Melamed v. Cedars-Sinai Med. Ctr.

• Court: California Court of Appeals
• Writing for the Court: CHANEY, J.
• Decision Date: 21 April 2022
• Docket Number: B263095
• Citation: Melamed v. Cedars-Sinai Med. Ctr., B263095 (Cal. App. Apr 21, 2022)
• Parties: HOOMAN MELAMED, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.

HOOMAN MELAMED, Plaintiff and Appellant, v. CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.

B263095

California Court of Appeals, Second District, First Division

April 21, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No BC551455, Michael M. Johnson, Judge. Affirmed in part reversed in part, and remanded with directions.

Greene Broillet & Wheeler, Mark T. Quigley, Scott H. Carr Christian T.F. Nickerson; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Appellant.

Glaser Weil Fink Howard Avchen & Shapiro, Patricia L. Glaser Joel N. Klevens; Greines, Martin, Stein & Richland, Robin Meadow, and Jeffrey E. Raskin for Defendants and Respondents.

CHANEY, J.

On July 15, 2011, the medical staff of Cedars-Sinai Medical Center (Cedars) summarily suspended Hooman Melamed, M.D.'s privileges to perform back surgeries in scoliosis and kyphosis cases, after Dr. Melamed's operation on a 12-year-old scoliosis patient resulted in complications and necessitated a second, corrective surgery. In a year-long peer review hearing that began in September 2012 and concluded in November 2013, Dr. Melamed challenged the summary suspension of his privileges (and other recommendations of Cedars's medical staff). The Hearing Committee concluded, among other things, the summary suspension was reasonable and warranted when it was imposed on July 15, 2011 but, at the time of the Hearing Committee's decision in January 2014, the portion of the initial suspension that remained in effect should be terminated and Dr. Melamed's privileges reinstated, with prospective review of his clinical management in pediatric and adolescent scoliosis cases. Dr. Melamed pursued administrative appeals of the recommendations not in his favor, and the Hearing Committee's findings, conclusions, and recommendations were upheld.

In July 2014, Dr. Melamed filed this action against Cedars and four of its physicians who were involved in the summary suspension decision, William Brien, M.D., Rick Delamarter, M.D., Michael Langberg, M.D., and Neil Romanoff, M.D. (collectively, defendants). In a first amended complaint, Dr. Melamed alleged defendants' conduct in connection with the summary suspension and its aftermath was wrongful and damaged his career. Specifically, he alleged all actions defendants took against him- including the summary suspension-were retaliatory because he reported conditions and services at Cedars that threatened patient care and safety. Defendants filed an anti-SLAPP^[1] motion under Code of Civil Procedure section 425.16, ^[2] arguing all Dr. Melamed's claims arose out of protected activity-the peer review process-and Dr. Melamed could not show a probability of success on the merits on any of his causes of action. The trial court granted the anti-SLAPP motion, dismissed Dr. Melamed's first amended complaint with prejudice, and found defendants were entitled to recover attorney fees.

Dr. Melamed appealed. On February 27, 2017, we issued an opinion affirming the trial court's order of dismissal. The Supreme Court granted Dr. Melamed's petition for review and transferred the matter to this court for reconsideration in light of a Supreme Court decision in an anti-SLAPP case issued after our opinion. Upon reconsideration, on October 6, 2017, we issued an opinion reversing the trial court's order of dismissal. The Supreme Court granted defendants' petition for review and deferred further action pending disposition in two other anti-SLAPP cases before the Court. On September 15, 2021, the Supreme Court transferred the matter to this court for reconsideration in light of Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson) and Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 (Bonni). For the reasons explained below, upon reconsideration, we affirm in part and reverse in part the trial court's order of dismissal.

BACKGROUND

Dr Melamed is a board-certified orthopedic spine surgeon, licensed to practice medicine in California, who has had privileges to practice at Cedars since 2004.

I. The Surgery

On July 11, 2011, Dr. Melamed performed the elective scoliosis-correction surgery that led to the summary suspension of his privileges by Cedars's medical staff. Dr. Melamed approved the equipment to be used during the surgery, including the operating table ("the Jackson table") and the hip and thigh pads to stabilize his 12-year-old patient, D.W. He positioned D.W. on the Jackson table and was satisfied with her positioning and stability at the outset of the surgery.

