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Melamed v. Cedars-Sinai Medical Center

California Court of Appeals, Second District, First Division

February 27, 2017

HOOMAN MELAMED, Plaintiff and Appellant,
CEDARS-SINAI MEDICAL CENTER et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. BC551415, Michael M. Johnson, Judge. Affirmed.

          Greene, Broillet & Wheeler, Mark T. Quigley, Christian T.F. Nickerson; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Appellant.

          Glaser Weil Fink Howard Avchen & Shapiro, Patricia L. Glaser, Joel N. Klevens; Nossman, Mitchell J. Green; Greines, Martin, Stein & Richland, Robin Meadow and Jeffrey W. Raskin for Defendants and Respondents.

          JOHNSON, J.

         Dr. Hoomad Melamed (Plaintiff), a physician at Cedars-Sinai Medical Center, operated on a 12-year-old patient, causing complications requiring corrective surgery. The hospital suspended Plaintiff, who requested a peer review hearing challenging the suspension. Every level of administrative review upheld the suspension. Plaintiff did not seek mandamus review of these decisions. Plaintiff then filed suit against Cedars-Sinai Medical Center (Cedars), its medical staff, and the specific doctors involved in the summary suspension decision. The hospital filed an anti-SLAPP motion, contending that Plaintiff's claims arose out of a protected activity-the medical staff's peer review process-and that Plaintiff could not show a probability of success on the merits. The trial court granted the motion.

         We affirm.


         Known as the anti-SLAPP[1] statute, section 425.16 of the Code of Civil Procedure[2] provides that a “cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)

         Resolving an anti-SLAPP motion is a two-step process. First, the trial court must determine whether the defendant has made a prima facie showing that the challenged cause of action arises from protected activity. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822.) If the defendant makes that showing, the trial court proceeds to the second step, determining whether the plaintiff has shown a probability of prevailing on the claim.[3] (Ibid.)

         Subdivision (e) of section 425.16 delineates the type of speech or petitioning activity protected. Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”[4] (§ 425.16, subd. (e).)

         Courts have not precisely defined the boundaries of a cause of action “arising from” such protected activity. (§ 425.16, subd. (b).) “[T]he statutory phrase ‘cause of action... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)

         Whether the statute applies is determined from the “principal thrust or gravamen” of the plaintiff's claim. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) In making these determinations, the trial court “considers ‘the pleadings, and supporting and opposing affidavits.' ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We review the trial court's ruling on the motion to strike independently under a de novo standard. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We do not weigh credibility, but accept as true the evidence favorable to plaintiff. We evaluate the defendant's evidence only to determine whether it defeats the plaintiff's evidence as a matter of law. (Id. at p. 326.)


         A. The Surgery

         On July 11, 2011, Plaintiff performed elective surgery on a 12-year-old patient for scoliosis. Plaintiff selected the operating table and also positioned the patient on the table. Due to the patient's small size, however, Plaintiff ran into trouble during the surgery. The patient's back was unstable and her pelvis dipped, which exacerbated her spinal curvature and made the surgery extremely difficult. Plaintiff then realized he had chosen both the wrong sized table as well as hip and thigh pads for this patient.[5]

         During the surgery, Plaintiff asked the nurses if he could get much bigger pads than what he had chosen but was told those pads were not available. He then asked a nurse to go under the operating table to stabilize the patient. Plaintiff also asked for a different kind of operating table but was told the specific kind of table he had requested mid-surgery was not available.

         Although he was unable to physically stabilize his patient, Plaintiff continued, and even expanded, the surgery. As a result, the operation lasted eight to eleven hours, rather than the normal three to five hours.

         The surgery left the patient in far worse condition, and she now had an exaggerated inward curvature of the lower spine as well as abrasions on her face and body. Indeed, Plaintiff described the deformity as “clearly obvious” and needing correction within a few days.

         B. Plaintiff's Summary Suspension

         On July 13, 2011, the hospital's operating room manager (Kyung Jun) visited the patient to check on the abrasions caused by her prolonged surgery. The patient's parents were present at the time. According to the parents, Plaintiff had told them that the patient was too small for the table he had used during the surgery, and that he needed a special table, which the hospital did not have. Jun reassured the parents that the hospital had the necessary equipment for the patient's corrective surgery. Jun then spoke with Plaintiff to discuss what he needed for the upcoming surgery. Plaintiff confirmed that the hospital did in fact have the equipment he needed for the surgery. Jun emailed this information to Dr. William Brien that same day.[6]

         On or about July 14, 2011, Dr. Brien initiated a peer review investigation into the surgery.[7] The hospital expedited its investigation because the patient was still hospitalized and awaiting additional corrective surgery. Dr. Brien called Plaintiff about the case that day. Plaintiff confirmed he was responsible for choosing the wrong surgical table and for positioning the patient. He also denied complaining to anyone, including the patient's parents, that the hospital did not have the appropriate surgical table available. Plaintiff also admitted he had not yet completed his required postoperation report.

