Armin v. Riverside Cmty. Hosp.

• Decision Date: 16 November 2016
• Docket Number: G052125
• Citation: 5 Cal.App.5th 810,210 Cal.Rptr.3d 388
• Court: California Court of Appeals Court of Appeals
• Parties: Sean ARMIN, Plaintiff and Appellant, v. RIVERSIDE COMMUNITY HOSPITAL, Defendants and Appellants; Medical Staff of Riverside Community Hospital et al., Defendants and Respondents.

5 Cal.App.5th 810

210 Cal.Rptr.3d 388

Sean ARMIN, Plaintiff and Appellant,

v. RIVERSIDE COMMUNITY HOSPITAL, Defendants and Appellants;Medical Staff of Riverside Community Hospital et al., Defendants and Respondents.

G052125

Court of Appeal, Fourth District, Division 3, California.

Filed November 16, 2016

As Modified December 15, 2016

Fenton Nelson, John A. Mills, Los Angeles, and Farooq Mir; Fenton Law Group, Henry R. Fenton, Dennis E. Lee and Nicholas D. Jurkowitz for Plaintiff and Appellant.

Theodora Oringher, Todd C. Theodora and Suzanne Cate Jones, Costa Mesa, for Defendant and Appellant Riverside Community Hospital, and Defendants and Respondents Medical Staff of Riverside Community Hospital, Kenneth E. Dozier and Subbu Nagappan.

Law Office of Mark T. Kawa and Mark T. Kawa, Redondo Beach, for Defendants and Respondents Clifford Douglas and Lawrence Clark.

OPINION

BEDSWORTH, ACTING P.J.

I. INTRODUCTION

We embark here upon an admittedly lengthy voyage—slow going because we must proceed carefully in largely uncharted waters. The appeal requires us to decide two questions of first impression regarding the interaction between (a) hospital peer review proceedings against doctors governed by sections 805 to 809.7 of the Business and Professions Code, and (b) the hospital whistleblower statute, Health and Safety Code section 1278.5.¹ The first question is one left open by our Supreme Court's decision in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 168 Cal.Rptr.3d 165, 318 P.3d 833 (Fahlen ). Fahlen squarely held that a physician could prosecute a section 1278.5 action without first having to prevail in an administrative mandate proceeding attacking a peer review determination, but the court did not go so far as to excuse the physician from completing the internal peer review process before filing a section 1278.5 action. The case before us now presents that very question: Is completion of peer review a prerequisite of a section 1278.5 action? Based on the analysis in Fahlen and the text and legislative history of section 1278.5, we hold that a physician need not complete the internal peer review process prior to filing a section 1278.5 action.

The second question is whether a physician bringing a section 1278.5 action may name as defendants individual physicians involved in the peer review process who allegedly instigated the process in retaliation for the physician's whistleblowing. Based on the text of section 1278.5 and its legislative history, we hold that a physician may not name individual physicians in a section 1278.5 complaint.

To complete the opinion, we must also decide an issue involving the tripartite interaction of the anti-SLAPP statute ( Code Civ. Proc. § 425.16 ), the peer review process, and a physician's religious discrimination claims against a hospital under Unruh Civil Rights Act. The issue is whether the fact the physician reiterated complaints of religious discrimination by the hospital in the context of protesting the initiation of peer review proceedings against him so intertwined his discrimination claims with the peer review proceedings as to subject his discrimination claims to an anti-SLAPP motion. Here, because the physician first voiced his complaints of religious discrimination prior to the initiation of the peer review proceedings, it is clear his discrimination claims are not based on activity protected under the anti-SLAPP statute. The hospital's remedy if those religious discrimination claims cannot be supported by substantial evidence—or are otherwise legally infirm—is a summary judgment motion.²

II. FACTS

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, 168 Cal.Rptr.3d 165, 318 P.3d 833.) 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 the 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 the plaintiff's evidence in opposition to the anti-SLAPP motion where it conflicts with that of the 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." (See Baral v. Schnitt (2016) 1 Cal.4th 376, 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:

(1) 2009-2010: Employment by RNA and work at RCH : From August 2009 to October 2010, plaintiff Sean Armin, a Riverside brain surgeon, worked both as an employee of a firm, RNA, owned by two other brain surgeons, Douglas and Clark, and also had surgery privileges at RCH. Armin was recruited by RCH in order to beef up the area's neurosurgical care, with newer skills, especially as directed toward minimally invasive surgery. At RCH's behest, Armin took employment with RNA, run by Douglas and Clark, the area's only neurosurgeons at the time. But Douglas and Clark—according to Armin—were threatened by Armin's newer—and to them unfamiliar—skill set. They forbade him, for example, from using a technique known as "Deep Brain Stimulation" which, according to Armin, can be helpful in the treatment of Parkinson's disease.

It was during this first period that Douglas made several remarks perceived by Armin to be anti-Semitic slurs,³ while Clark made it a point that he would not even try to accommodate Armin's desire for time off for Jewish religious holidays.⁴ Perhaps the most dramatic instance of Clark's attitude toward any such accommodation was Clark's refusal to treat one of Armin's patients who came into the emergency room during Yom Kippur. Clark had the hospital's emergency department repeatedly page Armin, saying he was not "covering for" Armin. But Armin's pager was turned off that day in observance of Yom Kippur. The upshot was that the patient was left for Armin to treat for a suspected infection two days later.

(2) 2010-2012: Post-RNA Employment : From October 2010, when Armin left RNA because Douglas and Clark attempted to cut his salary in half, to January 2012, Armin was no longer an employee of RNA.

Armin started his own practice but continued to have hospital privileges at RCH. Douglas and Clark remained in control of the neurosurgery call panel at RCH and dropped him from the emergency call schedule, obviously cutting into his new business.

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."⁵ RCH responded by putting Armin on the call schedule, but only for three days in April of 2011 (the 22nd through the 24th) which just happened to fall during the middle of Passover. Armin again complained to the CEO (and several others in the hospital administration), but he was never placed on the call schedule again.

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 wasn't finished by the beginning of the Sabbath on Friday night.⁶ In late December 2011, Armin told RCH's COO that Douglas and Clark were transferring patients or sometimes just delaying treatment of those patients, and that in one instance the lack of timely treatment resulted in a patient becoming permanently blind.

(3) Early 2012-Present : The initiation and continuation of Peer Review Proceedings : On January 16, 2012 Douglas wrote to RCH's "Office of Performance Improvement" alleging three specific instances of malpractice on Armin's part. The surgeries had all occurred within the previous three weeks. Defendants Dozier and Nagappan were courtesy-copied on the letter.

Douglas' 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.⁷ The postponement allowed Armin to write a lengthy letter to Nagappan and Dozier, dated March 12, presenting his side of the story. Nine of its 15 pages addressed in detail the six cases, and according to Armin, two of the six involved operations done back when he was employed by RNA. He said Douglas and Clark had concurred in his approach to those two surgeries at the time.

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...