BEDSWORTH, Acting P. J. —
It is important to emphasize at the outset that this is not an administrative mandate case following an evidentiary hearing terminating a physician's hospital privileges. This is not a case where a physician is claiming that violations of fair procedure or lack of substantial evidence requires a court to set aside some hospital discipline taken after peer review proceedings. In such a case the standard of review would be highly favorable to the hospital. (See Fahlen, supra, 58 Cal.4th at p. 673.) But this case arrives here by way of an anti-SLAPP motion — sans evidentiary hearing. Accordingly, we resolve conflicts and inferences in the record in favor of plaintiff. (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 347-348 [192 Cal.Rptr.3d 511].)
Here, the peer review process was not completed. If there is a spin to our statement of facts, it is because we must credit plaintiff's evidence in opposition to the anti-SLAPP motion where it conflicts with that of defendants. In such motions, "The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385 [205 Cal.Rptr.3d 475, 376 P.3d 604] (Baral).)
With that in mind, we set out the chronology of events leading to this appeal, which subdivides itself into four distinct phases:
Armin complained to RCH's CEO in late 2010 and early 2011 about being dropped from the call schedule. He also informed the CEO that emergency room physicians and nurses had informed him Douglas and Clark "often refused to see patients in the middle of the night and postponed their evaluation of emergency room consults to the next day, thus hurting the quality of care provided at the hospital." Armin also told the CEO that it was against the law for the hospital "to give RNA the exclusive right to provide call coverage for the hospital's patients."
During this same period Clark demanded that Armin's access to the neurosurgical operating room on Mondays be terminated, so Clark could have the room for his own patients that day. The result was that Armin had to start operating on Fridays, which presented an obvious conflict in the event he was
Douglas's letter caused Nagappan to schedule a meeting of the SQRC for March 7. By this time — though the record is not clear precisely how — three instances of alleged malpractice on Armin's part had doubled to six.
The March 7 meeting was put over a week, apparently to accommodate a religious holiday.
Preliminary to his defense of the merits of the six cases, Armin outlined the history of his unhappy relationship with Douglas and Clark. Included was a reiteration of Armin's insistence that the de facto control of the surgery call panel at RCH by Douglas and Clark was against the law and that patients sometimes require more urgent nighttime care than Douglas and Clark were willing to provide. The hearing, which threatened the possibility of summary suspension, prompted Armin to cancel three surgeries scheduled for March 14.
According to Armin, he misunderstood the protocol for the March 14 meeting, and did not show up when it was scheduled to begin because he thought the committee would first deal with his own complaints against the
The next step was an MEC meeting held March 21. Armin did show up for this one. He was told one of the six cases of alleged malpractice was being dropped, but after Armin was "dismissed" (his word) from the meeting, the MEC summarily suspended his privileges at RCH.
At this point the briefing and record become problematic in explaining the remainder of the peer review proceedings. What is clear, however, is that, on appeal, the hospital admits Armin is still entitled to a full evidentiary hearing in front of the JRC on the five remaining alleged instances of malpractice. Further, Armin has timely requested such a hearing.
And that's where the trail ends in this case's third phase — with a still-to-be completed JRC hearing. In fact, we are told in the hospital's respondent's brief that Armin's peer review hearing "was still in its preliminary stages at the time" he filed "this claim" in November 2012.
(4) Late 2012 to Present: The period of litigation. On November 12, 2012, Armin filed this action. The hospital responded with an anti-SLAPP motion and demurrers. A commissioner heard those matters in May 2013. Commissioner Durand-Barkley determined the anti-SLAPP motion should be granted as to the section 1278.5 cause of action because she believed Armin had not exhausted his administrative remedies given the unfinished peer review process. She also ruled the demurrer to the section 1278.5 action was moot.
In July, retired Judge Argento formally incorporated the commissioner's rulings into a court order and awarded the hospital $12,440 in attorney fees. Armin timely appealed from the order to the degree it struck his section 1278.5 cause of action and awarded fees. The hospital cross-appealed from the order to the degree it denied the request to strike the religious discrimination claims.
