAPP protections when universities mandatory report sexual assault and whether the university would then be protected for negligent supervision theories down the road.

After the hearing, it is anticipated that the Supreme Court will affirm the decision of the Court of Appeal, that there is no wholesale anti-SLAPP protection for the hospital’s peer review processes under anti-SLAPP when intertwined with allegations of employment retaliation.