... is for good men to do nothing.
Retaliation Against Physicians - George Kibler, M.D.Kibler v. Northern Inyo County Local Hospital District
(Physician Civil Suit Re Abusive Peer Review, Motion by Hospital Asserting Suit is Abridgment of First Amendment Rights)
Issue: The primary issue in the case is whether a hospital can attack a physician’s civil suit against peer reviewers for abusive peer review by successfully characterizing the suit as an “Strategic Litigation Against Public Participation,” or “SLAPP” suit. If the court agrees that a damages lawsuit by an aggrieved physician against peer reviewers for abusive peer review qualifies as a SLAPP suit subject to a motion to strike, the in terrorem effect derived from the threat of being saddled with the per reviewers’ or hospital’s legal fees for bringing the motion to strike will effectively put an end to any physician ever challenging a peer review action again.
In this case, a physician sued his peer reviewers and the hospital for money damages alleging unjustified and abusive peer review activity against him. The defendants asked the court to strike the lawsuit based on the argument that the suit chills the peer reviewers’ and hospital’s right to carry out first amendment activities of speech and redress to government that they allege constitutes peer review activity. In the alternative, they argue that a district hospital is a governmental agency in the first instance, and therefore the protection of the anti-SLAPP suit should apply. The California Supreme Court has agreed to review this case.
On September 9, 2005, CMA filed an AC brief on behalf of the physician. CMA argues that there was no delegation of peer review responsibilities to peer review bodies on behalf of the Medical Board, and that a district hospital’s peer review activity should not be viewed as a governmental action for purposes of the anti-SLAPP statute. Further, the legislature already determined that physicians can sue peer reviewers subject to a host of statutory immunities protecting peer reviewers, as well as the requirement to exhaust all remedies before suing. CMA’s brief argues that application of the anti-SLAPP statute to dismiss such actions would upset the longstanding legislative scheme regarding such suits and would violate the intent of the Legislature.
Outcome: On July 20, 2006, the California Supreme Court unanimously ruled that the Anti- SLAPP statute applies in peer review cases, and permits the defendant peer reviewer(s) to require the suing doctor to show the court “up front” that the lawsuit has a probability of prevailing. Failing that hurdle, the physician’s lawsuit will be dismissed, and the physician will be responsible to reimburse the peer reviewers their attorneys fees in bringing the anti-SLAPP motion.