... is for good men to do nothing.
Legal Analysis of AB 632
3835 Ardley Ave.
Oakland, CA 94602
Date: August 10, 2007
SUBJECT: Analysis of AB 632, Anti-Retaliation Bill, and Suggested Amendments
I have reviewed several proposed amendments to AB 632 dealing with the issue of how this bill should operate when a physician alleges that a pending peer review proceeding is itself “retaliation” prohibited by the bill. The question raises a number of critical issues that have not been addressed by the bill as yet, nor by any of the proposed amendments we have talked about to date. I provide analysis of these issues, and also suggest amendments at the end of this memo.
The debate on this bill has not yet taken into consideration the effect of the state’s anti-SLAPP statute (C.C.P. §425.16) on anti-retaliation claims under this bill. Once it is understood how to easily make the anti-SLAPP statute fit in to the equation in this bill, all expressed concerns against stopping an ongoing retaliatory peer review proceeding, reversing a retaliatory summary suspension or restriction, or permitting disclosure of evidence protected by Evidence Code Section 1157 go out the window. The anti-SLAPP statute permits the physician’s claim of an ongoing retaliatory peer review (or summary action) to be “tested” almost immediately upon filing the lawsuit against the health facility. There is no discovery permitted during this “test” period, and the peer review action or proceedings continue unaffected. If the “test” shows the physician’s lawsuit is unmeritorious, the case is dismissed, often within about 90 days after the physician files the anti-retaliation lawsuit. If the physician’s case survives the test, then and only then does the physician’s litigation proceed.
This “testing” procedure is already law under C.C.P. §415.16, and is exercised at the option of the defendant health facility in a “special motion to strike.” The physician cannot avoid this test of the merits of his lawsuit. This means the physician has to have sufficient evidence in his hand before filing the lawsuit in order to show the judge that he has a greater than 50% likelihood of winning the case. That’s the law.
California law provides another wrinkle to that analysis, however. Specifically, the common law “exhaustion of remedies” doctrine requires that a physician cannot challenge a peer review action until that action is final. If the physician faces an anti-SLAPP motion to strike under this bill when challenging an ongoing peer review action, the fact that the action has not come to “finality” means the physician cannot challenge the peer review action in any way, he loses the motion to strike, and the anti-retaliation litigation is dismissed.
In order for the anti-SLAPP motion to do its work for this bill, we would have to make an exception to the exhaustion of remedies requirement. Once that exception is in place for this kind of claim, and the salutary effects of the anti-SLAPP motion are acknowledged, the question becomes not how to protect the peer review system when an anti-retaliation claim is filed. Rather, the question becomes how to protect the physician whom the court rules actually has a meritorious anti-retaliation suit to pursue. In that case, the court should be required to stay the summary peer review action or peer review proceedings when it has determined, after an anti-SLAPP motion to strike, that the underlying peer review action or proceedings are more-likely-than-not retaliatory. Further, and for the same reasons, there should be no concerns about discovering evidence protected by Evidence Code section 1157 once the physician successfully defeats the motion to strike and the litigation ensues. We can also include a provision that prohibits discovery of otherwise 1157-protected evidence if it is sought for the always-improper purpose of demonstrating disparate peer review enforcement in the facility.
The amendments suggested at the end if this memo include:
STOPPING AN ONGOING RETALIATORY PEER REVIEW ACTION
The physicians’ comments I have seen (from Drs. Hansen, Mileikowsky and Rogan) all emphatically agree that the bill should not halt an ongoing peer review action that is retaliatory. They focus heavily on the legal hurdles to obtaining evidence protected under Evidence Code section 1157, but comment not at all on the anti-SLAPP statute, and do not understand the implications of failing to provide a remedy “up front” to halt ongoing peer review after the court rules in favor of the physician on an anti-SLAPP motion.
There is no need to debate how evidence is to be acquired for an anti-retaliation claim if the physician is expected to go through the entire peer review process regardless what happens in the anti-retaliation claim. It is the abuse of the peer review process that is retaliatory, even before it ever imposes an unjust termination or restriction of privileges. That retaliation should be held in abeyance if the physician shows the court a probably-meritorious case when defending against the defendant’s motion to strike. Unless the physician has an opportunity to challenge and halt a retaliatory peer review under this bill, the bill is meaningless. The health facility would have succeeded in wreaking its retaliation on the physician even in the face of the anti-retaliation claim.