A. The Relationship of Peer Review and Section 1278.5 Claims
1. The Fahlen Decision
Seldom does an appeal present in sharper relief a dispute over the meaning and scope of a California Supreme Court opinion. In Fahlen, supra, 58 Cal.4th 655, a doctor asserted substandard care was provided by certain nurses, culminating in a series of "disruptive interactions" with them. (Fahlen, supra, 58 Cal.4th at p. 662.) Disciplinary proceedings against the doctor proceeded through the MEC stage to the JRC stage and all the way to the board stage. The board reversed an exoneration by the JRC. The result was that the board found the doctor's "`abusive and contentious behavior'" toward hospital staff "inappropriate," and terminated his privileges. (Id. at pp. 663-664.) The doctor then filed a section 1278.5 action (along with other causes of action) against the hospital without first bringing a civil action in administrative mandate. (See Code Civ. Proc., § 1094.5.) As in the present case, the hospital filed both an anti-SLAPP motion and demurrers. The appellate court upheld the trial court's refusal to grant the anti-SLAPP motion as regards the section
The Fahlen court framed the issue meticulously, and its research and analysis was nothing less than exhaustive. The Fahlen opinion is a tour de force analysis of the interaction between section 1278.5 and the peer review process. Since the issues before us are closely related, it is worth careful recounting of Fahlen's analysis.
The law prior to Fahlen, as stated in Nesson, was that a physician had to exhaust the peer review process and then also successfully challenge that internal administrative result in a judicial mandamus proceeding before bringing a section 1278.5 claim. (See Nesson, supra, 204 Cal.App.4th at pp. 84-85.) For that result, Nesson relied on Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake), which was decided more than two decades prior to the enactment of section 1278.5.
Nesson specifically relied on Westlake to hold that a physician denied reappointment at a hospital after a summary suspension was required to exhaust the internal peer review process before bringing — among other claims — a section 1278.5 action. (See Nesson, supra, 204 Cal.App.4th at pp. 84-85 [citing or quoting Westlake three times in quick succession].) In that reliance, Nesson cited Westlake for a straightforward two-step rule: A physician must (1) complete the internal peer review process and (2) bring an
Fahlen began with a thorough review of previous Supreme Court precedent bearing on the topic of administrative exhaustion under whistleblower statutes other than section 1278.5. (See Fahlen, supra, 58 Cal.4th at pp. 668-675, primarily discussing Westlake, supra, 17 Cal.3d 465 [both internal and judicial exhaustion required before physician could challenge termination of staff privileges]; Campbell v. Regents of University of California (2005) 35 Cal.4th 311 [25 Cal.Rptr.3d 320, 106 P.3d 976] [because there was no evidence of statutory intent to displace common law rule requiring administrative exhaustion, state architect was required to file administrative complaint before proceeding with civil whistleblower action]; State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 [89 Cal.Rptr.3d 576, 201 P.3d 457] (Arbuckle) [judicial exhaustion not required where relevant statute required complaint with state personnel board but no comment on requirement of judicial mandamus]; and Runyon v. Board of Trustees of California State University (2010) 48 Cal.4th 760 [108 Cal.Rptr.3d 557, 229 P.3d 985] (Runyon) [following Arbuckle, judicial exhaustion not required].)
After its review of the existing case law, the Fahlen court focused on section 1278.5 specifically. Fahlen first noted the previous decisions involved statutes which themselves imposed, either impliedly or expressly, requirements of exhaustion before "an administrative body." (Fahlen, supra, 58 Cal.4th at p. 676.) It noted that, in contrast, section 1278.5 has no such requirement. (Fahlen, at p. 676.)
The distinction was bolstered by the high court's allusion to a point made in at least two of its earlier decisions (Arbuckle and Runyon), to the effect that a prerequisite of a judicial mandate proceeding would seriously compromise the legislative purpose of whistleblower statutes. Such proceedings are very hard to win if the hospital's procedures are fair. (Fahlen, supra, 58 Cal.4th at p. 678.)
