Opinion
G036784
12-11-2006
FERNANDO E. SILVA, Plaintiff and Respondent, v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN et al., Defendants and Appellants.
Fulbright & Jaworski, Robert M. Dawson, Mark A. Kadzielski and Brandon C. Fernald, for Defendants and Appellants. Law Offices of Theresa Barta and Theresa J. Barta for Plaintiff and Respondent.
Defendants Hoag Memorial Hospital Presbyterian, its board of directors, medical executive committee, and various individuals (collectively Hoag), all of whom were involved in a review of plaintiff Fernando Silva, M. D.s professional competency, appeal from the denial of their motion to dismiss his lawsuit. Hoag argues that Silvas complaint, which seeks injunctive relief and damages stemming from Hoags decision to "censure" him and place him on probation, constitutes a Strategic Lawsuit Against Public Participation — or what is more commonly referred to as a SLAPP action.
The trial court denied the motion, concluding the anti-SLAPP statute does not apply to Silvas claims. But our Supreme Court has recently held that a medical staff peer review process qualifies as an "official proceeding authorized by law" to which the anti-SLAPP statute applies, so the argument cannot be rejected out of hand. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192.) Moreover, we conclude that each of Silvas causes of action is based upon the content of Hoags speech — either statements made about Silva in the course of the peer review process, or its unflattering result. Stated simply, Silva would not be here if the result of Hoags process — however deficient — had been laudatory. So the first prong of the anti-SLAPP analysis has been satisfied.
As the trial court reached no decision regarding the second prong of the anti-SLAPP analysis; i.e., whether Silva demonstrated a probability of prevailing on the merits of his claims, we remand the case for a determination of that issue.
* * *
Silvas complaint alleges he is a duly licensed and board-certified neurosurgeon, and of Latino ancestry and origin. He was granted a temporary appointment to Hoags medical staff in January of 2001, and became an active staff member in March of 2001. In July of 2002, Silva submitted his application for reappointment for two years in accordance with the medical staff bylaws.
Although the medical executive committee (MEC) initially recommended Silvas reappointment, an unidentified person sent a letter to the chairman of Hoags neurosurgery department, recommending a further review of Silvas cases. The letter suggested that Silvas cases demonstrated a possible pattern or trend toward excessive surgery times and complications. In response to the letter, the MEC decided to create an ad hoc committee to review Silvas surgical times and complications. Silvas reappointment to the medical staff was approved for only six months, rather than the usual two years.
The ad hoc committee appointed to review Silvas cases included three neurosurgeons: two who were allegedly competitors of Silva, and one who Silva feels lacked both Silvas board certification and his expertise. The committee reviewed seven of Silvas cases: the three initially complained about plus four others. The committee also requested that Silva submit written responses to its questions; he did so, and thereafter met with the committee in person.
The committee concluded its review in June of 2003, and allegedly made no recommendations that any formal action be taken against Silvas medical staff privileges. The committee concluded none of Silvas actions or cases warranted reprimand, censure or formal restriction on his privileges. On the other hand, the committee commented on Silvas "lack of judgment and flawed surgical skills." The committee allegedly recommended that Silva "[a]mplify [his] chart documentation of each patients findings and any related events in the hospital course and in the operating room . . . ." and that Silvas performance be re-evaluated at the end of six months.
Silva alleges the MEC rejected the ad hoc committees recommendation that Silva should merely continue his current voluntary performance of specific cases in tandem with other active staff members; it decided instead to impose requirements that would, in effect, restrict Silvas medical staff privileges. Hoags chief of staff notified Silva that if the MECs decision were upheld by Hoags board of directors, a report would be filed with the Medical Board of California and the national practitioner data bank. Shortly thereafter, Silva was notified that he had been reappointed to the medical staff for a six-month period, without limitations or restrictions.
Silva alleges he promptly requested a hearing to challenge the MECs decision and requested discovery, in accordance with procedures set forth in the medical staff bylaws. The Hoag defendants resisted the discovery requests.
While the parties were negotiating the discovery issue, Hoag notified Silva that a five-member judicial review committee (JRC) had been appointed. That committee allegedly included no neurosurgeons, despite the fact the medical staff bylaws mandated that a JRC should include at least one member practicing in the same specialty as the physician under review. Although Silva requested a neurosurgeon be included on the JRC, and even identified two candidates, the Hoag defendants allegedly refused.
