Armin v. Riverside Community Hospital

Filed 11/16/16; pub. order 11/17/16 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SEAN ARMIN,

Plaintiff and Appellant, G052125

v. (Super. Ct. No. RIC1217004)

RIVERSIDE COMMUNITY HOSPITAL, OPINION

Defendants and Appellants;

MEDICAL STAFF OF RIVERSIDE

COMMUNITY HOSPITAL et al.,

Defendants and Respondents.

Appeal from an order of the Superior Court of Riverside County, Philip

Argento, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with

directions.

Fenton Nelson, John A. Mills and Farooq Mir; Fenton Law Group, Henry

R. Fenton, Dennis E. Lee and Nicholas D. Jurkowitz for Plaintiff and Appellant.

Theodora Oringher, Todd C. Theodora and Suzanne Cate Jones for

Defendant and Appellant Riverside Community Hospital, and Defendants and

Respondents Medical Staff of Riverside Community Hospital, Kenneth E. Dozier and

Subbu Nagappan.

Law Office of Mark T. Kawa and Mark T. Kawa for Defendants and

Respondents Clifford Douglas and Lawrence Clark.

* * *

I. INTRODUCTION

We embark here upon an admittedly lengthy voyage – slow going because

we must proceed carefully in largely uncharted waters. The appeal requires us to decide

two questions of first impression regarding the interaction between (a) hospital peer

review proceedings against doctors governed by sections 805 to 809.7 of the Business

and Professions Code, and (b) the hospital whistleblower statute, Health and Safety Code

section 1278.5.1 The first question is one left open by our Supreme Court’s decision in

Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655 (Fahlen). Fahlen

squarely held that a physician could prosecute a section 1278.5 action without first

having to prevail in an administrative mandate proceeding attacking a peer review

determination, but the court did not go so far as to excuse the physician from completing

the internal peer review process before filing a section 1278.5 action. The case before us

now presents that very question: Is completion of peer review a prerequisite of a section

1278.5 action? Based on the analysis in Fahlen and the text and legislative history of

section 1278.5, we hold that a physician need not complete the internal peer review

process prior to filing a section 1278.5 action.

1 All undesignated statutory references in this opinion are to the Health and Safety Code. All

undesignated references to any subdivision of a statute are to section 1278.5 of that Code.

2

The second question is whether a physician bringing a section 1278.5

action may name as defendants individual physicians involved in the peer review process

who allegedly instigated the process in retaliation for the physician’s whistleblowing.

Based on the text of section 1278.5 and its legislative history, we hold that a physician

may not name individual physicians in a section 1278.5 complaint.

To complete the opinion, we must also decide an issue involving the

tripartite interaction of the anti-SLAPP statute (Code Civ. Proc. § 425.16), the peer

review process, and a physician’s religious discrimination claims against a hospital under

FEHA. The issue is whether the fact the physician reiterated complaints of religious

discrimination by the hospital in the context of protesting the initiation of peer review

proceedings against him so intertwined his discrimination claims with the peer review

proceedings as to subject his discrimination claims to an anti-SLAPP motion. Here,

because the physician first voiced his complaints of religious discrimination prior to the

initiation of the peer review proceedings, it is clear his discrimination claims are not

based on activity protected under the anti-SLAPP statute. The hospital’s remedy if those

religious discrimination claims cannot be supported by substantial evidence – or are

otherwise legally infirm – is a summary judgment motion.2

2 So that readers can have one place – this footnote – to check for the administrivia of party names

and acronyms, we engage first in what poet Henry Reed would call “Naming of Parts.” There are four sets of

defendants listed in the caption of the complaint: (1) Riverside Community Hospital itself, more formally titled

“Riverside Healthcare System, Inc.”; (2) a group of professionals listed as the “Medical Staff of Riverside

Community Hospital” and the complaint alleges is an “unincorporated association comprised of physicians and

other licensed practitioners who provide professional services” at Riverside Community Hospital; (3) Kenneth

Dozier and Subbu Nagappan, who are, respectively, the chair of the Medical Executive Committee of Riverside

Community Hospital and the chair of the Surgical Quality Review Committee of Riverside Community Hospital;

and (4) Clifford Douglas and Lawrence Clark, physicians who allegedly initiated the peer review proceeding which

is at the heart of this appeal.

Unless the context otherwise requires, we will refer to all defendants collectively as “the hospital.”

When speaking of Riverside Community Hospital in particular, we will use the initials used by the parties, “RCH.”

Though Douglas and Clark, and Dozier and Nagappan filed their own respondent’s briefs, when we speak or cite to

the “respondent’s brief” (“resp. br.”) we refer to the brief of RCH, which has carried the laboring oar of the

defendants’ arguments on appeal. Douglas and Clark also operate their own entity, known as “Riverside

Neurosurgical Associates,” which the parties refer to by the initials RNA.

3

II. FACTS

It is important to emphasize at the outset that this is not an administrative

mandate case following an evidentiary hearing terminating a physician’s hospital

privileges. This is not a case where a physician is claiming that violations of fair

procedure or lack of substantial evidence requires a court to set aside some hospital

discipline taken after peer review proceedings. In such a case the standard of review

would be highly favorable to the hospital. (See Fahlen, supra, 58 Cal.4th at p. 673.) But

this case arrives here by way of an anti-SLAPP motion – sans evidentiary hearing.

Accordingly, we resolve conflicts and inferences in the record in favor of the plaintiff.

(Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 347-348.)

Here, the peer review process was not completed. If there is a spin to our

statement of facts, it is because we must credit the plaintiff’s evidence in opposition to

the anti-SLAPP motion where it conflicts with that of the defendants. In such motions,

“The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is

limited to whether the plaintiff has stated a legally sufficient claim and made a prima

facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's

evidence as true, and evaluates the defendant’s showing only to determine if it defeats the

plaintiff's claim as a matter of law.” (See Baral v. Schnitt (Aug. 1, 2016, S225090) ___

Cal.4th ___, ___ 2016 Cal.LEXIS 6383 Cal. 2016 at p. __ (Baral).)

Readers should note that in part III.B. of this opinion we must particularly differentiate “the

hospital” and RCH from the individual doctors, Dozier, Nagappan, Douglas and Clark. When referring to the

plaintiff’s claims against doctors Dozier, Nagappan, Douglas and Clark individually, we will refer to them as the

“four individual doctor defendants.” Further, in the lexicon of hospital peer review disciplinary proceedings,

“MEC” stands for “medical executive committee,” “SQRC” for the “surgical quality review committee,” and “JRC”

for the “judicial review committee.” The MEC and JRC acronyms are common in the case law in the area. (E.g.,

Fahlen, supra, 58 Cal.4th at p. 663; Sadeghi v. Sharp Memorial Medical Center Chula Vista (2013) 221

Cal.App.4th 598, 602, 608; Michalski v. Scripps Mercy Hospital (2013) 221 Cal.App.4th 1033, 1035.) SQRC, by

contrast, makes its debut in this case.

And since we are already swimming in alphabet soup, a few more acronymic definitions are in

order: “CHA” stands for the California Hospital Association, the hospitals’ trade association which played a major

– if ultimately losing – role in the legislative history leading up to section 1278.5, subdivision (h). “CMA” stands

for the “California Medical Association,” which is the doctors’ trade association and the nemesis of the CHA in the

2007 effort to amend section 1278.5.