There is little hope of remedy for a retaliatory peer review by requiring the physician to endure the entire peer review process. The probability that, after going through the entire peer review process, an adverse peer review decision is overturned on appeal is very slim, even if the peer review was retaliatory. First, peer review actions can take years to go through hearing and all appeals to reach finality. Therefore, a peer review action can deplete the physician of his financial resource even before being able to appeal the hospital’s decision to the courts. This fact makes the act of peer review abuse itself a retaliation.
Second, the law’s standard of review that the hospital board employs when reviewing the hearing panel’s adverse decision, and the legal standard of reviewed employed by the courts reviewing the hospital board’s decision, places an almost insurmountable presumption of correctness on the hospital board’s “ultimate” decision after peer review.
Third, once the courts affirm the adverse peer review decision against the physician at the end of all appeals, the matter is res judicata, i.e., the result cannot be challenged as retaliation in any other court. Some say this long, expensive, and lopsided hearing-and-appeal journey is the best way to determine if a peer review case is a sham. Nor is it sensible to reinstate the physician while permitting the peer review to proceed. But once the retaliation is pulled off either at the hearing or at the hospital board level, the factors discussed above clearly illustrate the horrendous toll sham peer review takes on the physician in time and personal and financial resources. These factors make it almost impossible for a physician to successfully challenge a truly sham peer review without being able to resort to some “outside” forum (such as the civil courts under this bill), presuming he or she has the emotional and financial resources to do so. The question is whether such a challenge can be done fairly without harm to the ability of medical staffs to perform legitimate peer review. The answer is “yes.”
THE CURRENT BILL ARGUABLY PERMITS CHALLENGE TO AN ONGOING PEER REVIEW ACTION
The current statute permits a claim of retaliation even if the retaliation is only “threatened.” (Health & Safety Code § 1278.5(d).) The commencement of a retaliatory peer review action is most certainly a “threatened retaliation” to the degree it bodes a retaliatory termination of privileges. It is also an ongoing retaliation of its own that can take many months or years to bring to conclusion.
The current version of the bill also permits the court to provide a prevailing physician monetary compensation, reinstatement (presumably of privileges and membership on the medical staff), as well as “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” (July 17 amendment, subsection (g).) As for an ongoing peer review action, it is unclear how monetary compensation could be assessed for the physician if the peer review action the court finds is a sham cannot be halted by that same court. Adequate relief, in any case, must include an injunction halting the ongoing sham peer review or lifting a summary suspension. If medical staff members are added to the bill, these provisions provide a strong argument that, at least on its face, the current version of the bill contemplates that an ongoing peer review could be subject to challenge as retaliation and ordered by the court to be halted.
The fact is, however, other California law (of which I’m sure the bill’s opponents are well-aware) prohibits a challenge of any ongoing peer review action regardless of the contents of this bill. The common law doctrine of exhaustion of remedies, as discussed below, would bar the physician from bringing a suit under this bill, and bar a judge from exercising powers to halt an ongoing retaliatory peer review. By keeping in mind the anti-SLAPP motion to strike, and addressing the exhaustion or remedies doctrine in the bill, I believe this bill can permit physicians to challenge an ongoing retaliatory peer review before it destroys his or her life, career and finances, still protect the integrity of the states’ peer review system, and protect the integrity of any ongoing peer review that pertains to the physician filing suit under the bill.
LAWSUITS ATTACKING PEER REVIEW ARE ALREADY SUBJECT TO A PROCEDURAL “TEST” TO SEE IF THE LAWSUIT SHOULD GO FORWARD
A major concern in permitting a physician to challenge the propriety of an ongoing peer review action in civil court is the fear that the suit will be filed solely to harass or intimidate those involved in prosecuting the peer review action, or to otherwise delay those proceedings. When such a suit concerns a peer review action (whether current or completed), it is known as a “strategic lawsuit against public participation,” or SLAPP suit. Current law provides a mechanism to “test” whether the physician’s lawsuit is a SLAPP suit before permitting the suit to go forward. The “test” is known as a “special motion to strike.” (C.C.P. §425.16.) The defendant files this motion with the court shortly after the physician’s lawsuit is filed in order to determine “up front” whether the suit has any “legs.” If the physician fails to show that it does, the suit is dismissed.
