Melamed v. Cedars-Sinai Medical Center (Feb. 27, 2017, No. B263095) __ Cal.App.5th __ [2017 WL 750493]
A Hospital summarily suspended the privileges of a surgeon who performed an unsuccessful spinal surgery that caused complications and required corrective surgery. The summary suspension was upheld at every level of administrative peer review. The surgeon did not seek judicial review of those proceedings; instead, he sued the Hospital for retaliation under Health and Safety Code section 1278.5 and other causes of action. He alleged for the first time that the Hospital suspended him because he had complained about patient safety issues. The trial court granted the Hospital’s anti-SLAPP motion, finding that the complaint arose from protected activity and the surgeon had failed to prove a probability of success on the merits.
The Court of Appeal affirmed. Because the complaint arose from peer review proceedings, which are protected activity under the anti-SLAPP statute, the burden shifted to the surgeon to prove a probability of success on the merits. The Court of Appeal held there was no prima facie merit to the surgeon’s retaliation claim because he could not show that he had presented a “grievance, complaint, or report” to the Hospital. Specifically, he did not use any of the Hospital’s channels for reporting safety concerns. The surgeon had asked a nurse (mid-surgery) whether larger pads or a different operating table was available, told the patient’s family that the hospital lacked a proper operating table (an allegation that the surgeon later retracted), and documented his request for a different table and pads in his postoperation report. But none of those alleged complaints notified the Hospital “as to what wrongful conduct it should investigate or correct.” Moreover, the Hospital could not have retaliated based on the postoperative report because it had already initiated the investigation leading to the summary suspension before that report was available. Finally, the court held that the surgeon’s remaining claims were barred by his failure to exhaust judicial remedies under Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465.
Addressing an issue that the parties did not brief, the Court of Appeal suggested—but did not decide—that the surgeon’s section 1278.5 retaliation claim was untimely under the one-year statute of limitations in Code of Civil Procedure section 340, which applies to an action upon a statute for a penalty (except where the penalty supplies a different limitations period).
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
1215 K Street, Suite 800
Sacramento, CA 95814
T 916.552.7605 | F 916.552.2607
