Bonni v. St. Joseph Health Sys.

• Decision Date: 26 July 2017
• Docket Number: G052367
• Citation: Bonni v. St. Joseph Health Sys., 220 Cal.Rptr.3d 598, 13 Cal.App.5th 851 (Cal. App. 2017)
• Court: California Court of Appeals
• Parties: Aram BONNI, Plaintiff and Appellant, v. ST. JOSEPH HEALTH SYSTEM et al., Defendants and Respondents.

13 Cal.App.5th 851

220 Cal.Rptr.3d 598

Aram BONNI, Plaintiff and Appellant,

v.ST. JOSEPH HEALTH SYSTEM et al., Defendants and Respondents.

G052367

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

Filed July 26, 2017

Greene, Broillet & Wheeler, Mark T. Quigley, Scott H. Carr, Christian T.F. Nickerson, Santa Monica; Esner, Chang & Boyer, Joseph S. Persoff, Pasadena, and Stuart B. Enser for Plaintiff and Appellant.

Arent Fox, Lowell Brown, Debra J. Albin-Riley and Diane Roldan, Los Angeles, for Defendants and Respondents.

OPINION

IKOLA, J.

PlaintiffAram Bonni, a surgeon, sued St. Joseph Hospital of Orange (St. Joseph), Mission Hospital Regional Medical Center (Mission), and other defendants for, inter alia, retaliation under Health and Safety Code, section 1278.5(the whistleblower statute).¹Plaintiff alleged defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings.

In response to plaintiff's filing of his first amended complaint (FAC), defendants filed a special motion under Code of Civil Procedure section 425.16(the anti-SLAPP statute)² to strike plaintiff's retaliation cause of action, asserting his claim arose from the protected activity of hospital peer review proceedings.

The court granted defendants' anti-SLAPP motion as to both St. Joseph and Mission.The court determined, first, that defendants had met prong one of the anti-SLAPP statute's two-part test, which requires a moving defendant to show the plaintiff's claim arose from activity protected under that statute.( Equilon Enterprises v. Consumer Cause, Inc.(2002)29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685( Equilon ).)

The court then proceeded to prong two of the anti-SLAPP test, which requires a plaintiff to show a probability of prevailing on his or her claim.( Equilon , supra , 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)The court concluded plaintiff's proof failed as to both defendants.

We conclude plaintiff's retaliation claim under the whistleblower statute arose from defendants' alleged acts of retaliation against plaintiff because he complained about the robotic surgery facilities at the hospitals, and not from any written or oral statements made during the peer review process or otherwise.Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.This case is no exception.Accordingly, defendants' motion to strike fails on prong one of the anti-SLAPP test and we reverse the order granting defendants' motion.

FACTS

Plaintiff's FAC

Plaintiff's FAC alleged, inter alia, that defendants violated the whistleblower statute by retaliating against him for reporting "suspected unsafe and substandard conditions and services" at defendants' hospitals, including defendants' lack of committed assistants for robotic surgical procedures, and defendants' malfunctioning robot, camera, and bleeding-control devices.The FAC alleged defendants retaliated against plaintiff for his whistleblower complaints by, inter alia, suspending and ultimately denying him his medical staff privileges, after subjecting him to a lengthy and humiliating peer review process.

Defendants ' Anti-SLAPP Motion

In response, defendants filed an anti-SLAPP motion to strike the FAC's retaliation cause of action.Defendants argued: "Plaintiff ... exhibited consistent patterns of poor judgment and surgical techniques that caused serious complications—and in some cases near death—or his patients....In light of the imminent danger to future patients of these serious and life-threatening behaviors, Defendants summarily suspended Plaintiff and thereafter conducted peer review proceedings according to California law and the Hospitals' bylaws, to ensure patient safety."Defendants further argued that (1)plaintiff's retaliation claim arose from defendants' peer review processes; (2) such processes constitute protected activity under the anti-SLAPP statute; and (3)plaintiff could not show a probability of success on his retaliation claim because he lacked "admissible evidence indicating Defendants acted to retaliate against him."³

Defense counsel filed a declaration in support of defendants' anti-SLAPP motion.Exhibit 1 to counsel's declaration was the decision of St. Joseph's judicial review hearing committee, which stated that plaintiff experienced complications in three of the first six robotic procedures he performed at St. Joseph.Exhibit 3 to counsel's declaration included Mission's appellate committee report, which stated that the "focused review process was triggered by a December, 2009 case in which [plaintiff] perforated the patient's mesentery and bowel tissue five ... times.The patient suffered various complications following the procedure, required a second surgery to repair the perforations, ... and endured a protracted hospital stay."