Then came the coup de grace, found in Fahlen's dissection of the legislative history of section 1278.5 — especially the amendments of 2007 that added subdivision (h) to the statute in its current form: "The legislative history of section 1278.5, subdivision (h) is consistent with a conclusion that the Legislature did not intend to require postponement of a section 1278.5 action even while peer review proceedings against the plaintiff were still in progress, let alone until the final peer review decision had been set aside by mandamus." (Fahlen, supra, 58 Cal.4th at p. 680, italics added.)
The legislative history to which the court alluded is important for our purposes because it demonstrates a harmony between the raw text of subdivision (h) and the Legislature's intent in writing the text the way it did. Section 1278.5 is a relatively recent statute, having been enacted in 1999. (Stats. 1999, ch. 155, § 1, p. 2053.) In 2007, the Legislature extended its coverage to hospital staff physicians. (See Fahlen, supra, 58 Cal.4th at p. 679.) With the 2007 amendments came new subdivision (h), which is so critical here.
The Fahlen court's own shorthand paraphrase of subdivision (h) asserts a view of subdivision (h), with which we find reassuring: The Legislature was obviously contemplating the possibility that section 1278.5 actions could happen at the same time as hospital peer review proceedings. In addition to what we have already quoted, the court said: "Under this provision, a hospital's medical staff may petition the court for an injunction, pending
It was precisely that idea — that section 1278.5 actions and peer review proceedings "might coexist simultaneously" — that triggered CHA to try to get the Legislature to change its mind about subdivision (h). The story of the legislative battle between the proponents of the 2007 amendments and their major opponent, the CHA, goes on for about three pages in the opinion. (Fahlen, supra, 58 Cal.4th at pp. 680-682.) Its conclusion is a clear recognition of legislative intent not to require completion of peer review disciplinary proceedings before the filing of a section 1278.5 action.
The CHA, according to a Senate Judiciary Committee analysis, "was concerned that extension of whistleblower protection to hospital staff physicians would have a chilling effect on peer review proceedings, because `the bill could stop a peer review process in its tracks by the simple filing of a section 1278.5 action....,' or `could compel a peer review committee to not initiate a peer review process for fear that it could be considered a retaliatory action....'" (Fahlen, supra, 58 Cal.4th at p. 680, italics added & omitted, quoting Sen. Com. on Judiciary, Analysis of Assem. Bill No. 632 (2007-2008 Reg. Sess.), as amended June 6, 2007, p. 9.) So the committee analysis addressed the danger of evaporation of the usual "`protections and immunity'" afforded a "`pending peer review action'" if a section 1278.5 proceeding was allowed to proceed at the same time. (Fahlen, supra, 58 Cal.4th at p. 680, italics added.)
The Legislature did indeed respond to the CHA's worry that peer review proceedings might indeed be considered retaliatory action under section
Unsatisfied, the CHA redoubled its efforts, expressing concern that peer review would be "`significantly undermined'" if a physician could "`move directly into court without completing the fair hearing process.'" (Fahlen, supra, 58 Cal.4th at p. 681.) The CHA also proposed an amendment that would have stated section 1278.5 does not apply to any peer review disciplinary action "`unless and until'" the physician had "`substantially prevailed in such action as specific in current law.' [Citation.]" (Fahlen, at p. 681, italics omitted.)
Again the Legislature rebuffed the CHA. (Fahlen, supra, 58 Cal.4th at pp. 681-682.) Instead of adopting the position the hospital now advocates — that the physician must substantially prevail in the disciplinary proceedings as a prerequisite to a section 1278.5 action — the Legislature just added a new subdivision (l) to section 1278.5. And subdivision (l) merely said section 1278.5 is not to be construed to — and the italics are the Supreme Court's own here — "`limit the ability of the medical staff to carry out its legitimate peer review activities'" in accordance with the peer review statutes, Business and Professions Code sections 809 through (at the time) 809.5. (Fahlen, supra, 58 Cal.4th at p. 681, quoting § 1278.5, subd. (l), Assem. Bill No. 632 (2007-2008 Reg. Sess.), as amended in Sen., Sept. 5, 2007.)
