A new California appellate court decision has added to the number of prior cases where health care employers have been able to defeat retaliation and similar claims at the outset of litigation. In Dignity Health v. Troy Mounts, certified for publication on September 17, 2024, Dignity Health filed a complaint in Superior Court against a surgeon, Troy Mounts, after ending its employment relationship with him. The complaint sought to recover an advance paid to him under a written agreement that the parties entered into during his employment. Mounts filed a cross-complaint for retaliation in violation of Health & Safety Code section 1278.5, intentional interference with prospective economic advantage and unfair competition in violation of Business & Professions Code Section 17200.
Mounts asserted the following retaliatory actions taken against him by Dignity Health purportedly because he complained about the quality of patient care: (1) reducing his scheduled operating room time, providing less operating room support and requiring him to perform surgeries with an unqualified and unfamiliar second surgeon; (2) informing another local hospital that one or more of Mounts’ patients had “significant adverse outcomes” before meeting with Mounts to discuss those patients; (3) obstructing his ability to perform surgeries by rescheduling them for non-medical reasons and referring his patients to other hospitals; (4) depriving him of due process by not following the hospital’s own bylaws; (5) not explaining to him the impacts of his agreement to voluntarily restrict his staff privileges; (6) rejecting his rescission of the voluntary restriction of privileges; (7) filing a false 805 report with the Medical Board and report to the National Practitioner Data Bank; (8) forcing him to resign; and (9) interfering with his right to practice his occupation elsewhere by refusing to provide prospective employers with records from a Focused Professional Practitioner Evaluation.
Dignity Health alleged that any actions taken against Mounts were because of performance-based concerns, and it filed an anti-SLAPP motion to strike Mounts’ cross-complaint, which the trial court initially denied. But after reversal on appeal, the trial court granted Dignity Health’s anti-SLAPP motion and dismissed each of Mounts’ claims, finding that Mounts had not demonstrated a probability of prevailing on the merits because all of Dignity Health’s actions were subject to the litigation privilege (allegations 2-9, above) and/or the common interest privilege (allegations 1-6, 8-9, above).
This case follows other cases where health care employers were successful in bringing anti-SLAPP or summary judgment motions to defeat claims by employees. Bonni v. St. Joseph Health System (2022) 83 Cal.App.5th 288 (holding that statements and other communications related to a hospital’s peer review process are protected from retaliation claims by the litigation privilege); Lemke v. Sutter Roseville Medical Center (2017) 178 Cal. App. 5th 1292, 1299 (holding that an “absolute privilege” applied to statements made by defendant to the Board of Nursing that could not be subject to a defamation claim); Long v. Pinto, 126 Cal. App. 3d 946, 948 (1981) (holding that a letter sent by the defendant about the plaintiff to the Board of Medical Quality Assurance was absolutely privileged).
The Court of Appeal also affirmed the trial court’s award of attorney’s fees and costs to Dignity Health as the prevailing party on its anti-SLAPP motion.
Of note is that both the Dignity Health decision and the Bonni v. St. Joseph Heath System case referenced above, which granted defendants’ anti-SLAPP motions, were made after the California Supreme Court confirmed its view in a 2021 decision that the anti-SLAPP statute should have a “limited role to play” in discrimination and retaliation lawsuits.