August 26, 2021
The California Medical Association (CMA) achieved an important victory in an important case before the California Supreme Court that will have lasting ramifications on how courts treat legal claims of retaliatory or sham peer review. In Bonni v. St Joseph Health System, the court adopted the practical, balanced position advocated by CMA in its amicus curiae brief, which will ensure protection for physicians on both sides of the peer review process and preserve the maintenance of high professional standards and the protection of patient welfare.
CMA's brief sought to provide the court with a practical, realistic depiction of the problems with the peer review system (including the real problem of sham peer review) and present a solution that can best protect physicians’ due process rights, while also insulating medical staffs and Medical Executive Committees (MECs) from harassing, frivolous lawsuits that could chill the important medical staff self-governance function of utilizing peer review to discipline physicians and ensure quality medical care and patient safety.
The case arose out of peer review proceedings and investigations at two St. Joseph’s hospitals in Orange County that resulted in Aram Bonni, M.D., losing his privileges. Dr. Bonni alleged the terminations were the result of retaliation after he raised concerns about patient safety with the hospitals’ surgical robotic equipment and support staff. He sued the hospital as well as the medical staff and individual MEC members involved in his peer review. His lawsuit was met with a motion to dismiss under California’s anti-SLAPP statute, which is intended to protect defendants from harassing litigation that attacks constitutionally protected activities.
The California Supreme Court long ago had held that hospital peer review proceedings are state-sanctioned official proceedings that qualify as protected activities under the anti-SLAPP statute. This means that lawsuits challenging peer review actions must satisfy the anti-SLAPP statute’s requirements – the plaintiff must present a “prima facie” case or some facts showing that retaliation occurred. The anti-SLAPP statute is a powerful tool that affords important protections to medical staffs and MECs against vexatious litigation by disgruntled physicians. It also, however, is a tool of abuse that can be used to insulate hospitals and medical staffs that utilize the peer review process to retaliate against physicians.
The court concluded that peer review is a protected activity under the anti-SLAPP statute, but that those protections are limited to speech and petitioning activity taken in connection with peer review. The court embraced the balanced position described in CMA's amicus brief, stating that while the anti-SLAPP statute applies to alleged statements made in a peer review proceeding and to the required reporting of any decision to the Medical Board of California and the National Practitioner Data Bank, anti-SLAPP protections do not apply to final disciplinary decisions.
The court reasoned that such disciplinary decisions are disconnected from speech and petitioning activities for purposes of anti-SLAPP protections. The court's decision provides the kind of clear rule advocated for by CMA, one meant to protect medical staffs and MECs from harassing litigation while also giving physicians who claim to be victims of sham peer review their day in court.