The CHA plunged once more into the breach, this time explicitly arguing that subdivision (h) was still "not good enough" because — and the CHA's way of reading the subdivision was revealing — "it `does not ... address the real issue, which is allowing someone to get into court on a retaliation claim while a peer review action is either still in the investigatory stage[,] ... or underway, ... but the hearing/appeal is not yet completed and the [hospital's] governing body has not yet taken final action.'" (Fahlen, supra, 58 Cal.4th at p. 682, italics added, quoting David van der Griff, CHA Legis. Advocate, CHA, Assem. Floor Alert regarding Assem. Bill No. 632 (Sept. 10, 2007) p. 2.)
Again the CHA's efforts were in vain. "[T]he Legislature made no changes in response to the CHA Assembly Floor Alert." (Fahlen, supra, 58 Cal.4th at p. 682.) The Fahlen court then described what the Legislature did — better
The Fahlen court's reading of subdivision (h) was thus more than enough to dispose of the main issue before the high court. If Dr. Fahlen might have brought a section 1278.5 action while first-step peer review proceedings were "underway," then a fortiori he need not have prevailed in a second-step judicial mandamus action in order to file a section 1278.5 action. (Fahlen, supra, 58 Cal.4th at p. 682.) In the process the court disapproved Nesson — which clearly did require a successful judicial mandate action prior to a section 1278.5 action — to the "extent" it was "inconsistent with our conclusion." (Fahlen, at p. 687.)
2. The Plain Text of Section 1278.5
To be sure, as noted above, Fahlen does not actually hold that internal administrative exhaustion of peer review proceedings do not apply to a section 1278.5 action — though it seems to us to come about as close as possible to doing so without actually saying so. But for appellant hospital, everything Fahlen said about subdivision (h) is mere "dicta" because the grant of review "limited the issue" to whether a physician was required to prevail in judicial mandate proceedings prior to commencing a section 1278.5 action. (See Fahlen, supra, 58 Cal.4th at p. 666.) In fact, appellant hospital even goes on to take issue with the way the Supreme Court read subdivision (h), asserting the high court read it too expansively. Accepting arguendo their argument the court's analysis was dicta and we have the power to disagree, we find nothing to disagree with.
First of all, even if what the Supreme Court said was, technically, dicta, that dicta still reflects persuasive research, handed to us on a platter. And second, even if all we had was the naked text of section 1278.5, that text would draw us to the same conclusion as the Fahlen dicta.
And then comes subdivision (h), which is not only obviously predicated on the existence of an ongoing court action, but also envisions the possibility of a simultaneous peer review proceeding. "The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on a pending peer review hearing from the member of the medical staff who has filed an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process. Prior to granting an injunction, the court shall conduct an in camera review of the evidence sought to be discovered to determine if a peer review hearing, as authorized in Section 805 and Sections 809 to 809.5, inclusive, of the Business and Professions Code, would be impeded. If it is determined that the peer review hearing will be impeded, the injunction shall be granted until the peer review hearing is completed. Nothing in this section shall preclude the court, on motion of its own or by a party, from issuing an injunction or other order under this subdivision in the interest of justice for the duration of the peer review process to protect the person from irreparable harm." (§ 1278.5, subd. (h), italics added.)
The hospital counters this analysis by arguing that the correct reading of subdivision (h) still excludes the possibility of simultaneous peer review proceedings and section 1278.5 actions for physicians who are themselves the object of peer review proceedings. According to the hospital, subdivision (h) only refers to those instances where Doctor A has brought a section 1278.5 action and needs the evidence of Doctor B where Doctor B is at the same time the subject of peer review proceedings. In such an instance, says the hospital, there is no need for exhaustion of Doctor B's peer review proceedings in order for Doctor A's section 1278.5 action to proceed. On the other hand, says the hospital, if Doctor A is himself or herself the object of peer review proceedings, Doctor A is still required to complete the peer review proceeding before bringing a section 1278.5 action.
