Jul 24, 2006
In This Issue
A unanimous California Supreme Court has held that California's anti-SLAPP law, California Code of Civil Procedure (“CCP”) Section 425.16, (which provides for prompt dismissal of meritless lawsuits designed to chill free speech) applies to private hospital peer review proceedings because they are “official proceeding[s] authorized by law” under that statute. Kibler v Northern Inyo Local Hospital District, ___ Cal. 4th ___, July 20, 2006; 2006 WL 2022176 (Cal.).
The Kibler decision is great news for all California acute care hospitals. By recognizing private hospital peer review as an “official proceeding authorized by law,” the Court applied the strongest and most sweeping legal ground for the application of California's anti-SLAPP statute, specifically CCP Section 425.16(e)(2). This ruling means that no California hospital needs to demonstrate that a particular peer review was conducted primarily in furtherance of free speech activities on an issue of public importance. The “official proceedings” label makes such a case-by-case determination unnecessary. Under Kibler, hospital peer review proceedings – and the many communications that occur in anticipation of such proceedings – have the same anti-SLAPP protection as statements made in court pleadings, or disparaging comments made in open court, when they are attacked in improper defamation actions.
This is a remarkably positive ruling. Not only are most hospitals private entities – rather than government agencies or public/state-operated bodies whose proceedings obviously are “official” – but in 1979 the Supreme Court had held that private hospitals were not entitled to invoke the absolute litigation privilege for official proceedings under statutory language that (at the time) was identical to the “official proceeding” language that now appears in the anti-SLAPP statute. See Hackethal v. Weissbein, 24 Cal. 3d 55, 58-60 (1979). (The Hackethal decision subsequently was superseded by a statutory amendment.)
The Kibler Court cited the amicus curiae brief filed on behalf of hospital system Dignity Health (formerly known as Catholic Healthcare West) and the hospitals of the Regents of the University of California for the key policy point that denying anti-SLAPP protection would “further discourage” physicians from stepping up and conducting voluntary, uncompensated review of their colleagues. Similarly, the Court adopted another of the CHW/Regents’ principal legal arguments; namely, that since hospital board decisions in peer review cases are governed by the administrative mandamus statute (CCP Section 1094.5(d)), such proceedings must be considered “official,” even though conducted by private hospitals. The Court rejected contrary arguments by amicus curiae California Medical Association on this and other points.
The Kibler decision should shut down completely premature damages actions by physicians against hospitals, peer review bodies, and individual peer reviewers for defamation, interference, and other related torts – and thereby eliminate tremendous uncertainty, exposure, and expense. (Hospitals frequently indemnify and defend individually named defendant physicians for non-malicious peer review activities.) Doctors who file such complaints despite Kibler will now face winning anti-SLAPP motions, and also will have to pay the defendant hospitals’ statutorily mandated prevailing party attorneys’ fees. The Kibler decision also will encourage the best and brightest physicians to step forward and perform the difficult task of reviewing their peers, without fear of reprisal in the form of improper lawsuits that seek to chill the peer review process.
Manatt partners Terri Keville and Barry Landsberg briefed and argued (respectively) the Kibler case for amici curiae Dignity Health (formerly known as Catholic Healthcare West) and the Regents of the University of California.
Barry Landsberg Mr. Landsberg is an experienced litigator whose practice focuses on trials and appeals of complex business, commercial, unfair competition, false claims, administrative law and RICO disputes, principally for healthcare providers. He possesses in-depth knowledge of the myriad business and regulatory issues confronting health industry clients and also regularly litigates disputes involving hospital medical staff, licensure and certification of long-term care facilities, fraud and abuse, bio-ethics, antitrust, trademark and Medicare/Medicaid reimbursement.
Terri D. Keville Ms. Keville’s practice focuses on civil and administrative litigation, particularly appellate practice, and healthcare facility operations, including counsel on medical staff, regulatory, consent, confidentiality, EMTALA, ERISA, and other operational matters. She performs these services for hospitals and hospital systems, nursing homes, physician groups, and other healthcare providers, plans, and trade associations.
Helen R. PfisterPartner
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