4

With that in mind, we set out the chronology of events leading to this

appeal, which subdivides itself into four distinct phases:

(1) 2009-2010: Employment by RNA and work at RCH: From August

2009 to October 2010, plaintiff Sean Armin, a Riverside brain surgeon, worked both as

an employee of a firm, RNA, owned by two other brain surgeons, Douglas and Clark, and

also had surgery privileges at RCH. Armin was recruited by RCH in order to beef up the

area’s neurosurgical care, with newer skills, especially as directed toward minimally

invasive surgery. At RCH’s behest, Armin took emloyment with RNA, run by Douglas

and Clark, the area’s only neurosurgeons at the time. But Douglas and Clark – according

to Armin – were threatened by Armin’s newer – and to them unfamiliar – skill set. They

forbade him, for example, from using a technique known as “Deep Brain Stimulation”

which, according to Armin, can be helpful in the treatment of Parkinson’s disease.

It was during this first period that Douglas made several remarks perceived

by Armin to be anti-Semitic slurs,3 while Clark made it a point that he would not even try

to accommodate Armin’s desire for time off for Jewish religious holidays.4 Perhaps the

most dramatic instance of Clark’s attitude toward any such accommodation was Clark’s

refusal to treat one of Armin’s patients who came into the emergency room during Yom

Kippur. Clark had the hospital’s emergency department repeatedly page Armin, saying

he was not “covering for” Armin. But Armin’s pager was turned off that day in

observance of Yom Kippur. The upshot was that the patient was left for Armin to treat

for a suspected infection two days later.

(2) 2010-2012: Post-RNA Employment: From October 2010, when Armin

left RNA because Douglas and Clark attempted to cut his salary in half, to January 2012,

3 Two stand out: According to Armin’s declaration, in November 2009, Douglas referred to a

certain Jewish anesthesiologist working at the hospital as the same “species” as Armin, and several months later in

2010 he said Armin should meet the anesthesiologist because “you Jews should just really stick with each other.”

4 According to Armin’s declaration Clark told Armin: “Just because you’re Jewish it doesn’t mean

you’re special, you’re an employee and you need to abide by our rules that come before you being Jewish.”

5

Armin was no longer an employee of RNA. Armin started his own practice but

continued to have hospital privileges at RCH. Douglas and Clark remained in control of

the neurosurgery call panel at RCH and dropped him from the emergency call schedule,

obviously cutting into his new business.

Armin complained to RCH’s CEO in late 2010 and early 2011 about being

dropped from the call schedule. He also informed the CEO that emergency room

physicians and nurses had informed him Douglas and Clark “often refused to see patients

in the middle of the night and postponed their evaluation of emergency room consults to

the next day, thus hurting the quality of care provided at the hospital.” Armin also told

the CEO that it was against the law for the hospital “to give RNA the exclusive right to

provide call coverage for the hospital’s patients.”5 RCH responded by putting Armin on

the call schedule, but only for three days in April of 2011 (the 22nd through the 24th)

which just happened to fall during the middle of Passover. Armin again complained to

the CEO (and several others in the hospital administration), but he was never placed on

the call schedule again.

During this same period Clark demanded that Armin’s access to the

neurosurgical operating room on Mondays be terminated, so Clark could have the room

for his own patients that day. The result was that Armin had to start operating on

Fridays, which presented an obvious conflict in the event he wasn’t finished by the

beginning of the Sabbath on Friday night.6 In late December 2011, Armin told RCH’s

COO that Douglas and Clark were transferring patients or sometimes just delaying

treatment of those patients, and that in one instance the lack of timely treatment resulted

in a patient becoming permanently blind.

5 Armin’s theory is that since RCH participates in Medi-Cal, it is precluded, under Welfare and

Institutions Code section 14087.28, to enter into any such exclusive contract.

6 Douglas and Clark, like Armin, have attended Loma Linda Medical School, a Seventh-Day

Adventist institution. It is a reasonable inference that both of them knew a Friday operating schedule would often

interfere with the observance of those who recognized a Saturday Sabbath.

6

(3) Early 2012-Present: The initiation and continuation of Peer Review

Proceedings: On January 16, 2012 Douglas wrote to RCH’s “Office of Performance

Improvement” alleging three specific instances of malpractice on Armin’s part. The

surgeries had all occurred within the previous three weeks. Defendants Dozier and

Nagappan were courtesy-copied on the letter.

Douglas’ letter caused Nagappan to schedule a meeting of the SQRC for

March 7. By this time – though the record is not clear precisely how – three instances of

alleged malpractice on Armin’s part had doubled to six.

The March 7 meeting was put over a week, apparently to accommodate a

religious holiday.7 The postponement allowed Armin to write a lengthy letter to

Nagappan and Dozier, dated March 12, presenting his side of the story. Nine of its 15

pages addressed in detail the six cases, and according to Armin, two of the six involved

operations done back when he was employed by RNA. He said Douglas and Clark had

concurred in his approach to those two surgeries at the time.

Preliminary to his defense of the merits of the six cases, Armin outlined the

history of his unhappy relationship with Douglas and Clark. Included was a reiteration of

Armin’s insistence that the de facto control of the surgery call panel at RCH by Douglas

and Clark was against the law and that patients sometimes require more urgent nighttime

care than Douglas and Clark were willing to provide. The hearing, which threatened the

possibility of summary suspension, prompted Armin to cancel three surgeries scheduled

for March 14.

According to Armin, he misunderstood the protocol for the March 14

meeting, and didn’t show up when it was scheduled to begin because he thought the

committee would first deal with his own complaints against the hospital and doctors

7 March 7 that year was the “Fast of Ester” (or Esther), which marks the beginning of Purim, a

holiday commemorating the saving of exiled Jews from their antagonist Haman, who is the villain of the story and

sometimes described as a “vizier” to the Persian king Ahasuerus, who is often identified with Xerxes.

7

Douglas and Clark, and only require his presence when the meeting turned to the topic of

his own alleged malpractice.8 The SQRC meeting resulted in a recommendation to the

MEC, itself due to meet March 20, that Armin be summarily suspended. Armin

responded with a letter to Dozier dated March 19, apologizing for missing the March 14

meeting and promising to cooperate with the SQRC and MEC from then on.

The next step was an MEC meeting held March 21. Armin did show up for

this one. He was told one of the six cases of alleged malpractice was being dropped, but

after Armin was “dismissed” (his word) from the meeting, the MEC summarily

suspended his privileges at RCH.

At this point the briefing and record become problematic in explaining the

remainder of the peer review proceedings. What is clear, however, is that, on appeal, the

hospital admits Armin is still entitled to a full evidentiary hearing in front of the JRC on

the five remaining alleged instances of malpractice. Further, Armin has timely requested

such a hearing.9 Moreover, the hospital recognizes that, after the JRC hearing has been

completed, nothing will be final until the RCH board takes final action.

And that’s where the trail ends in this case’s third phase – with a still-to-be

completed JRC hearing. In fact, we are told in the hospital’s respondent’s brief that

Armin’s peer review hearing “was still in its preliminary stages at the time” he filed “this

claim” in November 2012.

8 This information is contained in a letter Armin wrote to Dozier on March 19, stating he was under

the misimpression that the SQRC would first be discussing the five pages of complaints about RCH and Douglas

and Clark before it would get to the allegations of his own malpractice. That was, as he wrote, a

“misunderstanding.”

9 The appellate briefing includes a dispute about precisely why the remainder of the administrative

proceedings have not yet been completed; the mutual finger-pointing could be a synecdoche for the entire case. In

his opening brief Armin suggests the hospital has wanted to delay the proceedings to prejudice the merits of the

disciplinary proceedings against him (see App. Opn. Br. at p. 9), while the hospital responds by asserting it has been

Armin who has been delaying proceedings by (unreasonably) objecting to proposed panel members. (See Resp. Br.

at p. 24, fn. 17.) The only matter in the record bearing on the point is Dozier’s declaration to the effect that Armin

and his attorneys have “questioned potential panel members and [have] successfully challenged some of them.”