There are two reasons this argument is unpersuasive. Most obviously, there is nothing in the text of subdivision (h) that makes any sort of distinction between classes of section 1278.5 plaintiffs. The hospital's argument amounts to reading into the statute an implied differentiation between "good" section 1278.5 plaintiffs who do not personally face peer review proceedings, and "bad" section 1278.5 plaintiffs who do. We cannot find a basis for such differentiation.
The second reason is, ironically, found in the one item of text on which the hospital relies here: the use of the indefinite article "a" in subdivision (h) as in the phrase "evidentiary demands on a pending peer review hearing from the member of the medical staff who has filed an action pursuant to this section." (Italics added.) The hospital argues the use of the word "a" as in "a
3. Policy Arguments
A continuing leitmotif in the hospital's briefing is sheer revulsion at what the hospital considers the self-evident absurdity of a doctor who is himself or herself the object of peer review disciplinary proceedings being able to de facto retaliate against medical staff for having brought a peer review disciplinary action in the first place — a kind of retaliation for a perceived retaliation. For the hospital, the idea of doctors having such a power is just incomprehensible and, so the hospital concludes, the Legislature could not have possibly intended such a result.
In that regard, we should say that two points demonstrate the Legislature's choice was not only rational, but also makes positive sense. The first is that the Legislature's essential focus in both peer review proceedings and in section 1278.5 actions is to protect the public, not the reputation of either hospitals or individual doctors. As the Fahlen court noted, the "common aim of both schemes" is the "safe and competent care of hospital patients." (Fahlen, supra, 58 Cal.4th at p. 684.) And to protect patients, it makes perfect sense to allow everybody's dirty linen to be aired as soon as possible, not just the complaining doctor's.
4. Application to the Facts at Hand
In the present case, it is clear that Armin has indeed made the necessary prima facie showing of retaliation required by section 1278.5. The salient event for Armin's section 1278.5 claim is not the March 12 letter; Armin's section 1278.5 whistleblowing claim is based on his December 2011 conversation with the hospital's COO in which he complained about Douglas' and Clark's lackadaisical approach to urgent care. He alleged they would sometimes delay treatment or transfer patients for their own convenience.
The hospital may be able eventually to demonstrate that its instigation of peer review proceedings against Armin was perfectly legitimate and not in any way pretextual. Or perhaps the case will be shown to be one of "mixed motives." (See generally Harris v. City of Santa Monica (2013) 56 Cal.4th 203 [152 Cal.Rptr.3d 392, 294 P.3d 49] [exploring problem of dual motives, one lawful and the other unlawful].) However, given the standard of review on anti-SLAPP motions, we must indulge Armin's evidence the peer review was instigated in retaliation for his complaints about Douglas and Clark and was founded on flimsy and insubstantial allegations of malpractice on Armin's part.
5. The Federal Preemption Argument
As did the hospital in Fahlen, the hospital here claims immunity from section 1278.5 proceedings by virtue of a federal statute immunizing hospitals from damage claims arising out of peer review proceedings, namely the Health Care Quality Improvement Act of 1986 (HCQIA) found at 42 United States Code section 11101 et seq.
Fahlen had something to say about the HCQIA argument too, though we note the hospital's brief makes no attempt to come to grips with what Fahlen
B. Claims Against Individual Physicians Under Section 1278.5
Subdivision (d)(2) likewise defines retaliatory treatment, albeit nonexclusively, in terms of the sorts of things only a facility can do, like imposing "unfavorable changes" in working conditions. Subdivision (g), listing remedies, parallels subdivision (d)(1)'s listing of retaliatory actions, and again identifies remedies of the sort that can only be imposed on a facility qua facility, such as "reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer." Finally, none of the other subdivisions — except the one we are about to discuss — contain any hint of liability for individual doctors.