Attorneys fees provisions provide huge incentives. In response to the defendant’s motion to strike under the anti-SLAPP statute, the physician must show the court that he or she has a greater than 50% probability of winning, or else the lawsuit suit will be dismissed. If the suit is dismissed, the physician is required to pay the defendant’s attorney’s fees and costs in filing and prosecuting the motion. (C.C.P. §425.16(c).) These fees are likely to be tens of thousands of dollars, at least.
On the other hand, if the defendant loses the motion and the lawsuit proceeds, the physician is entitled to attorney’s fees and costs only if the court finds that defendant’s special motion to strike was frivolous or was solely intended to cause unnecessary delay. (C.C.P. §425.16(c).) A defendant’s motion to strike that has “substantial justification” for its filing cannot be found “frivolous” by the court, even if the defendant loses the motion to strike. So the cards are significantly “stacked” against the physician obtaining attorneys fees even if his case is permitted to go forward.
These attorney fee provisions provide an extremely strong incentive for the defendant sued by a physician under this bill to file the motion to strike very early on. (The anti-SLAPP statute requires the motion to be filed within 60 days of the filing of the suit.) Further, the fact that the physician must show “up front” that he or she has a probability of prevailing if the claim were litigated to completion, and the fact that the physician will be paying his or her own attorney’s fees and the defendant’s fees if the physician unsuccessfully defends against the motion, offer extremely strong incentive for the physician to file only a clearly provable retaliation claim under this bill. Again, it is the anti-SLAPP statute that sets up this playing field, not the bill itself.
Thus. the special motion to strike available under the anti-SLAPP statute permits the defendant tremendous power to assure that a physician’s claim aimed at halting a legitimate and ongoing peer review action simply goes nowhere, and has no effect on the peer review action itself.
Only “paper” evidence is permitted. The special motion to strike must be based solely on “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (C.C.P. §425.16(b)(2).) The discovery rights of the parties in the lawsuit are suspended once the motion to strike is filed by the defendant. Thus, the motion is handled strictly “on the papers,” and there are no witnesses, no depositions, and no opportunity to intimidate past or potential witnesses in the peer review action in order for the court to process the motion. All the while, any underlying peer review proceeding continues unaffected.
This remedy for an unfounded anti-retaliation lawsuit can happen very quickly. The defendant’s motion must be filed within the first 60 days of the suspect lawsuit, but the court may grant the filing at any later time at its discretion. The motion must be heard within 30 days of its filing, subject to court’s docket. (C.C.P. §425.16(f.)) Thus, the motion to strike the physician’s anti-retaliation claim can be filed by the defendant as soon as it is served with the physician’s lawsuit, and can result in dismissal of the suit in 90 days, more or less, after the civil complaint is served on the defendant.
The motion to strike is a sensitive test, useful to protect the peer review system. California’s anti-SLAPP “special motion to strike” provides an exquisite mechanism to test whether a physician who claims retaliation by ongoing peer review has a legitimate basis for his claim before expending time and resources of the defendant(s) and the court on a full-blown litigation of the matter. If the physician has a good case, i.e., if he shows that he has a greater than 50% likelihood of prevailing in the anti-retaliation claim, our questions should then focuses on (1) what the court should do at that point about the offending peer review action, if anything; and (2) what other power the courts should exercise, if any, regarding the peer review proceeding at various other points in the superior and appellate court treatment of the anti-retaliation claim.
THE EXHAUSTION OF REMEDIES HURDLE
In an anti-SLAPP motion under this bill, the physician must show a probability of prevailing on the case up front, or the case is dismissed. Under current law, however, if the peer review proceeding is ongoing and not final, the physician’s case cannot survive the motion to strike. This is because long-standing state law requires that the peer review must be “final” before being subject to challenge outside the peer review forum itself, or before the physician may seek monetary compensation for abuse of the peer review process. This is known as the “exhaustion of remedies” doctrine. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465. Further, the final decision of the peer review must be in the physician’s favor. Thus, neither the physician being reviewed, nor the hospital or its medical staff, may resort to the courts or any other venue outside the peer review proceeding itself to challenge any aspect of an ongoing peer review proceeding, or to obtain compensation for retaliatory peer review.