8

(4) Late 2012-Present: The period of litigation. On November 12, 2012,

Armin filed this action. The hospital responded with an anti-SLAPP motion and

demurrers. A commissioner heard those matters in May 2013. Commissioner Durand-

Barkley determined the anti-SLAPP motion should be granted as to the section 1278.5

cause of action because she believed Armin had not exhausted his administrative

remedies given the unfinished peer review process. She also ruled the demurrer to the

section 1278.5 action was moot. The commissioner denied the anti-SLAPP motion as to

the religious discrimination claims, because the hospital’s conduct was outside the

protection of the anti-SLAPP statute. She also overruled the demurrer to the religious

discrimination claims.

In July, retired Judge Argento formally incorporated the commissioner’s

rulings into a court order and awarded the hospital $12,440 in attorney fees. Armin

timely appealed from the order to the degree it struck his section 1278.5 cause of action

and awarded fees. The hospital cross-appealed from the order to the degree it denied the

request to strike the religious discrimination claims.

III. DISCUSSION

A. The Relationship of Peer Review and Section 1278.5 Claims10

1. The Fahlen Decision

Seldom does an appeal present in sharper relief a dispute over the meaning

and scope of a California Supreme Court opinion. In Fahlen, supra, 58 Cal.4th 655, a

doctor asserted substandard care was provided by certain nurses, culminating in a series

10 There is no question here that Armin’s section 1278.5 claim arises entirely from activity protected

by the anti-SLAPP statute – namely peer review proceedings – so the hospital can attack it on an anti-SLAPP

motion. Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler) held that hospital peer

review proceedings are within the protection of the anti-SLAPP statute.

That takes care of prong one of the traditional anti-SLAPP two-prong analysis. We therefore

proceed directly to prong two: whether the plaintiff has shown “minimal merit” in opposition to the defendant’s

anti-SLAPP motion. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [“Only a cause of action that satisfies both

prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal

merit – is a SLAPP, subject to being stricken under the statute.”].)

9

of “disruptive interactions” with them. Disciplinary proceedings against the doctor

proceeded through the MEC stage to the JRC stage and all the way to the board stage.

The board reversed an exoneration by the JRC. The result was that the board found the

doctor’s “‘abusive and contentious behavior’” toward hospital staff “inappropriate,” and

terminated his privileges. (Fahlen, supra, 58 Cal.4th at pp. 662-664.) The doctor then

filed a section 1278.5 action (along with other causes of action) against the hospital

without first bringing a civil action in administrative mandate. (See Code Civ. Proc.,

§ 1094.5.) As in the present case, the hospital filed both an anti-SLAPP motion and

demurrers. The appellate court upheld the trial court’s refusal to grant the anti-SLAPP

motion as regards the section 1278.5 action,11 in the process expressly disagreeing with

Nesson, supra, 204 Cal.App.4th 65, to the degree that Nesson required a successful civil

action in administrative mandate before a physician could bring a whistleblower claim

under section 1278.5. (Fahlen, supra, 58 Cal.4th at p. 666.) The disagreement in the

intermediate appellate courts teed up the case for Supreme Court review, and the high

court narrowed the issue carefully: Was a successful judicial mandate proceeding a

“necessary condition to the filing of a section 1278.5 action.” (Fahlen, supra, 58 Cal.4th

at p. 666.) To that question, the answer was no. (Ibid.)

The Fahlen court framed the issue meticulously, and its research and

analysis was nothing less than exhaustive. The Fahlen opinion is a tour de force analysis

of the interaction between section 1278.5 and the peer review process. Since the issues

before us are closely related, it is worth careful recounting of Fahlen’s analysis.

The law prior to Fahlen, as stated in Nesson, was that a physician had to

exhaust the peer review process and then also successfully challenge that internal

administrative result in a judicial mandamus proceeding before bringing a section 1278.5

11 The trial court got to the right result, but under the wrong rationale. The trial court erroneously

thought the administrative proceedings did not qualify for anti-SLAPP protection. (Fahlen, supra, 58 Cal.4th at p.

665.) The trial court’s assumption was wrong under Kibler. (Fahlen, supra, 58 Cal.4th at p. 666.)

10

claim. (See Nesson, supra, 204 Cal.App.4th at pp. 84-85.) For that result, Nesson relied

on Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 (Westlake), which

was decided more than two decades prior to the enactment of section 1278.5.12

Nesson specifically relied on Westlake to hold that a physician denied

reappointment at a hospital after a summary suspension was required to exhaust the

internal peer review process before bringing – among other claims – a section 1278.5

action. (See Nesson, supra, 204 Cal.App.4th at pp. 84-85 [citing or quoting Westlake

three times in quick succession].) In that reliance, Nesson cited Westlake for a

straightforward two-step rule: A physician must (1) complete the internal peer review

process and (2) bring an administrative mandate action before bringing any claims

against a hospital related to a hospital’s discipline, including a section 1278.5 action.13

Fahlen was decided two years later. What did Fahlen change? According

to appellant hospital, the only thing Fahlen did was to clip off (2) the mandamus

proceeding requirement from the Westlake two-step, leaving (1), the internal exhaustion

requirement, in place. And the hospital’s reading is not a bleacher seat view. Cases are

not authority for propositions not “actually considered and decided therein,” (In re

Chavez (2003) 30 Cal.4th 643, 656), and Fahlen did not go as far as we do. But reading

Fahlen convinces us the Legislature intended doctors’ section 1278.5 claims and peer

review proceedings to proceed at the same time.

Fahlen began with a thorough review of previous Supreme Court precedent

bearing on the topic of administrative exhaustion under whistleblower statutes other than

12 The Westlake decision involved a physician, whose privileges had already been revoked, seeking

damages under various tort theories centered on an alleged conspiracy of other doctors to restrain competition. (See

Westlake, supra, 17 Cal.3d at pp. 469-471.) While the Westlake court held that the physician had indeed exhausted

her internal administrative remedies (id. at p. 477), it said she still needed to “initially succeed in a mandamus action

before pursuing [her] tort remedy.” (Id. at p. 478.)

13 Because the Nesson court did not have the benefit of the Fahlen opinion, it offered no in-depth

analysis of section 1278.5. Its single paragraph addressing the doctor’s section 1278.5 claim appears to have been

based on the eight-month time lag between the doctor’s whistleblowing (when he complained about transcriptions

and patient safety) and his summary suspension. (Nesson, supra, 204 Cal.App.4th at p. 87.)

11

section 1278.5. (See Fahlen, supra, 58 Cal.4th at pp. 668-675, primarily discussing

Westlake, supra, 17 Cal.3d 465 [both internal and judicial exhaustion required before

physician could challenge termination of staff privileges]; Campbell v. Regents of

University of California (2005) 35 Cal.4th 311 [because there was no evidence of

statutory intent to displace common law rule requiring administrative exhaustion, state

architect was required to file administrative complaint before proceeding with civil

whistleblower action]; Arbuckle, supra, 45 Cal.4th 963 [judicial exhaustion not required

where relevant statute required complaint with state personnel board but no comment on

requirement of judicial mandamus]; and Runyon v. Board of Trustees of California State

University (2010) 48 Cal.4th 760 (Runyon) [following Arbuckle, judicial exhaustion not

required].)