The exception is subdivision (i). To impose liability on individual doctors, Armin relies entirely on subdivision (i), which defines, for purposes of section 1278.5, "health facility" to mean "any facility defined under this chapter, including, but not limited to, the facility's administrative personnel, employees, boards, and committees of the board, and medical staff." (Italics added.) Stressing the words "medical staff," Armin posits that the statute allows suits against individual doctors on the medical staff.
Case law likewise reflects the fact hospitals typically define "medical staff" to encompass the entire corpus of physicians who enjoy privileges at the facility. (See Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 691 [147 Cal.Rptr.3d 376] [bylaws defined "medical
The phrase medical staff is thus a uniplural entity, like church or team or jury.
There are three separate reasons we reject this argument and conclude that by "medical staff" the Legislature meant the uniplural corporate body, which brings peer review proceedings against individual members of that "medical staff" rather than individual staff members. Reason one is a variation on that old statutory canon, ejusdem generis, which is pedantry for: Pay attention to the kinds of things that are listed in a series. Here, if we pay attention to the entities identified in subdivision (i) that make up the definition of "facility," we find they all have this in common: They are all means by which a hospital acting as its own legal person might retaliate against a complaining doctor, nurse or patient.
In particular, the "medical staff" is the entity (singular) in whose name peer review proceedings under sections 805 through 809.7 of the Business and Professions Code are brought. Business and Professions code section 809, subdivision (a)(8) — a statute antedating section 1278.5 — speaks of medical staffs in their corporate, uniplural sense.
But the most basic reason to construe "medical staff' not to mean "members of the medical staff" is to further the legislative intent which engendered section 1278.5 in the first place. The idea was to protect doctors who spotted problems with hospital patient care or conditions. Applying section 1278.5 liability to individual doctors could greatly complicate the achievement of that purpose.
Peer review proceedings are not just potential instruments of retaliation. They can also be the instrument by which alarms about patient care can be aired. Thus doctors Douglas and Clark have the same right to be whistleblowers about Armin's allegedly substandard care that Armin has to be a
C. The Religious Discrimination Claims
Armin's religious discrimination causes of action survived defendants' anti-SLAPP motion, and that survival is the subject of a cross-appeal by the hospital. In denying the anti-SLAPP motion, the trial judge noted the obvious: According to Armin, Douglas and Clark attempted to use Armin's religion against him by imposing on him assignments incompatible with Jewish holidays long prior to any allegations of malpractice made against him. The court thus concluded Armin's religious discrimination claims do not come within prong one of anti-SLAPP analysis, and hence were not vulnerable to an anti-SLAPP motion.
The hospital does not attempt to argue that vexatious scheduling is itself protected activity under Code of Civil Procedure section 425.16 — an obviously untenable position. Rather, it argues that because Armin's claims here are somehow "intertwined" with, the "same facts and circumstances currently being evaluated in hospital peer review proceedings," there is a sufficient connection between those claims and the peer review proceedings themselves to bring his religious discrimination claims within the anti-SLAPP statute.
We reject the argument because it is predicated on a putative "intertwining" which we cannot find. All of the vexatious scheduling at issue occurred prior to the January 2012 initiation of the peer review proceeding. Scheduling aimed at incommoding Armin's desire to observe the Jewish holidays implicates conduct outside of what the anti-SLAPP statute protects: peer review proceedings as "official proceedings" under Kibler. It makes no difference that Armin first brought his complaints about vexatious scheduling to light in his March 12 letter that also involved his defense of the malpractice claims in the context of a peer review proceeding. In terms of anti-SLAPP analysis, Armin could just as easily have filed a complaint concerning his religious claims without first making any complaint to hospital management. (See Payne, supra, 130 Cal.App.4th at p. 739 [internal peer review process did not give physician who alleged race discrimination by hospital the right to do more administratively than just complain; physician's remedy was in court].)
This prong one determination is sufficient for affirmance of the trial court's judgment as it pertains to the religious claims. We therefore do not reach the hospital's arguments that Armin's religious claims are otherwise susceptible to dismissal on the merits, and we express no opinion as to what might happen if the hospital brought a summary judgment motion.
