Peer Review Does Not Insulate Discrimination Claim

Armin v. Riverside Cmty. Hosp., No.G052125 (D4d3 as modified Dec. 16, 2016)

There have been a bunch of cases over the past few years involving the intersection of the anti-SLAPP statute, public university hospital peer review processes, and discrimination claims brought by doctors whose admittance privileges are governed by peer review processes. 

In this case, after getting into a beef with the two other brain surgeons who controlled the OR schedule, Surgeon found himself being offered only OR shifts that conflicted with his religious obligations as an observant Jew. Surgeon complained to Hospital management about potential discrimination. He also complained about substandard care. That led the two doctors to lodge malpractice complaints against Surgeon with the Hospital’s peer review committee.

After some procedural confusion, the peer review committee recommended a suspension for Surgeon, but a full hearing was never held and his suspension was never reviewed by Hospital’s board. The process was cut short because Surgeon sued Hospital and the two other surgeons who instigated the peer review, claiming: (1) violation of a hospital employee whistleblower protection statute in Health & Safety Code § 1278.5; and (2) religious discrimination under the Unruh Act.

Because Surgeon alleged that the peer review was the instrumentality of retaliation on his whistleblower claim, the parties did not dispute that it “arises from” the peer review, a “public proceeding” under the anti-SLAPP statute. So the main issues there go to the merits. Without going too far into the weeds on doctor-employment law, in a very cogent analysis, the court explains that: (1) Surgeon didn’t need to exhaust the peer review process to bring a § 1278.5 claim against Hospital, but (2) the other surgeons are not proper defendants under § 1278.5.

As to the discrimination claim, the instrument of the discrimination on that claim was the Hospital’s vexatious scheduling practices that discriminated on the basis of Surgeon’s religion. All of those acts occurred prior to the institution of any peer review. Thus, this claim did not arise from protected activity.

So the trial court is reversed for granting the motion on the § 1278.5 claim and affirmed for denying it as to the Unruh Act claim.