Friday, April 7, 2017

How SLAPPs Go South.

Melamed v. Cedars-Sinai Med. Ctr., No. B263095 (Feb. 27, 2017)

Another case in the intersection between the anti-SLAPP statute and hospital peer review. 

The peer review at issue suspended privileges for Plaintiff, a surgeon, for messing up a child’s scoliosis surgery. Plaintiff sued, however, claiming that the suspension was, in fact, in retaliation for Plaintiff’s complaints about patient safety at the hospital. 

In a pretty short-shift analysis, the court finds that plaintiff’s claim arises from the peer review process, which is an “official proceeding authorized by law,” under Code of Civil Procedure § 425.16(e)(2). That doesn’t seem right to me, for the reasons I discussed in my post on the 2015 DeCambre case. Viz., that the peer review isn’t the gravamen of the claim for retaliation—it is the gravamen of the hospital’s defense that it had a non-retaliatory reason to discipline the doctor. 

The court goes on to find that Plaintiff failed to make a prima facie case, so his claims were properly stricken.


I’m in the middle of a trial, so I don’t have a ton of time to grock into the details of this, but here’s an unscientific, anecdotal hot take on what most likely leads to erroneous anti-SLAPP rulings: Things go sideways when plaintiffs fail to seriously contest the first, “arising from,” element, wither at trial or on appeal. I haven’t read the briefs, but that seems to have occurred here.

Unless you represent a politician suing a newspaper for defamation or something incredibly obvious like that, I don’t care how good you think your case is on the merits. You are leaving money on the table if you don’t contest prong one. As a perusal of four-year history of this publication will show, there is a ton of anti-SLAPP precedent out there. It is contradictory, confusing, and not-infrequently wrong. Wrong stuff I blogged about in 2013 is just now finally being ironed out by the Supreme Court. Often, like this case, things seem obvious when they are not. Which makes it expensive to research and understand for a non-specialist litigator who might not have a limitless budget. But this is not a place to skimp.

And on the flip side, I really wish courts would be more careful in publishing cases where the plaintiff failed to put up a serious fight on prong one. Don’t publish. Or just say the issue was conceded, or waiver, or whatever. But holding, in published opinion, that the arising from prong has been met based on an argument that has not been thoroughly or vigorously made by a party just leads to more confusing and contradictory precedent.

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