Plaintiff's Opposition

Plaintiff opposed defendants' anti-SLAPP motion, arguing defendants failed to show his claim was a SLAPP, and alternatively, that plaintiff could make "the minimal showing necessary to establish a probability of prevailing on the merits."

In plaintiff's declaration supporting his opposition, he declared, inter alia: "In or about March of 2009, I became aware of numerous patient safety issues involving the da Vinci robot ... robotic surgery program at Mission Hospital.Specifically, the robotic surgery program at Mission was grossly understaffed and underfunded, which had a direct and adverse impact on patient safety.At times, I was unable to complete scheduled surgeries due to inadequate staffing.On October 19, 2009, I reported these patient safety concerns to Dennis Haghighat M.D., vice president of medical affairs at Mission.I requested that these issues be corrected in order to improve the safety of patients at Mission and St. Joseph.A true and correct copy of this report is attached hereto as Exhibit 2.Unfortunately, Mission and St. Joseph did nothing to correct or address these patient safety concerns."

Exhibit 2 is plaintiff's October 19, 2009 e-mail message to Haghighat, in which plaintiff stated he had been forced to cancel a few robotic surgeries due to the unavailability of an assistant surgeon and asking if Mission could allocate a scrub technician to serve as the assistant.The subject line of plaintiff's e-mail message is "Robotic Surgery at Mission."In this e-mail message, plaintiff never mentions St. Joseph.

Plaintiff's declaration continued: "On December 22, 2009, I performed a robotic surgical procedure at Mission on an elderly woman....During this surgery, the da Vinci robot malfunctioned which caused serious patient safety issues, including complications during the surgery, as well as a 42 minute delay.Specifically, the 3D Camera on the robot malfunctioned.Due to inadequate staffing and training, the Mission Staff had extreme difficulties correcting the problem with the robot.After some delay, the Mission Staff finally located the replacement camera and brought it in.Unfortunately, the Mission Staff were unfamiliar with [the] existence and location of that camera.Following the issue with the camera, the Monopolar scissors, as well as the cautery, on the robot malfunctioned.This is the instrument that is used to cauterize and cut tissues.This instrument was later recalled by Intuitive Surgical Inc., the manufacturer of the da Vinci robot....[¶] ... Once again, I reported these patient safety concerns regarding the malfunctioning da Vinci robot to Dennis Haghighat, M.D on January 11, 2010....A true and correct copy of this report is attached hereto as Exhibit 3.Instead of addressing these issues, Mission referred the case to the Quality Review Committee for outside review of my performance of the December 22, 2009 surgery.I believe that this was done in retaliation for my reports regarding the inadequate robotics program and substandard hospital equipment and staff."

Exhibit 3 is a string of e-mail messages, starting with plaintiff's December 22, 2009 e-mail statement to an alleged da Vinci representative that the camera, port assistant, and other problems had consumed 42 minutes.The da Vinci representative acknowledged "the camera had some issues," but also stated "no other robotically trained surgeons at Mission [have had] this many repeated issues on every case."Plaintiff then e-mailed Haghighat that "[w]e need some people that are well trained robotically to be in the room to help trouble shoot the problems that are encountered" and that "losing about 42 minutes to side issues during an already long and winding surgery could and should be avoided."

Plaintiff's declaration continued: "On or about April 30, 2010, in the interest of patient safety, I once again reported my concerns regarding the malfunctioning da Vinci robot and inadequate robotic program to [Nolan, Mission's chief of staff, and Kenneth Rexinger, M.D., Mission's chief of quality review]....Specifically, I again reported the following patient safety concerns: (1) the lack of a committed assistant for the procedure, (2) lack of committed [operating room] staff, (3) lack of appropriately trained scrub techs, (4) lack of availability of appropriate instruments in general, (5) the malfunctioning camera on the da Vinci robot and (6) the malfunctioning of the devices on the da Vinci robot to control bleeding.A true and correct copy of this report is attached hereto as Exhibit 4...."

Exhibit 4 is plaintiff's letter to Nolan, explaining the circumstances surrounding the December 22, 2009 robotic surgery and reciting the above six patient safety concerns.The letter is undated, but allegedly sent in March 2010.

Plaintiff's declaration continued: "On August 20, 2010, I reported my concerns regarding the malfunctioning robot again to DefendantDr. Juan Velez, Chief of Obstetrics/Gynecology at St. Joseph.On September 15, 2010 I reported these same...