After its review of the existing case law, the Fahlen court focused on

section 1278.5 specifically. Fahlen first noted the previous decisions involved statutes

which themselves imposed, either impliedly or expressly, requirements of exhaustion

before “an administrative body.” (Fahlen, supra, 58 Cal.4th at p. 676.) It noted that, in

contrast, section 1278.5 has no such requirement. (Ibid.)

And then the Fahlen court pointed out something quite remarkable about

the nature of section 1278.5. While a peer review disciplinary proceeding might be an

instrument of retaliation, such a proceeding is not a suitable forum for “redressing” the

alleged misconduct on the hospital’s part about which an allegedly errant physician might

have complained. (See Fahlen, supra, 58 Cal.4th at pp. 677-678.) The court recognized

that it makes little sense to impose an administrative exhaustion requirement for a

complaint about unsafe patient practices where the very administrative proceeding to be

exhausted – focused on the complainer’s own conduct – cannot itself afford any relief.

(Accord, Payne, supra, 130 Cal.App.4th at p. 739 [peer review process wasn’t the

remedy for claims of race discrimination].)

12

The distinction was bolstered by the high court’s allusion to a point made in

at least two of its earlier decisions (Arbuckle and Runyon), to the effect that a prerequisite

of a judicial mandate proceeding would seriously compromise the legislative purpose of

whistleblower statutes. Such proceedings are very hard to win if the hospital’s

procedures were fair. (Fahlen, supra, 58 Cal.4th at p. 678.)

Then came the coup de grace, found in Fahlen’s dissection of the

legislative history of section 1278.5 – especially the amendments of 2007 that added

subdivision (h) to the statute in its current form: “The legislative history of section

1278.5, subdivision (h) is consistent with a conclusion that the Legislature did not intend

to require postponement of a section 1278.5 action even while peer review proceedings

against the plaintiff were still in progress, let alone until the final peer review decision

had been set aside by mandamus.” (Fahlen, supra, 58 Cal.4th at p. 680, italics added.)

The legislative history to which the court alluded is important for our

purposes because it demonstrates a harmony between the raw text of subdivision (h) and

the Legislature’s intent in writing the text the way it did. Section 1278.5 is a relatively

recent statute, having been enacted in 1999. (Stats. 1999, ch. 155 (S.B. 97), § 1.) In

2007, the Legislature extended its coverage to hospital staff physicians. (See Fahlen,

supra, 58 Cal.4th at p. 679.) With the 2007 amendments came new subdivision (h),

which is so critical here.

The Fahlen court’s own shorthand paraphrase of subdivision (h) asserts a

view of subdivision (h) with which we find reassuring: The Legislature was obviously

contemplating the possibility that section 1278.5 actions could happen at the same time as

hospital peer review proceedings. In addition to what we have already quoted, the court

said: “Under this provision, a hospital’s medical staff may petition the court for an

injunction, pending completion of a peer review process, to protect the peer review

committee from having to comply with such demands ‘from the complainant’ if they

‘would impede the peer review process or endanger the health and safety of patients of

13

the [hospital].’ (Ibid. [quoting Stats. 2007, ch. 683, § 1, p. 5809.]) Thus, by its terms,

subdivision (h), as added by the 2007 amendments, envisions that hospital peer review

proceedings against a physician, on the one hand, and the physician’s section 1278.5

whistleblower action, on the other, might coexist simultaneously.” (Fahlen, supra, 58

Cal.4th at pp. 679-680, italics added.)

It was precisely that idea – that section 1278.5 actions and peer review

proceedings “might coexist simultaneously” – that triggered CHA to try to get the

Legislature to change its mind about subdivision (h). The story of the legislative battle

between the proponents of the 2007 amendments and their major opponent, the CHA,

goes on for about 3 pages in the opinion. (Fahlen, supra, 58 Cal.4th at pp. 680-682.) Its

conclusion is a clear recognition of legislative intent not to require completion of peer

review disciplinary proceedings before the filing of a section 1278.5 action.

The CHA, according to a Senate Judiciary Committee analysis, “was

concerned that extension of whistleblower protection to hospital staff physicians would

have a chilling effect on peer review proceedings, because ‘the bill could stop a peer

review process in its tracks by the simple filing of a section 1278.5 action . . . .,’ or ‘could

compel a peer review committee to not initiate a peer review process for fear that it could

be considered a retaliatory action . . . .’” (Fahlen, supra, 58 Cal.4th at p. 680, quoting

Sen. Com. on Judiciary, Analysis of Assem. Bill No. 632, as amended June 6, 2007, p. 9;

original italics deleted, new italics added.) So the committee analysis addressed the

danger of evaporation of the usual “protections and immunity” afforded a “pending peer

14

review action” if a section 1278.5 proceeding was allowed to proceed at the same time.

(Fahlen, supra, 58 Cal.4th at p. 680, italics added.)14

The Legislature did indeed respond to the CHA’s worry that peer review

proceedings might indeed be considered retaliatory action under section 1278.5, but it

was not the response the CHA hoped for. (See Fahlen, supra, 58 Cal.4th at p. 680.)

Rather, the Legislature’s answer was merely to give peer review committees the

opportunity to enjoin civil discovery demanded by the physician if such discovery would

impede the peer review proceeding itself. (Fahlen, supra, 58 Cal.4th at p. 681.)

Unsatisfied, the CHA redoubled its efforts, expressing concern that peer

review would be “‘significantly undermined’” if a physician could “‘move directly into

court without completing the fair hearing process.’” (Fahlen, supra, 58 Cal.4th at p.

681.) The CHA also proposed an amendment that would have stated section 1278.5 does

not apply to any peer review disciplinary action “‘unless and until’” the physician had

“‘substantially prevailed in such action as specific in current law.’ [Citation.]’’ (Ibid.,

original italics of Fahlen court omitted.)

Again the Legislature rebuffed the CHA. (Fahlen, supra, 58 Cal.4th at pp.

681-682.) Instead of adopting the position the hospital now advocates – that the

physician must substantially prevail in the disciplinary proceedings as a prerequisite to a

section 1278.5 action – the Legislature just added a new subdivision (l) to section 1278.5.

And subdivision (l) merely said section 1278.5 is not to be construed to – and the italics

are the Supreme Court’s own here – “‘limit the ability of medical staff to carry out its

legitimate peer review activities” in accordance with the peer review statutes, Business

14 We reproduce the passage from the committee analysis; readers should note the italics are the

Fahlen court’s own: “The analysis further declared that ‘[t]he critical question, according to the principal opponents

of [Assembly Bill No.] 632, is what would happen to a pending peer review action, or to the evidentiary protections

and immunity from liability that attend peer review actions, once the member of the medical staff files a [section ]

1278.5 action? The hospital, CHA states, could very well be required to produce evidence in the [section] 1278.5

action even before that evidence has been fully developed and presented in a [m]edical [s]taff fair hearing under

[Business and Professions Code section] 809 et seq.’” (Fahlen, supra, 58 Cal.4th at p. 680, quoting Sen. Com. on

Judiciary, Analysis of Assem. Bill No. 632, supra, as amended June 6, 2007, p. 10.)

15

and Professions Code sections 809 through (at the time) 809.5. (Fahlen, supra, 58

Cal.4th at p. 681, quoting § 1278.5, subd. (l), Assem. Bill No. 632, as amended in Sen.,

Sept. 5, 2007.)15

The CHA plunged once more into the breach, this time explicitly arguing

that subdivision (h) was still “not good enough” because – and the CHA’s way of reading

the subdivision was revealing – “it ‘does not . . . address the real issue, which is allowing

someone to get into court on a retaliation claim while a peer review action is either still in

the investigatory stage[,] . . . or underway, . . . but the hearing/appeal is not yet

completed and the [hospital’s] governing body has not yet taken final action.’” (Fahlen,

supra, 58 Cal.4th at p. 682, italics added, quoting David van der Griff, CHA Legis.

