Doctor Allowed to Pursue Claims Despite Application of California’s Anti-SLAPP Law In a recent opinion, the California Court of Appeal, Fourth District, held that the former chair of the Department of Orthopedic Surgery at Palomar Medical Center could pursue his various claims brought against the hospital and staff members who initiated a peer-review action against him despite the application of California’s anti-SLAPP [Strategic Lawsuit Against Public Participation] law. O’Meara v. Palomar- Pomerado Health System, 2007 WL 731376 (Cal. App. 4 Dist. March 12, 2007).

The surgeon, Dr. Patrick O’Meara, filed suit against the hospital and staff members who initiated a peer review action against him after he was placed on probation as a disciplinary measure. Dr. O’Meara was disciplined because the hospital found he had made inappropriate comments to a patient’s family regarding the involvement of a managed care company in the patient’s medical treatment decisions. Each of Dr. O’Meara’s claims arose as a result of two distinct actions: the initial probation imposed in February 2000, and a one-year extension of that probation imposed in April 2001.

The Court held that Dr. O’Meara’s claims were governed by the anti-SLAPP law, which allows a special motion to strike lawsuits involving meritless claims that challenge the exercise of constitutionally protected speech on matters of public interest and/or in connection with an “official proceeding.” In reaching its decision, the Court relied upon Kibler v. Northern Inyo County Local Hospital Dist., 39 Cal. 4th 192 (Cal. 2006), where the California Supreme Court ruled that a hospital peer-review proceeding constitutes an “official proceeding” under the law. Despite the applicability of the anti-SLAPP law, the Court concluded, “once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.” Dr. O’Meara’s claims included unlawful retaliation in violation of Business and Professions Code section 2056(c), violation of his constitutional free speech right and common law right to fair procedure, and other tortious acts constituting defamation, intentional infliction of emotional distress, and interference with prospective economic relationships. Because each of Dr. O’Meara’s claims could be supported based solely on the factual allegations pertaining to the second probation, the Court held that he had effectively established a probability of prevailing on his claims. Therefore, the court affirmed dismissal of the defendant’s anti-SLAPP motion.

The defendant’s only reprieve was a procedural tactic targeting Dr. O’Meara’s failure to exhaust judicial and administrative remedies before filing an action for damages. The Court found that the defendants met their burden to show their asserted exhaustion defense would bar the claims associated with Dr. O’Meara’s first probation. However, with respect to the second probation, the Court concluded that Dr. O’Meara was not required to exhaust his judicial remedy because he was not provided any form of quasi-judicial hearing. Dr. O’Meara was not provided any advance notice that his probation was being extended, and was given no opportunity to present his version of the facts or to challenge the charges before the probation was imposed. The Court concluded that under those circumstances, the exhaustion of judicial remedies would not bar a tort action.