Nesson v. Northern Inyo County Hospital: Physician's FEHA Action Based On Revocation of Privileges Properly Dismissed on Anti-SLAPP Motion

In Nesson v. Northern Inyo County Hospital (2/10/12) 204 Cal.App.4th 65, a physician sued a hospital after its medical executive committee (MEC) summarily suspended his medical staff privileges, and the hospital terminated his contract to provide medical services. The physician, Nesson, brought causes of action for discrimination and retaliation, among others.

The trial court granted the hospital's special anti-SLAPP motion to strike, finding that the MEC's decision to terminate Nesson's privileges was protected activity, that the hospital's decision to terminate his contract to provide medical services was "inextricably intertwined" with the MEC's decision and thus also was protected, and that Nesson could not establish a probability of prevailing on the merits. Id. at 75-76. Nesson appealed, and the Court of Appeal affirmed.

First, the Court noted that the anti-SLAPP statute protects hospital peer review proceedings regarding staff physicians as "official proceeding authorized by law":

Even though the proceedings are conducted by private parties, the peer review procedure is required by law (Bus. & Prof. Code, § 805 et seq.), the proceedings are subject to judicial review (by administrative mandamus) and the proceedings involve "matters of public significance" (§ 425.16, subd. (a)) (quality of hospital care). 

Id. at 77-78.
Regarding Nesson's discrimination claims in particular, the Court held: 

Nesson's retaliation and discrimination claims are also founded on his contention that he could not be terminated based on the summary suspension. With regard to the FEHA and Unruh causes of action, Nesson maintains the Hospital terminated him for a perceived disability and refused to offer him accommodations. But the anti-SLAPP statute applies to claims made in connection with the protected activity, regardless of the defendant's motive, or the motive the plaintiff may be ascribing to the defendant's conduct.

Id. at 83. The Court noted that Nesson failed to introduce any evidence of discrimination or retaliation that was not connected to the suspension of his privileges. Id. at 84. 

Having held that the hospital properly showed that it had engaged in protected activity, the Court turned to the second prong of the anti-SLAPP analysis: whether Nesson could show a probability of success on the merits. A physician whose suit arises from peer review action cannot sue for damages unless he exhausts his administrative and judicial remedies.  This includes obtaining a writ of mandamus to overturn the negative disciplinary action taken against him. Id. at 84-86. A plaintiff who fails to do so cannot demonstrate a probability of prevailing on the merits. Ibid. 

With regard to Nesson's discrimination claims in particular, the Court held: 

[T]he FEHA requires the Hospital to know or be aware of Nesson's alleged disability. Without such knowledge, the Hospital had no way of knowing if Nesson was, indeed, disabled, or whether it could accommodate Nesson. In this case, the Hospital initiated an investigation, but Nesson refused to cooperate, so whether or not a disability or reasonable accommodation existed could not be determined. The MEC had decided a failure to suspend Nesson summarily "may result in an imminent danger to patients" based on "recent incidents of substandard and dangerous patient care and on an observed abrupt change in [his] behavior characterized by volatile and erratic actions." At the time the Agreement was terminated, the evaluations had been requested to determine whether Nesson could perform his job. The MEC had initiated an investigation to learn whether corrective action was warranted but Nesson refused to comply.

Id. at 88.  

The opinion is available here.