Advocate, CHA, Assem. Floor Alert regarding Assem. Bill No. 632 (Sept. 10, 2007) at p.

2.)

Again the CHA’s efforts were in vain. “[T]he Legislature made no changes

in response to the CHA Assembly Floor Alert.” (Fahlen, supra, 58 Cal.4th at p. 682.)

The Fahlen court then described what the Legislature did – better said, didn’t do – this

way: “Nonetheless, the Legislature made no changes in response to the CHA Assembly

Floor Alert. Specifically, it left intact subdivision (h), in which, as noted above, the

Legislature indicated its understanding that a civil action under section 1278.5 might be

commenced, and civil discovery attempted, while peer review proceedings were still

underway.” (Ibid., italics added.)

The Fahlen court’s reading of subdivision (h) was thus more than enough

to dispose of the main issue before the high court. If Dr. Fahlen might have brought a

section 1278.5 action while first-step peer review proceedings were “underway,” then a

fortiori he need not have prevailed in a second-step judicial mandamus action in order to

file a section 1278.5 action. (Fahlen, supra, 58 Cal.4th at p. 682.) In the process the

15 Sometimes italics says more than just “pay attention.” Here they seem to express recognition of

the possibility of illegitimate peer review activities.

16

court disapproved Nesson – which clearly did require a successful judicial mandate action

prior to a section 1278.5 action – to the “extent” it was “inconsistent with our

conclusion.” (Id. at p. 687.)

2. The Plain Text of Section 1278.5

To be sure, as noted above, Fahlen doesn’t actually hold that internal

administrative exhaustion of peer review proceedings do not apply to a section 1278.5

action – though it seems to us to come about as close as possible to doing so without

actually saying so. But for appellant hospital, everything Fahlen said about subdivision

(h) is mere “dicta” because the grant of review “limited the issue” to whether a physician

was required to prevail in judicial mandate proceedings prior to commencing a section

1278.5 action. (See Fahlen, supra, 58 Cal.4th at p. 666.) In fact, appellant hospital even

goes on to take issue with the way the Supreme Court read subdivision (h), asserting the

high court read it too expansively. Accepting arguendo their argument the court’s

analysis was dicta and we have the power to disagree, we find nothing to disagree with.

First of all, even if what the Supreme Court said was, technically, dicta, that

dicta still reflects persuasive research, handed to us on a platter. And second, even if all

we had was the naked text of section 1278.5, that text would draw us to the same

conclusion as the Fahlen dicta.

The operative core of section 1278.5 for purposes of this case is subdivision

(b), which provides that “No health facility shall discriminate or retaliate, in any manner,

against any patient, employee, member of the medical staff, or any other health care

worker of the health facility because that person has done either of the following: [¶]

(A) Presented a grievance, complaint, or report to the facility, to an entity or agency

responsible for accrediting or evaluating the facility, or the medical staff of the facility, or

to any other governmental entity.” (Italics added.) The statute goes on, in subdivision

(d)(1), to establish a “rebuttable presumption” of retaliatory action if the “discriminatory

action” taken in retaliation against a complainer “occurs within 120 days of the filing of

17

the grievance or complaint.”16 And retaliatory action, according to subdivision (d)(2)

includes suspension of “privileges” of a health care worker.

Next the statute conveys the message that the remedy for retaliation for

complaining about unsafe hospital care is to be found in civil court, not peer review

disciplinary proceedings. Subdivision (g) states the remedy for retaliatory action is,

among other things, reinstatement and reimbursement for lost “work benefits” as

“deemed warranted by the court pursuant to this chapter or other applicable provision of

statutory or common law.” (Italics added.)

And then comes subdivision (h), which is not only obviously predicated on

the existence of an ongoing court action, but also envisions the possibility of a

simultaneous peer review proceeding. “The medical staff of the health facility may

petition the court for an injunction to protect a peer review committee from being

required to comply with evidentiary demands on a pending peer review hearing from the

member of the medical staff who has filed an action pursuant to this section, if the

evidentiary demands from the complainant would impede the peer review process or

endanger the health and safety of patients of the health facility during the peer review

process. Prior to granting an injunction, the court shall conduct an in camera review of

the evidence sought to be discovered to determine if a peer review hearing, as authorized

in Section 805 and Sections 809 to 809.5, inclusive, of the Business and Professions

Code, would be impeded. If it is determined that the peer review hearing will be

impeded, the injunction shall be granted until the peer review hearing is completed.

Nothing in this section shall preclude the court, on motion of its own or by a party, from

issuing an injunction or other order under this subdivision in the interest of justice for the

duration of the peer review process to protect the person from irreparable harm.”

(§ 1278.5, subd. (h), italics added.)

16 Readers should recall here that the doctor in Nesson would not have had the advantage of this

presumption, given the eight-month lag between complaint and alleged retaliation.

18

As the italicized words show, subdivision (h) gives a hospital’s medical

staff the conditional opportunity to seek a court injunction to stop discovery propounded

by a section 1278.5 plaintiff upon a showing of interference with an ongoing peer review

proceeding. Moreover, discovery can be stopped until the completion of the proceeding.

The obvious implication is that section 1278.5 actions and peer review proceedings can

coexist simultaneously. And it is in that regard that subdivision (l) – the nothing

construed to “limit the ability of the medical staff to carry out its legitimate peer review

activities” clause – is best understood: A section 1278.5 plaintiff doesn’t get to stop peer

review proceedings, but peer review proceedings can, if the right showing is made under

subdivision (h), stop discovery in section 1278.5 actions. From that structure we derive

the obvious legislative intent: The Legislature is fine with peer review proceedings

barreling on even if a section 1278.5 action is filed in civil court.

The hospital counters this analysis by arguing that the correct reading of

subdivision (h) still excludes the possibility of simultaneous peer review proceedings and

section 1278.5 actions for physicians who are themselves the object of peer review

proceedings. According to the hospital, subdivision (h) only refers to those instances

where Doctor A has brought a section 1278.5 action and needs the evidence of Doctor B

where Doctor B is at the same time the subject of peer review proceedings. In such an

instance, says the hospital, there is no need for exhaustion of Doctor B’s peer review

proceedings in order for Doctor A’s section 1278.5 action to proceed. (Resp. br. at p.

54.) On the other hand, says the hospital, if Doctor A is himself or herself the object of

peer review proceedings, Doctor A is still required to complete the peer review

proceeding before bringing a section 1278.5 action. 17

17 The hospital also posits a hypothetical involving a hospital’s retaliation against one doctor by

terminating his or her lease in the hospital’s office building for having complained of unsafe conditions at the

hospital. (See Resp. br. at pp. 54-55.) This hypothetical, along with the Doctor A-Doctor B scenario, constitutes the

sum total of the supposed “many reasons,” the hospital concludes (see Resp. br. at p. 54), that the Legislature still

wanted to require doctors who are the objects of peer review proceedings to first complete those proceedings before

bringing a section 1278.5.

19

There are two reasons this argument is unpersuasive. Most obviously, there

is nothing in the text of subdivision (h) that makes any sort of distinction between classes

of section 1278.5 plaintiffs. The hospital’s argument amounts to reading into the statute

an implied differentiation between “good” section 1278.5 plaintiffs who do not

personally face peer review proceedings, and “bad” section 1278.5 plaintiffs who do. We

cannot find a basis for such differentiation.