Therefore, unless there is a final decision in the ongoing peer review challenged as retaliatory, the anti-retaliation bill is worthless to physicians as regards challenging an ongoing peer review or a summary action that is not final.. (The bill still protects physicians from other kinds of retaliation, such as retaliatory cancellation of a contract.) They can neither stop the underlying peer review process, nor collect compensation for the retaliation that has “occurred” thus far. The law cannot begin to recognize that the retaliation has occurred at all until after the peer review is final and the physician obtains a favorable decision.
The bill should contain an exception to the exhaustion of remedies requirement. In light of this analysis, I believe the bill should permit an attack against an ongoing retaliatory peer review action. It should make clear that the exhaustion of remedies requirement does not preclude a claim of retaliation, or remedies, under the anti-retaliation statute. I have provided suggested language at the end of this memo.
CONFIDENTIALITY ISSUES RAISED BY EVIDENCE CODE SECTION 1157
Current law applies a significant confidentiality protection to the records and proceedings of peer review. (Evidence Code §1157.) Section 1157 prohibits the compelled disclosure (i.e., discovery) of such evidence in civil litigation, which would also include litigation regarding retaliation under this bill. As one court stated:
Section 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity. [Footnote omitted.] It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.
(Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 115 Cal.Rptr. 317, emphasis added.) Based on those purposes of section 1157, the concerns expressed about the effects of section 1157 as a bar to the physician in obtaining evidence are easily remedied. The physician seeking his own peer review-protected records cannot be considered “external access.” The express language of section 1157 itself concurs with this fact, by providing a clear exception to disclosure of evidence in cases where the physician is attempting to regain his or her privileges, i.e., in a peer review action. (Evid. C. §1157(c).) Clearly, the Legislature did not believe that disclosure on that basis harmed the salutary purposes of section 1157 listed above.
A physician should be able to get all records relevant to his anti-retaliation case to the same degree as those relevant to his peer review case. It is just as important to permit the physician to obtain any and all evidence to support a lawful claim of retaliation under this bill as it is for a physician to obtain the information to protect or regain his or her privileges. In each instance, the physician already obtains all such evidence in advance of the commencement of the peer review case. When the physician appeals the results of the peer review hearing to the hospital board and the courts, that evidence, plus the entire record transcript of the hearing, become part of the court record. As with a post-peer review challenge in the courts, an anti-retaliation claim under this bill would cause otherwise protected peer review evidence to be part of the court record. In either case, the physician is the one seeking to use the evidence to protect his or her rights. In neither of the two cases can use of such evidence be considered “external access to peer investigations conducted by staff committees” when it is the self-same physician that utilizes the information in court in both instances. An exception to section 1157 permitting such evidence to be obtained and used by the parties under this bill poses no greater threat to the peer review system in the state than does its use by the physician who directly challenges the results of peer review on appeal to the courts.
Disclosure of Peer review-protected evidence cannot harm patients. The current version of the bill, subsection (h), would permit the judge to review peer review evidence in camera to determine whether the use of the evidence would “impede the peer review process or endanger the health and safety of patients of the health facility during the peer review process.” There can be no argument that the “health and safety” of patients would be endangered by use of the evidence. The evidence is historical only, has no effect on ongoing activities within the health facility at issue, and cannot adversely impact patient care.
Discovery of peer review-protected evidence regarding the physician himself cannot “impede the peer review process.” There is no basis to assert that the physician’s use of evidence from his own peer review action for purposes of his anti-retaliation lawsuit could possibly “impede the peer review process,” any more than using such evidence in the courts on appeal of the physician’s own peer review.
Discovery of peer review-protected evidence that does not relate to the physician or his or her own peer review charges. There may be a concern that, without the availability of objection under section 1157, the physician would seek to discover peer review-protected evidence showing “disparate treatment,” the medical staff’s failure to discipline other physicians as to matters that should result in peer review action under sections 805 and 809 et seq. of the Business & Professions Code. Such evidence can never be relevant to the physician’s anti-retaliation claim, contrary to the assertions of some doctors. Peer review is never retaliatory if it is based on valid concerns regarding the physician’s behavior or quality of care. The failure of a medical staff to overlook the physician’s poor quality of care or bad behavior to the same degree it allegedly overlooks those same concerns in other medical staff members cannot be considered retaliation in the eyes of the law, or for purposes of patient protection.