During surgery, however, Dr. Melamed noticed D.W.'s pelvis was slipping through an opening in the Jackson table, altering the alignment of her spine. He asked the nursing staff for larger hip and thigh pads to help him stabilize her position, but he was told such pads were not available. He asked nurses to go under the table, push up her pelvis, and hold it still. Dr. Melamed did not close D.W.; he continued to operate. He extended the incision up her spine and fused her higher vertebrae. Her position on the table continued to shift, and she continued to slip through the bolsters that were placed in attempts to stabilize her position. Dr. Melamed asked the nursing staff to see if there was a four-poster operating table available, so he could transfer D.W. to that table and complete the surgery. He was told such a table was not available.

Realizing he would not be able to complete the surgery because of the continuing problems with D.W.'s position on the table, Dr. Melamed placed a temporary rod in her spine and decided he would perform another corrective surgery on her in a few days. What Dr. Melamed originally believed would be a simple surgery lasted more than eight hours. D.W.'s lordosis (inward curvature of the lumbar spine) was worse after the surgery, and she had abrasions on her face and body due to the number of hours she spent on the operating table.

Dr. Melamed told D.W.'s parents there were some mechanical problems with the table and pads during surgery. He explained to them that he would request the appropriate table and pads and bring D.W. back into the operating room soon for a corrective surgery. He also offered to help them obtain a second opinion.

II. Nursing/Operating Room Staff Report the Surgery for Potential Review, and the Peer-Review Investigation Commences

Early in the morning on July 12, 2011, immediately after the surgery, a nurse who came in to assist in transferring D.W. from the Jackson table to a hospital bed expressed concern about the appearance of D.W.'s spine. After hearing from staff who were present in the operating room that the curvature of D.W.'s spine was worse after the surgery, the nurse decided to file a formal electronic incident report through the MIDAS event reporting system.[³] In the early evening on July 13, 2011, a Cedars operating room manager, who had observed D.W. earlier that day and had spoken with her parents, emailed Dr. William Brien, Executive Vice Chairman for the Department of Surgery at Cedars. In his capacity as Executive Vice Chairman, Dr. Brien was required to and regularly participated in physician peer review matters. In the email, the manager informed Dr. Brien that D.W. had dermal abrasions on her face due to the length of the surgery. D.W.'s father told the manager that D.W. was now" 'barrel chested' compared to [her] previous state" before surgery. According to the manager's email, D.W.'s parents said Dr. Melamed told them: D.W. was too small for the Jackson table, and she "slipped" when he was trying to place a rod in her spine. The rod also "slipped," so he needed to perform a corrective surgery. To do so, he needed an operating table that Cedars did not have. As stated in the email, the manager reassured D.W.'s parents that Cedars had the necessary equipment for the corrective surgery. The parents requested referrals for a second opinion, and the manager provided them. After speaking with D.W.'s parents, the manager asked Dr. Melamed what equipment he needed for the corrective surgery, and he stated he could "use the slider with gel bolsters." As stated in the manager's email, the manager assured Dr. Melamed that Cedars would accommodate this equipment request.

By morning on July 14, 2011, Dr. Brien had decided to expedite the peer review investigation regarding D.W.'s surgery because D.W. remained at Cedars awaiting a corrective surgery. The same day, Dr. Brien interviewed Dr. Melamed. According to Dr. Melamed's declaration in opposition to defendants' anti-SLAPP motion, Dr. Brien began the interview by asking him:

" 'Are you going around the hospital and telling everyone that Cedars doesn't have the capability to do this case?'" In the same declaration, Dr. Melamed stated: "In response [to the above question], I told him [Dr. Brien] what happened during the surgery, and explained that it had been difficult to stabilize the patient due to the inadequate table/pads. I told him that the nursing personnel had told me that the correct table/pads were not available. I further told him that I had done other cases like this at Cedars before, and had never had any problems. I also told him that this case was supposed to be simple and straightforward, and that if I would have had the correct table/pads, the patient would have had a successful surgical outcome similar to my other cases." Dr. Melamed's declaration does not state what he told Dr. Brien regarding conversations with others about equipment issues during the surgery.

According to Dr. Brien's account of his July 14, 2011 interview with Dr. Melamed, as memorialized in Dr. Brien's notes Dr. Melamed denied telling anyone, including D.W.'s parents, that Cedars did not have...