Silva alleges the "Notice of Charges" to be reviewed by the JRC identified the very same cases reviewed by the original ad hoc committee, on which it had recommended no formal action be taken.
In October of 2003, while the parties were still wrangling over discovery issues relating to the JRC hearing, Silva was offered a fellowship at Northwestern University, to begin in January of 2004. Silva notified Hoag he intended to accept the fellowship. Shortly thereafter, Hoag allegedly notified Silva the MEC had "reconsidered the corrective action recommendations" it had made regarding Silva, and decided (1) to replace them with a "letter of censure" for the "patient care deficiencies" described by the ad hoc committee; and (2) to place Silva on "indefinite probation," with certain conditions. Hoag further informed Silva that since the MECs new recommendations did not actually restrict Silvas exercise of clinical privileges, he was no longer entitled to a JRC hearing pursuant to the medical staff bylaws.
Silva alleges the Hoag defendants actions were in violation of the medical staff bylaws, and have damaged his reputation, economic interests and career. Specifically, he alleges he was obligated to disclose the censure and its content to the Medical Board of Texas when he applied for a license to practice in that state, and the information prevented him from commencing employment in a timely fashion.
Silva also alleges that certain unnamed Hoag physicians made false and defamatory statements regarding him and his reasons for accepting his fellowship. He asserts that one or more of the Hoag defendants disclosed private and confidential information relating to the peer review process.
Silvas complaint includes causes of action for injunctive relief, violation of due process, violation of hospital bylaws, intentional and negligent interference with prospective economic advantage, intentional infliction of emotional distress, defamation, violation of rights to privacy and confidentiality, unfair competition, and racial discrimination in violation of the Unruh Act. He seeks relief in the form of an order requiring the Hoag defendants to (1) rescind their "censure" and imposition of probation against him; and (2) expunge the letter of censure and any other evidence of the censure from his credentials file. He also asks for damages, including punitive damages.
Rather than filing an answer to Silvas complaint, the Hoag defendants filed, concurrently, both a demurrer and a motion to strike the complaint as a SLAPP action. In support of the latter, Hoag argued that Code of Civil Procedure section 425.16, the anti-SLAPP statute, was properly applicable to the medical staff peer review process, and that because all of the causes of action arose from that process, the burden fell to Silva to establish the probable merit of his claims.
Silva opposed the motion, arguing the anti-SLAPP statute was inapplicable to the case, both because the medical staff peer review process was not "an official proceeding authorized by law," and because his complaint was based upon allegations of wrongful conduct, not speech. Silva also argued that sufficient evidence established the probable validity of his claims.
Silva also filed an amended complaint while the anti-SLAPP motion was pending. However, it is well settled that such amended pleadings can have no effect on the resolution of the anti-SLAPP motion. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068.)
After considering the parties legal arguments, the trial court concluded the anti-SLAPP law was inapplicable to this case, and denied the motion. It reasoned: "defendants acts are not in furtherance of their free speech rights. The complaint deals with the violation of statutes and Hoags bylaws (no opportunity for hearing and response to charges). The challenge is not to defendants right to conduct a peer review but rather the way it was conducted. It is not necessary to get to the second prong; therefore, motion denied."
I
Code of Civil Procedure section 425.16, the anti-SLAPP law, provides in pertinent part that: "A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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." (Code Civ. Proc., § 425.16, subd. (b)(1), italics added.)
Our review of an order refusing to strike a complaint as a SLAPP suit is de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 ["Whether [Code of Civil Procedure] section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal"].)
The SLAPP law requires a two-step process for determining whether a defendants Code of Civil Procedure section 425.16 motion to strike should be granted. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Then, if the court finds that such a showing has been made, the burden shifts to plaintiff to demonstrate "there is a probability that the plaintiff will prevail on the claim." (Code Civ. Proc., § 425.16, subd. (b)(1); DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)
II
Consequently, in this case, the Hoag defendants had the initial burden of establishing that the allegations against them arose out of an "act . . . in furtherance of [their] right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." (Code Civ. Proc., § 425.16, subd. (b)(1).)