While there is definitely be a very big problem in the uneven or unequal prosecution of peer review discipline in a health facility, that problem cannot be remedied in this legislation. The trial court should bar discovery of such evidence (whether documentary or through depositions), not based on Evidence Code section 1157, but because such evidence is not relevant. This is the stuff of garden-variety discovery motions and the courts are well-equipped to handle it.
We should include a provision in the bill prohibiting a “disparate peer review” argument as a basis for a claim of retaliation, and the production of evidence that would support such an argument.
Discovery in the post-“motion to strike” period. If the physician should prevail against the motion to strike, full-blown discovery of relevant 1157-protected evidence, and other evidence, will ensue. This phase will likely include requests for documents, and subpoenas of witnesses in (or relevant to) the peer review action to compel their depositions. In order for full-blown discovery to begin in the litigation, the court will have already determined that the peer review proceeding is likely retaliatory, so there is nothing there left to protect under section 1157 per se. The court retains the power to sustain discovery objections based on, e.g., privacy and relevance, as discussed above.
The anti-SLAPP special motion to strike provides an excellent test to protect the state’s peer review system from unmeritorious anti-retaliation lawsuits. It is a test that will be used in these cases, and the plaintiff-physician will have no choice in the matter. Presuming the legislation includes an exception to the exhaustion of remedies requirement in this class of cases, thus permitting the merits of the retaliation claims to be tested in the motion to strike, there is no valid reason to exclude any relevant evidence from discovery once the physician’s case has survived that motion. Further, given the anti-SLAPP motion’s heavy burden to show likelihood of prevailing, and the provision requiring payment of attorney’s fees if the physician fails to win against the motion to strike, only the foolhardy would file an anti-retaliation claim based on ongoing peer review under this bill unless the merits of the case were exceptionally good. Therefore, there will be very few cases in which the physician will claim ongoing-peer-review-as-retaliation under this bill. This should remove any serious concerns by hospitals or medical staffs about such claims of retaliation.
The in camera provision under the bill’s current subsection (h) is not necessary, as discussed in the body of the memo. In the post-motion to strike period of the lawsuit , where the physician prevailed in the motion to strike and the lawsuit is proceeding, any and all relevant 1157-protected information should be permitted in discovery. Other objections, however, are more critical, such as privacy objections that go with disclosing patients’ names and medical histories, relevance objections against an effort to use evidence to show disparate prosecution of peer review in a facility, and burdensomeness objections that go with overly broad discovery requests. Other than the “disparate peer review” theory, these are matters that civil courts deal with all the time in discovery, and in camera review by a judge is always available for those purposes. With a provision suggested below regarding discovery to prove “disparate peer review,” the court will be well-equipped to handle all these discovery matters.
B. ADD – (1) The peer review proceeding as retaliation itself; and (2) exception to the exhaustion of remedies requirement.
To make clear that the whistleblower statute applies when a peer review action is alleged as retaliation itself, I recommend adding a provision (perhaps a new subsection (h)) explicitly asserting that the doctrine of exhaustion of remedies doctrine does not preclude a physician from asserting the protections of the whistleblower statute:
(h) Notwithstanding any other provision of law, a complainant who is member of a medical staff may claim and prove a violation of this section when the alleged discrimination or retaliation is (1) a summary action taken by a peer review body under color of Business & Professions Code §805, or (2) the commencement and prosecution of peer review proceedings, whether still pending or final, under color of Business & Professions Code § 809 et seq.
The provision makes clear that a physician may allege that the retaliation constitutes (1) commencement or prosecution of peer review proceeding or (2) any summary action taken by a peer review body, such as summary suspension/summary restriction of privileges. It is important that summary actions be included in the bill as a proper subject for an anti-retaliation claim, because summary suspension is the quickest and easiest way to retaliate against a physician. Further, it makes clear that a peer review proceeding can be the subject of a claim even though it is still pending, so as to ensure the exhaustion of remedies doctrine does not serve to keep the physician out of court under this bill.
Again, the anti-SLAPP motion under C.C.P. §425.16 would very quickly determine whether there were any substance to the physician’s claim that the summary suspension was retaliation.