The second reason is, ironically, found in the one item of text on which the

hospital relies here: the use of the indefinite article “a” in subdivision (h) as in the phrase

“evidentiary demands on a pending peer review hearing from the member of the medical

staff who has filed an action pursuant to this section[.]” (Italics added.) The hospital

argues the use of the word “a” as in “a pending peer review” limits the scope of the

subdivision to good physicians (no pending peer review), and excludes bad physicians

(facing contemporaneous peer review).

The argument fails grammatically because the use of the indefinite article

“a” – as in “a pending peer review hearing” – signals exactly the opposite of what the

hospital says it means. According to the hospital, the phrase “a pending peer review

hearing” limits the set of such hearing to physicians not facing such hearings. That’s

incorrect. The use of the indefinite article in the words “a pending peer review

proceeding” signifies any pending peer review proceeding, including one brought by a

physician who has also brought a section 1278.5 action. As our high court said in Pineda

v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1396-1397: “Use of the indefinite

articles ‘a’ or ‘an’ signals a general reference, while use of the definite article ‘the’ (or

‘these’ in the instance of plural nouns) refers to a specific person, place, or thing.”

(Italics added.)

Both hypotheticals seem fairly strained to us. The natural implication of allowing doctors to be

section 1278.5 plaintiffs – which was the whole point of the 2007 amendments in the first place – is to protect

doctors from retaliation.

20

3. Policy Arguments

A continuing leitmotif in the hospital’s briefing is sheer revulsion at what

the hospital considers the self-evident absurdity of a doctor who is himself or herself the

object of peer review disciplinary proceedings being able to de facto retaliate against

medical staff for having brought a peer review disciplinary action in the first place – a

kind or retaliation for a perceived retaliation. For the hospital, the idea of doctors having

such a power is just incomprehensible and, so the hospital concludes, the Legislature

could not have possibly intended such a result.

We are sympathetic to the hospital’s concern, but we cannot put that horse

back in the barn. The hospital’s trade association fought valiantly and indefatigably on

the point in 2007, and is free to try again to get an amendment to the statute to make it

say what they want, but we don’t make policy, we explain it. (E.g., People v. Whitmer

(2014) 59 Cal.4th 733, 759.)

In that regard, we should say that two points demonstrate the Legislature’s

choice was not only rational, but also makes positive sense. The first is that the

Legislature’s essential focus in both peer review proceedings and in section 1278.5

actions is to protect the public, not the reputation of either hospitals or individual doctors.

As the Fahlen court noted, the “common aim of both schemes” is the “safe and

competent care of hospital patients.” (Fahlen, supra, 58 Cal.4th at p. 684.) And to

protect patients, it makes perfect sense to allow everybody’s dirty linen to be aired as

soon as possible, not just the complaining doctor’s.

Second, there are structural protections which prevent the abuse of section

1278.5 that the hospital fears – namely errant physicians using section 1278.5 to obtain

de facto immunity from the peer review proceeding. The common law legal dynamics of

retaliation statutes requires a prima facie showing of a causal connection between an

adverse action and the complaint that allegedly engendered the retaliation. (See Chen v.

County of Orange (2002) 96 Cal.App.4th 926, 948-949.) Absent such a showing, the

21

retaliation claim is unviable. (Id. at p. 931.) And even if the plaintiff does make a prima

facie showing of a causal connection, that merely shifts the case into the classic

McDonnell Douglas burden-of-proof ping pong.18 In that back and forth burden-shifting,

the hospital would have the opportunity to demonstrate the reason for the initiation of its

peer review proceedings was perfectly legitimate. The plaintiff would then be required to

show the initiation of such proceedings was just pretextual, i.e., the real reason was to

retaliate against the plaintiff for some earlier complaint about unsafe patient care. All

that is hardly an interference with the peer review process as long as – to allude to

subdivision (l) – the hospital’s peer review action is legitimate in the first place, i.e., not

itself retaliatory.

4. Application to the Facts at Hand

In the present case, it is clear that Armin has indeed made the necessary

prima facie showing of retaliation required by section 1278.5. The salient event for

Armin’s section 1278.5 claim is not the March 12 letter; Armin’s section 1278.5

whistleblowing claim is based on his December 2011 conversation with the hospital’s

COO in which he complained about Douglas and Clark’s lackadaisical approach to

urgent care. He alleged they would sometimes delay treatment or transfer patients for

their own convenience.19

That complaint was easily within the 120-day period of presumptive

retaliation under subdivision (d)(1) of section 1278.5, and distinguishes this case from

18 See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.

19 Once again we must resolve conflicts in the plaintiff’s favor. We therefore conclude that Douglas

and Clark’s alleged “call me in the morning” approach to brain surgery patients who may need an urgent evaluation

does indeed come within section 1278.5’s protection for complaints about unsafe patient care and conditions.

Perhaps in another context Douglas and Clark might be able to show the allegation is groundless, or that supposedly

needed urgent evaluations can always be postponed to the next day, but on this record we assume that some patients

may need an urgent nighttime evaluation from their brain surgeon.

There is also the matter of Douglas and Clark’s alleged monopoly control over RCH’s call

schedule. At first blush, that seems more a matter of economics than medicine. However, again, on this record we

will assume such monopolization has at least an indirect impact on actual patient care, in that it might deny patients

access to urgently needed brain surgery or evaluations by limiting the number of doctors available.

22

Nesson. In Nesson, the court found no relationship between the physician’s complaint

and the subsequent peer review proceedings. Here, we have at least a statutory

presumption of such a relationship. Armin complained to RCH’s COO in December

2011, about Douglas and Clark’s approach to patients, and the very next month Douglas

initiated a peer review proceeding against Armin. That is well within the 120-day

statutory presumption of retaliation set forth in subdivision (d)(1).20 We also note that

Armin had complained to RCH’s CEO as far back as 2010-2011 about Douglas and

Clark’s approach to patients. Though that fact does not entitle Armin to a presumption of

retaliation, it constitutes substantial evidence that Armin’s section 1278.5 was not just

some opportunistic legal salvo fired off when the peer review proceedings began in

January 2012.

The hospital may be able eventually to demonstrate that its instigation of

peer review proceedings against Armin was perfectly legitimate and not in any way

pretextual. Or perhaps the case will be shown to be one of “mixed motives.” (See

generally Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris) [exploring

problem of dual motives, one lawful and the other unlawful].) However, given the

standard of review on anti-SLAPP motions, we must indulge Armin’s evidence the peer

review was instigated in retaliation for his complaints about Douglas and Clark and was

founded on flimsy and insubstantial allegations of malpractice on Armin’s part.

20 This statutory presumption readily distinguishes this case from this court’s concern in Chen that

something more than mere time sequence be required to establish retaliation, lest a court fall into the post hoc ergo

prompter hoc fallacy. (See Chen, supra, 96 Cal.App.4th at p. 931.) It must also be remembered that the employee

in Chen (a deputy district attorney) was complaining about being blocked for promotion when there were already

“obviously good and legitimate reasons not to promote her[.]” (Id. at p. 931.) That’s different from a situation

where, as here, a plaintiff in Armin’s situation – not already facing some sort of adverse action – is hit with that

action after making a complaint of some sort of illegal or unsafe practice.

Moreover, given the statutory presumption, we think it makes no difference at this stage of the

litigation that Armin has yet to find a smoking gun in the form of evidence that Douglas and Clark were told of

Armin’s complaints to the COO the month prior to the initiation of the proceedings. It is a reasonable inference,

given the closeness of the sequence, that they found out somehow about his complaints about them.

