California high court to rule on peer reviewer shield

California's highest court will decide for the first time whether peer review committees are protected under a state law aimed at preventing unfounded lawsuits designed to squelch criticism of public endeavors.

About 30 states have such measures, dubbed anti-SLAPP because their intent is to stop "strategic lawsuits against public participation." California's statute applies to any "official proceeding authorized by law" or any speech "in connection with a public issue."

Whether peer review falls into these categories will be up to the state Supreme Court after split decisions in California's 4th Appellate District. Oral arguments are to be held this month.

The appeals court conflict prompted the California Medical Assn. and the California Hospital Assn. to join the debate with opposing friend-of-the-court briefs.

"Peer review itself is conducted in a very confidential setting and does not fall into any of the areas the Legislature intended" in the anti-SLAPP law, said CMA General Counsel Gregory M. Abrams.

Other laws already give the system substantial insulation, making it difficult for physicians subject to unfair peer review to take their grievances to court, he said. If peer reviewers are granted additional protection via the anti-SLAPP statute, Abrams said, "The message is no doctor is going to sue any medical staff again because the risk is so high."

On the other hand, the CHA argues that while peer review is confidential, it is done for a public purpose mandated by state law and should fall under the anti-SLAPP statute.

"Peer review is a very important function that protects patient health, and we need to encourage physicians to participate," said Lois Richardson, CHA vice president and legal counsel. Doctors are often reluctant to serve on these panels because they fear being sued by the physician under review, she said.

Courts at odds

The two conflicting appeals court decisions were spurred by similar lawsuits. In both cases, the reviewed physician had sued the peer-review committee for defamation for improperly investigating his actions and wrongfully suspending his privileges. The hospital in each case tried to dismiss the lawsuit, claiming that peer review was an official proceeding protected under the anti-SLAPP law.

In O'Meara v. Palomar Pomerado Health System, the 4th District Court of Appeal, Division 1 concluded in January 2005 that, based on the "private nature" of peer review, the process did not qualify as an official proceeding. The court refused to dismiss the physician's defamation case.

A peer-review committee, the court determined, was not an independent public agency created by the state but a group of private physicians selected by and from the hospital staff. Judges also reasoned that any alleged wrongful conduct subject to peer review did not concern "the public at large, but was limited to the patients of the particular hospital in question." Therefore, the court found, peer review was not connected to a public matter as intended by the California Legislature under the anti-SLAPP statute.

"To convert defendant's challenged disciplinary action into an issue of public interest merely because the incident can be related to a broader public health issue would improperly provide for anti-SLAPP coverage in every employment-type case involving a physician or health care worker," Judge Judith L. Haller wrote.

In the same month, however, judges in the 4th District Division 2 appeals court disagreed.

In Kibler v. Northern Inyo County Local Hospital, the court said peer review is an official proceeding authorized under the California Business and Professions Code. Judges dismissed the case against the hospital peer-review committee.

Contrary to O'Meara, the court concluded that the process deserves anti-SLAPP protection "because its decision involve(s) a public issue, namely the protection of the health and welfare of the people in California," Judge Barton C. Gaut wrote. Even if the license suspension proceeding against the doctor was confidential, it was related to his medical performance and therefore concerned a matter of public interest, the court determined.

"A contrary conclusion would ignore California's stated purpose to create a mechanism to insure the health of its residents and would dissuade medical and professional staffs of health care facilities or clinics from participating in the peer-review process," the opinion states.

Given the conflict, the California Supreme Court must take up the issue, and it accepted the Kibler case for review, the CMA's Abrams explained.

Although attempts to apply the anti-SLAPP law to peer-review cases have occurred in California's trial courts, O'Meara and Kibler were the first cases to reach the appellate level, he said. The coincidence will now force the high court to decide: "Is this a new way to protect hospitals from lawsuits by peer-reviewed physicians?" Abrams said.