The litigation privilege entitled hospital to anti-SLAPP dismissal of physician’s claims arising out of peer review proceedings
Posted September 30, 2022
Bonni v. St. Joseph Health System (Aug. 23, 2022, G052367) __ Cal.App.5th __ [2022 WL 4232964]
Invoking Health and Safety Code section 1278.5, Dr. Aram Bonni filed a whistleblower lawsuit against two hospitals where he had admitting privileges alleging they retaliated for his complaints about patient safety by suspending his privileges and initiating peer review proceedings. The hospitals filed an anti-SLAPP motion, arguing that Dr. Bonni’s claim arose from protected peer review proceedings and had no merit. The trial court granted the motion and Dr. Bonni appealed. The California Supreme Court ultimately granted review and held that Dr. Bonni’s retaliation action was composed 19 distinct claims, of which eight arose from protected activity. The Court remanded the case to the Court of Appeal to determine whether Dr. Bonni had established a probability of prevailing on the merits of those eight claims.
The Court of Appeal held that Dr. Bonni failed to show that any of the eight claims had merit since all of them were precluded by the litigation privilege. (See Civil Code, § 47.) The litigation privilege provide absolute protection for communications made in connection with official judicial or quasi-judicial proceedings, including medical peer review proceedings. The eight claims identified by the Supreme Court covered three categories of conduct: (1) the reporting of Dr. Bonni’s suspension to the medical board, (2) the peer review proceedings, and (3) one hospital’s settlement negotiations. Regarding the reports, the appellate court rejected Dr. Bonni’s argument that his claim was based on noncommunicative acts because the hospital engaged in inherently communicative acts when making the statutorily required reports. Next, the court held that the hospitals’ initiation of peer review proceedings, like the filing of a lawsuit, is a protected communication distinct from the act of suspending privileges. Similarly, Dr. Bonni’s claims based on statements made during peer review were part of an official proceeding. Finally, the court held that Dr. Bonni’s tort claims based on settlement negotiations were barred by the litigation privilege regardless whether he might bring a separate equitable action to rescind the settlement agreement.