By Tala Hughes
On July 29, 2021, in Bonni v. St. Joseph Health System, 11 Cal. 5th 995 (2021), the California Supreme Court issued an opinion holding that statements made in connection with peer review proceedings and the required reporting of any proceeding decisions to the Medical Board of California (MBC) are protected activity under the anti-SLAPP law (Code of Civil Procedure section 425.16), but the discipline imposed through the peer review process is not protected activity.
This case arose because in 2014, Aram Bonni, M.D., a surgeon specializing in obstetrics and gynecology, sued St. Joseph for retaliation and other claims. Leading up to the lawsuit, Bonni performed three surgeries that resulted in patient complications. On these three occasions, Bonni alleges that he expressed concerns about the robotic assistant used in the surgeries because it malfunctioned by supplying only two-dimensional imaging instead of three-dimensional. After the third surgery, Bonni faced peer review proceedings after which St. Joseph terminated him and reported the disciplinary action to MBC. Bonni sued, alleging that St. Joseph retaliated against him because he presented complaints about the quality of patient care to other members of the medical staff. In response, St. Joseph sought to strike the retaliation claim under anti-SLAPP law and argued that peer review proceedings are protected activity.
Under California law, peer review is primarily designed to ensure the maintenance of high professional standards and the protection of patient welfare. When conducted fairly, it helps discipline physicians and protects the welfare of patients. If the peer review follows unfair procedures, it harms both patients and physicians because it excludes competent professionals and limits patient access to health care.
The California Supreme Court previously held in Kibler v. Northern Inyo County Local Hospital Dist., 39 Cal. 4th 192 (2006) that hospital peer review proceedings are official proceedings under anti-SLAPP law; thus, the law protects the “speech and petitioning in connection with hospital peer review.”
Anti-SLAPP is a law to protect people from meritless lawsuits that might limit their rights to speak on public matters. To define the scope of the anti-SLAPP law, the Court held in Bonni that the anti-SLAPP statute protects alleged statements made in peer review proceedings and any required reporting to MBC. However, anti-SLAPP law does not protect any final disciplinary decisions made. The protection extends to criticisms of a doctor, the Court reasoned, so that the reviewing body can openly discuss the competence without fearing harassing lawsuits, but the final decision is not protected because of its disconnection from the speech. The Court explained that denying protection to the peer review decision itself would not prevent hospitals from making appropriate disciplinary decisions based on statements made in the peer review process.
As a result of its holding, the Court denied the hospitals’ motion to strike Bonni’s claim because anti-SLAPP does not protect the discipline imposed that was central to Bonni’s retaliation claim. The Court remanded the case to consider in the first instance whether Bonni has met his second-step burden for those discrete claims arising from protected activity.