23

5. The Federal Preemption Argument

As did the hospital in Fahlen, the hospital here claims immunity from

section 1278.5 proceedings by virtue of a federal statute immunizing hospitals from

damage claims arising out of peer review proceedings, namely the Health Care Quality

Improvement Act of 1986 (HCQIA) found at 42 U.S.C. § 11101 et seq.

Fahlen had something to say about the HCQIA argument too, though we

note the hospital’s brief makes no attempt to come to grips with what Fahlen actually

said. Briefly, Fahlen said this: HCQIA cannot provide blanket immunity to a hospital in

a section 1278.5 action because even if HCQIA applies to a given peer review

proceeding, “at a minimum” it still allows “such remedies as reinstatement and injunctive

relief.” (Fahlen, supra, 58 Cal.4th at p. 686.) Moreover – and we find this particularly

significant given the anti-SLAPP procedural posture of the case before us – the Fahlen

court recognized the immunity afforded by HCQIA is only presumptive and hence

rebuttable: “Moreover, it allows the presumption of immunity to be rebutted by a

preponderance of evidence that the peer review participant acted without adequate effort

to ascertain the relevant facts, or had no reasonable ground to believe, based on the

known facts, that the action was warranted on quality of care grounds.” (Ibid.) The high

court was making the point that whether HCQIA immunity applies involves factual

matters. And of course, on the record before us, such matters cannot be resolved against

Armin as a matter of law when there is conflicting evidence. We therefore need not wade

into the collateral debate that HCQIA doesn’t even apply in California on the theory the

state opted out of it.

B. Claims Against Individual Physicians Under Section 1278.5

But Armin has sued not only RCH for retaliation in violation of section

1278.5, he has also sued four individual doctors (Dozier, Nagappan, and of course

Douglas and Clark) for their roles in the initiation and continuation of the peer review

process. So we must decide whether section 1278.5 allows claims against individual

24

doctors. We conclude section 1278.5 does not allow individual doctors to be sued – even

if their motives are not honorable, as alleged by Armin here. The judgment is therefore

affirmed to the extent that it lets the four individual doctor defendants out of Armin’s

section 1278.5 suit.

Section 1278.5, focuses on the “facility” as the target defendant under the

statute. Subdivision (a), the statement of intent, expresses the Legislature’s concern that

people who work at hospitals be protected when they notify government entities of

unsafe patient care or conditions.21 Subdivision (b) is the operative subdivision,

forbidding facilities, and only facilities, from retaliating against individuals who

complain of potentially unsafe care or conditions – even if they complain to somebody

other than a government entity. The civil penalty provision in subdivision (b) confirms

the focus on the hospital-facility, by referring the reader to statutes regulating nursing

homes.22

Subdivision (d)(1), the 120-day presumption, only deals with facilities or

entities that own or operate facilities. Subdivision (d)(1) also differentiates between, on

the one hand, the facility (or owners or operators of those facilities) and, on the other

hand, the “responsible staff” whose knowledge can trigger that presumption.

Subdivision (d)(2) likewise defines retaliatory treatment, albeit

nonexclusively, in terms of the sorts of things only a facility can do, like imposing

“unfavorable changes” in working conditions. Subdivision (g), listing remedies, parallels

subdivision (d)(1)’s listing of retaliatory actions, and again identifies remedies of the sort

that can only be imposed on a facility qua facility, such as “reinstatement, reimbursement

21 For an idea of the sort of fear by doctors from retaliation by hospitals that led to the 2007

amendments, see Jones, Chapter 683: Extending Whistleblower Protections to Members of the Medical Staff of

Health Facilities (2008) 39 McGeorge L. Rev. 519, 520, fns. omitted [“Although many factors contributed to the

corruption at Tenet [the owner of Redding Medical Center, where patients were receiving unnecessary open heart

surgery], it became evident after the scandal broke that the medical staff felt that they could not speak out against the

unethical surgeons without fear of retribution.”]

22 Section 1417 et seq.

25

for lost wages and work benefits caused by the acts of the employer.” Finally, none of

the other subdivisions – except the one we are about to discuss – contain any hint of

liability for individual doctors.

The exception is subdivision (i). To impose liability on individual doctors,

Armin relies entirely on subdivision (i), which defines, for purposes of section 1278.5,

“health facility” to mean “any facility defined under this chapter, including, but not

limited to, the facility’s administrative personnel, employees, boards, and committees of

the board, and medical staff.” (Italics added.) Stressing the words “medical staff,”

Armin posits that the statute allows suits against individual doctors on the medical staff.

One searches in vain for a statutory definition of the words “medical staff.”

That is not surprising given that a separate statute in the Business and Professions Code,

section 2282, requires hospitals to adopt their own rules regarding the organization and

definition of medical staffs. There are, however, statutory limits. We know that

“medical staffs” can only include doctors and like professions, since subdivision (b) of

Business and Professions Code section 2282 restricts membership in medical staffs to

“physicians and surgeons and other licensed practitioners competent in their respective

fields and worthy in professional ethics.”

Case law likewise reflects the fact hospitals typically define “medical staff”

to encompass the entire corpus of physicians who enjoy privileges at the facility. (See

Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687,

691 [bylaws defined “medical staff” as “‘the formal organization of all licensed

physicians, dentists, and podiatrists who are privileged to attend patients in the

Hospital’”]; Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 756

[noting bylaws defined medical staff “to mean those physicians ‘who have been granted

recognition as members of the medical staff pursuant to the terms of these bylaws’”];

Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1485 [bylaws defined

medical staff as “‘those physicians, dentists, podiatrists, and clinical psychologists who

26

have been granted recognition as members of the medical staff pursuant to the terms of

these bylaws’”]; and Bonner v. Sisters of Providence Corp. (1987) 194 Cal.App.3d 437,

440, fn. 1 [bylaws defined medical staff as “physicians, dentists, and podiatrists”].)

The phrase medical staff is thus a uniplural entity, like church or team or

jury.23 Since the words certainly include doctors (the way the word jury includes its

individual members), Armin argues that section 1278.5’s definition of “facility” allows

him to sue the individual members of a hospital’s medical staff.

There are three separate reasons we reject this argument and conclude that

by “medical staff” the Legislature meant the uniplural corporate body which brings peer

review proceedings against individual members of that “medical staff” rather than

individual staff members. Reason one is a variation on that old statutory canon, ejusdem

generis, which is pedantry for: Pay attention to the kinds of things that are listed in a

series. Here, if we pay attention to the entities identified in subdivision (i) that make up

the definition of “facility,” we find they all have this in common: They are all means by

which a hospital acting as its own legal person might retaliate against a complaining

doctor, nurse or patient.

In particular, the “medical staff” is the entity (singular) in whose name peer

review proceedings under sections 805 through 809.7 of the Business and Professions

Code are brought. Business and Professions code section 809, subdivision (a)(8) – a

statute antedating section 1278.5 –speaks of medical staffs in their corporate, uniplural

23 In American English, we typically emphasize the singular in such words: “The Medical Staff is

bringing charges against Dr. Armin,” “the church is taking up a collection to help local homeless,” “the company is

lowering its prices.” The British have a tendency to emphasize the plurality inherent in such words, e.g., “Her

Majesty’s Government are going to adopt a new policy,” “the jury are going to deliberate,” “Manchester United

were unable to find the net,” and even perhaps “The Medical Staff are bringing charges against Dr. Armin.”

27

sense.24 By the same token subdivision (i) is important for what it doesn’t say: It doesn’t

say anyone who instigates a retaliatory act, or any “member of the medical staff who

instigates a retaliatory act.” It merely says “medical staff.”

