Anti-SLAPP Litigation In The Healthcare Industry Merits Careful Consideration

California Code of Civil Procedure § 425.16, California's "anti-SLAPP" statute (for "Strategic Lawsuit Against Public Participation"), forbids lawsuits brought to silence, censor, or intimidate defendants in retaliation for exercising their First Amendment rights. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App. 4th 777.) The statute contains an aggressive fee shifting provision intended as a deterrent to bringing such suits, by which the court is required to award attorneys fees to a defendant who brings a successful anti-SLAPP motion. (Code Civ. Proc. § 425.16(c)(1).) This provision — indeed, the entire statute — is broadly construed, "so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extricating [itself] from a baseless lawsuit." (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446.) By contrast, a plaintiff who defeats an anti-SLAPP motion is entitled to fees only on a showing that the anti-SLAPP motion is itself "frivolous or is solely intended to cause unnecessary delay." (Id.) Courts use a two-step process to analyze anti-SLAPP motions. Step one is to determine whether the cause of action "arises from" protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If so, the burden shifts to the plaintiff to show that the case has "minimal merit." (Id.) What constitutes "protected activity" is set forth in subdivision (e) of the anti-SLAPP statute itself.

It is safe to assume that the majority of California litigators are familiar with the anti-SLAPP statute, at least in broad terms. However, attorneys whose practices focus primarily or exclusively on healthcare law are often unaware of the broad reach of the statute, or the nuances of the law as it applies to hospitals, skilled nursing facilities, physicians, nurses, and others in the healthcare field. This article aims to alert practitioners to issues that are perhaps more specific to healthcare law than to a general litigation practice.

The hospital-physician relationship, and the peer review process in particular, appears to spawn an inordinate amount of anti-SLAPP litigation. The seminal case is Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192. In Kibler, a hospital's peer review committee summarily suspended the plaintiff-physician's medical staff privileges after he behaved violently at work. When the physician sued, accusing the hospital of tortious...