Subdivision (e) of the SLAPP law specifically defines an "`act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue" to include "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [or] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. . . ." (Code Civ. Proc., § 425.16, subd. (e), italics added.)
In Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th 192, our Supreme Court recently concluded that a hospital peer review process, such as the one concerning Silva in this case, does constitute an "official proceeding authorized by law," and thus is entitled to the protections of the anti-SLAPP procedure. We need not revisit nor belabor the issue.
However, the trial courts rationale for denying the anti-SLAPP motion in this case was not solely based upon the conclusion that a hospital peer review process was exempt from the anti-SLAPP protections. Instead, the court reasoned that Silvas complaint was based upon defendants conduct, rather than their communicative activity. We disagree.
Silva argues the Hoag defendants have "waived" their rights to address the "dispositive issue" of whether his complaint is based upon "conduct or speech," by "completely failing to address [it]." They have not. While the crux of their brief focuses on the issue of whether hospital peer review falls within the purview of the anti-SLAPP statute, the Hoag defendants also clearly took the trial court to task for failing to analyze Silvas complaint on a claim by claim basis: "If the trial court had performed the claim by claim and defendant by defendant analysis required by this courts ruling in Computer Express, it could not have ruled that the entirety of Silvas lawsuit dealt only with the violation of statute and the Hoag bylaws. Indeed, all of Silvas causes of action in tort arise out of alleged defamatory statements concerning Silva which were made in connection with the peer review proceeding at issue. . . ."
The purpose of Silvas lawsuit is not to challenge the quality of the process offered to him; it is to challenge the outcome of that process. What Silva is aggrieved by is the Hospitals letter of censure and the vote of "no confidence" implied in its imposition of probation — not by any defects in the process employed in reaching that outcome. The injunctive relief Silva seeks is not an order for more hearings; it is an order to rescind and expunge the outcome of what he considers to be the flawed peer review process. Stated another way, if the Hoag defendants had determined, using the exact same process allegedly employed here, that Silva was an excellent surgeon and had chosen to place a letter of commendation, rather than censure, in his file, he would have no grievance against them. This case is entirely about the communicative activity.
In Navellier v. Sletten (2002) 29 Cal.4th 82, the Supreme Court explained that the "anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning." (Id. at p. 92.) In this case, the "activity that gives rise to [the] asserted liability" is the Hoag defendants ultimate decision to censure Silva. It is the censure which he contends has damaged him, and the censure which he seeks to have rescinded and expunged.
Rather than being the crux of Silvas complaint, defendants conduct is merely the circumstance he relies upon to establish why their ultimate communication — the censure which allegedly harmed him — was actionable. Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, illustrates the distinction. In Gallimore, the plaintiff had uncovered evidence of defendants alleged improper claims handling in documents defendant had filed with a regulatory agency. Defendant moved to strike the complaint as a SLAPP action, asserting the claims alleged against it "arose" out of communicatory activities; i.e., the documents themselves. The court rejected that contention "out of hand," noting it "confuses State Farms allegedly wrongful acts with the evidence that plaintiff will need to prove such misconduct. Plaintiff seeks no relief from State Farm for its communicative acts, but rather for its alleged mistreatment of policyholders and its related violations and evasions of statutory and regulatory mandates." (Id. at p. 1399, original italics omitted; italics added.) In this case, by contrast, Silva seeks relief only for communicative acts — he wishes to undo the damage to his reputation and career caused by the disparaging content of the Hoag defendants communications, and to recover compensation for the damage already caused by those communications.
Contrary to the trial courts reasoning, we conclude Silvas lawsuit arises out of defendants communicative acts, rather than their non-communicative conduct. As all of defendants communications took place in connection with a hospital peer review process, Silvas resulting lawsuit was subject to the provisions of the anti-SLAPP law. (Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th 192.) The trial court erred in concluding otherwise. Because the trial court never reached the second prong of the anti-SLAPP analysis; i.e., whether Silva established a probability of prevailing on each of his causes of action, we remand the case to the trial court for that purpose.
The order is reversed, and the case is remanded to the trial court. Appellants are to recover their costs on appeal.
We Concur:
OLEARY, J.
MOORE, J.