C. ADD – Discovery of all relevant documents; documents showing disparate peer review enforcement not relevant.
I recommend adding a new subsection (i) stating clearly that all relevant evidence otherwise protected by section 1157 should be permitted in discovery. Bear in mind that discovery does not take place until after the physician prevails against the motion to strike and the court has ruled that the physician’s case has a greater than 50% probability of winning.
Further, the statute should be clear that disparate quality enforcement in a health facility is not grounds for a retaliation claim and not grounds to discover evidence that reflects same:
(i)(1) For any claim under this section, the provisions of Evidence Code section 1157 shall not serve as a basis for objection by any party to the discovery of relevant evidence. Nothing in this section shall preclude a court from ruling on objections to discovery on any other grounds provided under the law.
(i)(2) A claim of discrimination or retaliation under subsection (h) of this section shall not be supported by evidence that a health facility failed to take action against any other member of the medical staff pursuant to sections 805 or 809 et seq. of the Business & Professions Code.
D. ADD – Court authority to stay the peer review action, and lift summary suspension, when the court finds it is likely to be retaliation
In those rare cases where the motion to strike shows the physician’s claim of peer review-as-retaliation is likely to be correct, the court should be obligated by law to reverse any summary action, and stay any ongoing peer review action, based on the claims, for the duration of the litigation. This is a just result, as it makes no sense to permit continuation of peer review proceedings that are more-likely-than-not retaliatory. If the physician ultimately loses the litigation, then the action/proceedings can be reinstated. If, on the other hand, the physician prevails in the litigation and through all appeals, the order lifting/staying the peer review becomes permanent. If the physician loses at any point along the way after the motion to strike (including in the appellate courts), the order becomes null and void automatically, even if there is further review by an appellate court still available.
Unfortunately, it may be politically more feasible, and would require less modification of the bill, simply to give discretion to the trial judge to lift a retaliatory summary suspension or stay a peer review proceeding, rather than make it mandatory. Therefore, I offer wording on both concepts to choose from.
Giving discretion to judge to lift or stay pending peer review action: To give such discretion, the following may be added under a new subsection (j):
D. In any claim described under subsection (h) of this section, the trial court shall exercise its discretion to order the summary action reversed, or the peer review proceedings stayed, whichever applies, or both, or issue any other order the interests of justice may require, pending the outcome of the trial court proceedings.
Making mandatory the judge’s order to lift or stay a pending peer review action. A more just approach, however, is to require the trial court to issue a lift or stay order under the appropriate circumstances, such as when the physician prevails (1) in the motion to strike and after all appeals thereon, and/or (2) in the litigation itself. Such language could be as follows, in new subsection (j):
(j) In any claim described under subsection (h) of this section:
1 where the plaintiff successfully defends against a special motion to strike under C.C.P. § 425.16, the court shall order the summary action reversed, or the peer review proceedings stayed, whichever applies, or both, pending the outcome of any appeal of the ruling on the motion to strike.
2 In the event the motion to strike in subsection (j)(1) is not appealed by any party, or if the plaintiff prevails on appeal of the motion to strike, the court’s order reversing the summary action, or the court’s order staying the peer review proceedings, whichever applies, or both, shall remain in effect until the conclusion of the trial court proceedings relating to the claim.
3 If the plaintiff does not prevail in the trial court proceedings related to the claim, the court’s order in subsection (j)(1) shall be automatically lifted pending the outcome of any appeals. If no appeals are filed or concluded, the court’s order shall be permanently and automatically lifted.
4 If the plaintiff prevails on the claim in the trial court, the court’s order in subsection (j)(1) shall remain in effect until after all appeals are final, at which time, if the plaintiff prevails in the claim upon conclusion of all appeals, the order shall become permanent.
5 If the plaintiff does not prevail on the claim in the trial court proceedings, the order in subsection (j)(1) shall be automatically lifted, and shall remain lifted until the conclusion of all appeals relating to the claim.
6 If, at the conclusion of the litigation relating to the claim, and after all appeals are final, the plaintiff prevails in the claim, the court issuing the final ruling on the claim shall issue a permanent order reversing the summary action, or staying the peer review proceedings, whichever applies, or both, or shall issue any order it deems warranted in the interests of justice.
7 If, at the conclusion of the litigation relating to the claim, and after all appeals are final, the plaintiff does not prevail in the claim, any order still in effect under subsection (j)(1) shall be automatically lifted.