Reason two is the legislative history of Assembly Bill No. 638 for the

2007-2008 legislative session, the battle over which has given us the current version of

section 1278.5 much of which we recounted in our discussion of Fahlen.) Hospitals must

have self-governing medical staffs, and those staffs must adopt rules governing

appropriate standards for patient care. The staff, in turn, acts through peer review

committees. (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10.) Thus when we look at the

legislative history of subdivision (i), we find that committee reports simply equated

“medical staff” with what hospitals do. Indeed, one of the arguments the CHA made in

opposing Assembly Bill No. 632 was that, given the independence of the medical staff in

the hospital disciplinary structure, it was unfair to “impute” the actions of the medical

staff, acting as an independent body instigating a peer review proceeding, to the hospital

itself.25

But the most basic reason to construe “medical staff’ not to mean

“members of the medical staff” is to further the legislative intent which engendered

24 Business and Professions Code section 809, subdivision (a)(8) provides: “(8) Sections 809 to

809.8, inclusive, shall not affect the respective responsibilities of the organized medical staff or the governing body

of an acute care hospital with respect to peer review in the acute care hospital setting. It is the intent of the

Legislature that written provisions implementing Sections 809 to 809.8, inclusive, in the acute care hospital setting

shall be included in medical staff bylaws that shall be adopted by a vote of the members of the organized medical

staff and shall be subject to governing body approval, which approval shall not be withheld unreasonably.” (Italics

added.)

25 This argument was made by CHA lobbyist David van der Griff in a letter to the Chair of the

Senate Judiciary Committee dated June 18, 2007, while Assembly Bill No. 632 was still under consideration, and

then later to Governor Schwarzenegger on September 17, 2007, urging his veto. The CHA’s argument was also

recounted in the Senate Judiciary Committee Bill Analysis for Assembly Bill No. 632, as amended June 6, 2007, at

page 11: “In addition to expanding the coverage of whistleblower protections to medical staff and other health care

workers, this bill would extend liability for a violation to the owner or operator of a health facility. Further the bill

would define ‘health facility’ to include the ‘medical staff’ as well as administrative personnel. According to the

opponents, under existing law a hospital medical staff is required to be a self-governing body and therefore its

actions cannot and should not be imputed to the hospital. [¶] To the proponents, however, these are simply

clarifying amendments to existing law, and do not in any way increase the liability of a health facility for its

discriminatory or retaliatory acts against a whistleblower.” (Italics added.)

28

section 1278.5 in the first place. The idea was to protect doctors who spotted problems

with hospital patient care or conditions. Applying section 1278.5 liability to individual

doctors could greatly complicate the achievement of that purpose.

Peer review proceedings are not just potential instruments of retaliation.

They can also be the instrument by which alarms about patient care can be aired. Thus

doctors Douglas and Clark have the same right to be whistleblowers about Armin’s

allegedly substandard care that Armin has to be a whistleblower about theirs. And it

makes no difference if the vehicle for Douglas and Clark’s complaints is a peer review

proceeding. Construing “medical staff” as Armin urges would make it harder to root out

bad practices rather than easier. We therefore affirm the trial court’s judgment

dismissing the four individual doctor defendants from the case.26

C. The Religious Discrimination Claims

Armin’s religious discrimination causes of action survived the defendants’

anti-SLAPP motion, and that survival is the subject of a cross-appeal by the hospital. In

denying the anti-SLAPP motion, the trial judge noted the obvious: According to Armin,

Douglas and Clark attempted to use Armin’s religion against him by imposing on him

assignments incompatible with Jewish holidays long prior to any allegations of

malpractice made against him. The court thus concluded Armin’s religious

discrimination claims do not come within prong one of anti-SLAPP analysis, and hence

were not vulnerable to an anti-SLAPP motion.

The hospital does not attempt to argue that vexatious scheduling is itself

protected activity under section 425.16 – an obviously untenable position. Rather, it

argues that because Armin’s claims here are somehow “intertwined” with, the “same

facts and circumstances currently being evaluated in hospital peer review proceedings,”

26 Armin had every right to name the uniplural unincorporated association “medical staff” of RHC in

his section 1278.5 claim because subdivision (i) says he can. But the nature of any potential remedy he might have

against that entity, singular, should he ultimately prevail, can await another day.

29

there is a sufficient connection between those claims and the peer review proceedings

themselves to bring his religious discrimination claims within the anti-SLAPP statute.

We reject the argument because it is predicated on a putative “intertwining”

which we can’t find. All of the vexatious scheduling at issue occurred prior to the

January 2012 initiation of the peer review proceeding. Scheduling aimed at

incommoding Armin’s desire to observe the Jewish holidays implicates conduct outside

of what the anti-SLAPP statute protects: peer review proceedings as “official

proceedings” under Kibler. It makes no difference that Armin first brought his

complaints about vexatious scheduling to light in his March 12 letter that also involved

his defense of the malpractice claims in the context of a peer review proceeding. In terms

of anti-SLAPP analysis, Armin could just as easily have filed a complaint concerning his

religious claims without first making any complaint to hospital management. (See

Payne, supra, 130 Cal.App.4th at p. 739 [internal peer review process did not give

physician who alleged race discrimination by hospital the right to do more

administratively than just complain; physician’s remedy was in court].)

Put another way, Armin’s religious discrimination claim is not based on

mixed protected and non-protected activity under Baral. (See Baral, supra, 1 Cal.5th at

p. 392 [“But when the defendant seeks to strike particular claims supported by allegations

of protected activity that appear alongside other claims within a single cause of action,

the motion cannot be defeated by showing a likelihood of success on the claims arising

from unprotected activity.”].) It arises entirely from the hospital’s unprotected activity

engaged in prior to the initiation of the peer review process. The hospital’s motion thus

does not get beyond prong one of anti-SLAPP analysis.

This prong one determination is sufficient for affirmance of the trial court’s

judgment as it pertains to the religious claims. We therefore do not reach the hospital’s

arguments that Armin’s religious claims are otherwise susceptible to dismissal on the

30

merits, and we express no opinion as to what might happen if the hospital brought a

summary judgment motion.

IV. DISPOSITION

The formal order of July 15, 2013, striking Armin’s section 1278.5 action

and awarding attorney fees to the hospital, is hereby reversed with directions to enter a

new order denying the motion to strike the section 1278.5 action and denying the

hospital’s request for attorney fees in conjunction with its anti-SLAPP motion. At this

point we echo the Fahlen court’s observation that trial courts may have several tools,

such as stay or delay, to insure that a section 1278.5 action does not indeed interfere with

the peer review proceedings. (See Fahlen, supra, 58 Cal.4th at pp. 684-685 [suggesting

several possibilities as to how trial court’s might accommodate both section 1278.5

actions and peer review].) We leave to the trial court further questions as to whether

Armin’s section 1278.5 action should or should not be stayed or delayed pending the

completion of the peer review proceeding. On the other hand, the trial court’s order is

affirmed to the degree that it denies the hospital’s motion to strike Armin’s religious

discrimination claims. Armin will recover his costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.

31

Filed 11/17/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SEAN ARMIN,

Plaintiff and Appellant, G052125

v. (Super. Ct. No. RIC1217004)

RIVERSIDE COMMUNITY HOSPITAL, ORDER CERTIFYING OPINION

FOR PUBLICATION

Defendants and Appellants;

MEDICAL STAFF OF RIVERSIDE

COMMUNITY HOSPITAL et al.,

Defendants and Respondents.

Our opinion filed on November 16, 2016 meets the standards for

publication set forth in California Rules of Court, rule 8.1105(c)(1), (2), (6), and (7). The

opinion is hereby ordered published in the Official Reports.

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.