The formal order of July 15, 2013, striking Armin's section 1278.5 action and awarding attorney fees to the hospital, is hereby reversed with directions to enter a new order denying the motion to strike the section 1278.5 action and denying the hospital's request for attorney fees in conjunction with its anti-SLAPP motion. At this point we echo the Fahlen court's observation that trial courts may have several tools, such as stay or delay, to insure that a section 1278.5 action does not indeed interfere with the peer review proceedings. (See Fahlen, supra, 58 Cal.4th at pp. 684-685 [suggesting several possibilities as to how trial court's might accommodate both § 1278.5 actions and peer review].) We leave to the trial court further questions as to whether Armin's section 1278.5 action should or should not be stayed or delayed pending the completion of the peer review proceeding. On the other hand, the trial court's order is affirmed to the degree that it denies the hospital's motion to strike Armin's religious discrimination claims. Armin will recover his costs on appeal.
Ikola, J., and Thompson, J., concurred.
Unless the context otherwise requires, we will refer to all defendants collectively as "the hospital." When speaking of Riverside Community Hospital in particular, we will use the initials used by the parties, "RCH." Though Douglas and Clark, and Dozier and Nagappan filed their own respondent's briefs, when we speak or cite to the "respondent's brief" we refer to the brief of RCH, which has carried the laboring oar of defendants' arguments on appeal. Douglas and Clark also operate their own entity, known as "Riverside Neurosurgical Associates," which the parties refer to by the initials RNA.
Readers should note that in part III.B. of this opinion we must particularly differentiate "the hospital" and RCH from the individual doctors, Dozier, Nagappan, Douglas and Clark. When referring to plaintiff's claims against doctors Dozier, Nagappan, Douglas and Clark individually, we will refer to them as the "four individual doctor defendants." Further, in the lexicon of hospital peer review disciplinary proceedings, "MEC" stands for "medical executive committee," "SQRC" for the "surgical quality review committee," and "JRC" for the "judicial review committee." The MEC and JRC acronyms are common in the case law in the area. (E.g., Fahlen, supra, 58 Cal.4th at p. 663; Sadeghi v. Sharp Memorial Medical Center Chula Vista (2013) 221 Cal.App.4th 598, 602, 608 [164 Cal.Rptr.3d 420]; Michalski v. Scripps Mercy Hospital (2013) 221 Cal.App.4th 1033, 1035 [164 Cal.Rptr.3d 8521.) SQRC, by contrast, makes its debut in this case.
And since we are already swimming in alphabet soup, a few more acronymic definitions are in order: "CHA" stands for the California Hospital Association, the hospitals' trade association, which played a major — if ultimately losing — role in the legislative history leading up to section 1278.5, subdivision (h). "CMA" stands for the "California Medical Association," which is the doctors' trade association and the nemesis of the CHA in the 2007 effort to amend section 1278.5.
That takes care of prong one of the traditional anti-SLAPP two-prong analysis. We therefore proceed directly to prong two: whether the plaintiff has shown "minimal merit" in opposition to the defendant's anti-SLAPP motion. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [124 Cal.Rptr.2d 530, 52 P.3d 703] ["Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute."].)
Both hypotheticals seem fairly strained to us. The natural implication of allowing doctors to be section 1278.5 plaintiffs — which was the whole point of the 2007 amendments in the first place — is to protect doctors from retaliation.
There is also the matter of Douglas's and Clark's alleged monopoly control over RCH's call schedule. At first blush, that seems more a matter of economics than medicine. However, again, on this record we will assume such monopolization has at least an indirect impact on actual patient care, in that it might deny patients access to urgently needed brain surgery or evaluations by limiting the number of doctors available.
Moreover, given the statutory presumption, we think it makes no difference at this stage of the litigation that Armin has yet to find a smoking gun in the form of evidence that Douglas and Clark were told of Armin's complaints to the COO the month prior to the initiation of the proceedings. It is a reasonable inference, given the closeness of the sequence, that they found out somehow about his complaints about them.