         According to Plaintiff's description of the call, however, Dr. Brien began by immediately asking, “Are you going around the hospital and telling everyone that Cedars doesn't have the capability to do this case?” Plaintiff says he told Dr. Brien that it had been difficult to stabilize the patient due to the inadequate table and pads, and that if the correct equipment had been available, the patient would have had a successful surgical outcome.

         Dr. Brien consulted with the chairman of Department of Surgery, who concurred that Plaintiff posed an immediate and imminent risk to hospital patients, especially since Plaintiff had chosen to continue surgery on his 12-year-old patient even though he could not stabilize her body, and would have to perform corrective surgery on her within the next few days.

         On July 15, 2011, Cedars summarily suspended Plaintiff's medical staff privileges. As required, the hospital provided Plaintiff with a notice of action, advising Plaintiff of the charges and his hearing rights. The hospital based the summary suspension on the surgery, which raised “concerns regarding [Plaintiff's] judgment, technical skill, and competency in managing scoliosis cases.” These concerns were based on his choice of the wrong table for the patient's size and procedure, his failure to adequately stabilize the patient, and his continued attempts to manipulate the patient's spine despite his inability to stabilize her. In addition, the notice stated, “the surgery lasted in excess of 11 hours, which apparently contributed to the pressure areas that the patient sustained.”

         That same day, Plaintiff belatedly dictated his operative report.[8] The report noted the difficulty Plaintiff had during the surgery. It also noted that Plaintiff had asked for a different table and pads during the surgery but was told they were not immediately available.

         On July 21, 2011, Plaintiff's attorney wrote the hospital, challenging the summary suspension. The letter did not criticize the hospital for failing to provide a different table and pads once Plaintiff realized he had chosen the wrong equipment. Instead, it stated that the table chosen by Plaintiff was in fact medically appropriate for this type of surgical procedure, noting that the surgeon who subsequently operated on the 12-year-old patient had used the same table. Notably, the letter did not contend that the hospital had suspended Plaintiff in retaliation for any complaints.

         On July 27, 2011, Plaintiff filed a petition for mandamus and a TRO to set aside the summary suspension. As with the letter from Plaintiff's counsel, these filings did not suggest Plaintiff was concerned with equipment safety or believed he had been suspended in retaliation for any complaints.[9] Instead, Plaintiff's primary challenge focused upon his suspension by a hospital administrator rather than a peer review committee.[10] On August 1, 2011, the hospital reported Plaintiff's summary suspension to the state medical board and the National Practitioner Data Bank as required by law.

         C. The Peer Review Hearing

         On August 29, 2011, Plaintiff requested a peer review hearing to challenge his summary suspension. The hospital issued an amended notice of action, lifting the suspension as to adult patients. It maintained the suspension with respect to pediatric patients. The evidentiary portion of the peer review hearing lasted from September 2012 to November 2013. The hearing committee heard from 17 witnesses and had 60 exhibits at its disposal. As before, Plaintiff did not contend he had complained to the hospital about available equipment or patient safety. Nor did he contend that his summary suspension or his peer review hearing were retaliation for making that complaint.

         The hearing committee issued its report on January 13, 2014. The committee found that the Department of Surgery had “acted reasonably in conducting an investigation of the case” due to the “unsatisfactory correction of the patient's spinal curvature and the harm to the patient of a worsened post-surgical spinal curvature, pressure sores, an extended fusion, a prolonged hospitalization and a second surgery.”

         Based on this evidence, the hearing committee found that Plaintiff's summary suspension had been reasonable and warranted. However, the committee concluded that terminating Plaintiff's clinical privileges to treat pediatric, adolescent and adult scoliosis was not reasonable or warranted.[11]

         Plaintiff appealed the hearing committee's decision to uphold the summary suspension.[12] Plaintiff's appeal did not claim that the hospital had suspended Plaintiff for any retaliatory reasons. Each level of review upheld the hearing committee's finding Plaintiff's summary suspension reasonable and warranted. Plaintiff did not seek mandamus review of this decision.

         D. Plaintiff's Subsequent Lawsuit

         Plaintiff filed suit on July 11, 2014-exactly three years after the surgery. On July 21, 2014, Plaintiff filed a first amended complaint (FAC), the operative complaint in this case, against Cedars-Sinai Medical Center, its medical staff, and the specific doctors involved in the summary suspension decision.[13] For the first time, Plaintiff alleged that the hospital's actions were taken in retaliation after Plaintiff had complained about patient safety at the facility.

         Centered on this allegation, the FAC presented seven causes of action: (1) violation of Health and Safety Code section 1278.5, (2) tortious interference with prospective economic relations, (3) tortious interference with contractual relations, (4) unfair competition in violation of Business and Professions Code section 17200 et seq., (5) violation of Business and Professions Code section 16700 et seq., (6) ...

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