OMeara v. Palomar-Pomerado Health System

Filed 3/12/07 OMeara v. Palomar-Pomerado Health System CA4/1

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed.

Dr. Patrick O'Meara, the former chair of the Department of Orthopedic Surgery at Palomar Medical Center (Palomar), sued Palomar and related entities, and various individuals on Palomar's medical peer review committees, alleging these defendants improperly retaliated against him because he expressed dissatisfaction with a managed care entity's involvement in medical decisions. After this court reversed a prior judgment granting defendants' demurrer, defendants brought a motion to strike the second amended complaint under California's anti-SLAPP law. (Code Civ. Proc.,^[1] 425.16.) The superior court found the anti-SLAPP statute governed the complaint, but that Dr. O'Meara met his burden to show a probability of prevailing on his claims. The superior court thus entered an order denying defendants' anti-SLAPP motion.

On appeal, we initially held the complaint was not governed by the anti-SLAPP statute, and thus affirmed the superior court's order on this basis. The California Supreme Court granted defendants' petition for review of this decision, and later retransferred the matter after it decided Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler). Kibler held the anti-SLAPP statute governs claims brought by a hospital staff physician arising from discipline imposed by the hospital's peer review committee. (Id. at p. 196.)

After reconsidering the appeal in light of Kibler, we hold the anti-SLAPP statute governs the claims asserted by Dr. O'Meara. Dr. O'Meara's causes of action arise from Palomar's peer review proceedings and therefore, under Kibler, the complaint is subject to a special motion to strike under section 425.16. However, we conclude the trial court properly denied the anti-SLAPP motion because Dr. O'Meara showed a probability of prevailing on his claims. In asserting that Dr. O'Meara did not meet this burden, defendants relied solely on the affirmative defense of failure to exhaust judicial and administrative remedies. We agree with the trial court that defendants did not show a probability of prevailing on this defense.

In reaching this conclusion, we analyze separately the two challenged disciplinary actions imposed by Palomar's peer review committee: a probation imposed in February 2000 and an extension of the probation imposed in April 2001. As explained, Dr. O'Meara met his burden to show a probability of prevailing on his claims based on the April 2001 probation, and defendants did not show a probability that their asserted exhaustion defenses would preclude these claims. We base this determination on the state of the record when the trial court ruled on the anti-SLAPP motion, and not on events occurring after the challenged order and after the notice of appeal was filed. Although our conclusions on the April 2001 probation are sufficient to require an affirmance, for purposes of judicial economy we also address Dr. O'Meara's claims based on the first probation (February 2000). On the record before us, we conclude Dr. O'Meara failed to exhaust his judicial remedies with respect to this disciplinary action.

FACTUAL AND PROCEDURAL BACKGROUND

This case has a complex factual and procedural history that must be set forth for a complete understanding of the parties' appellate contentions and our resolution of those contentions. We initially provide a chronological summary of the relevant events. Additional relevant facts will be included in our discussion of the legal issues.

In November 1999, Dr. O'Meara was an orthopedic surgeon with staff privileges at Palomar. Palomar is owned by Palomar Pomerado Health System, a California local health care district. Palomar's medical staff is governed by the hospital's Executive Committee, composed of medical staff officers, department chair, Palomar administration representatives, and the medical director of the surgery center. The Executive Committee is responsible for peer review functions, as set forth in Palomar's bylaws and the applicable statutes. (See Bus. & Prof. Code,  809, subd. (a)(8).) These functions include investigating improper conduct by a medical staff member. The bylaws provide for the appointment of an ad hoc committee to aid in the investigations, and give the Executive Committee the authority to select appropriate corrective action, including the imposition of probation. Under the bylaws, a physician has a right to a hearing to challenge certain types of adverse actions, and this list does not include a probation.^[2]

In November 1999, Dr. O'Meara ordered that an adult patient with traumatic orthopedic injuries (identified as "Roe") be transferred to a pelvic surgical specialist at UCSD. A case manager with a clinic associated with a health maintenance organization (Graybill Medical Group (Graybill)) disagreed that a transfer was necessary. Without notifying Dr. O'Meara, another surgeon associated with Graybill performed surgery on Roe at Palomar the next day. When Dr. O'Meara learned his patient was in surgery without his approval, he spoke with members of Roe's family who were in the waiting room, and expressed his strong disagreement with this course of action. The precise nature of the communication is in dispute. The surgery was apparently unsuccessful, and the patient was later required to undergo another surgery by the UCSD specialist.

Shortly thereafter, Dr. O'Meara wrote letters to Palomar administrators and the Executive Committee, complaining about the conduct of Graybill and the Palomar physician. Within several weeks, the Executive Committee formed an ad hoc committee, composed of four Executive Committee members, to investigate Dr. O'Meara's conduct pertaining to Roe and another patient (Doe). During the investigation, the ad hoc committee interviewed several individuals and met twice with Dr. O'Meara. After the investigation, on February 28, 2000, the Executive Committee placed Dr. O'Meara on probationary status (hereafter referred to as the First Probation) based on findings that Dr. O'Meara had made inappropriate comments to Roe's family and made inappropriate statements to patient Doe. The Executive Committee stated that Dr. O'Meara was prohibited from any additional "incidents of inappropriate comments to patients, their families, hospital staff or other physicians," including "inappropriate entries made in the medical record," and that failure to comply with this order "will result in a recommendation for loss of membership and privileges." The Executive Committee also recommended that Dr. O'Meara be required to step down as department chair, and that Dr. O'Meara "undertake voluntary counseling in anger management." The Executive Committee denied Dr. O'Meara's request for a hearing to challenge this discipline, stating that, under the bylaws, a probation is not one of the enumerated grounds for a hearing.

In September 2000, Dr. O'Meara brought a lawsuit (the Damages action) against Palomar, Palomar's owner, Palomar's chief operating officer, the Executive Committee, and the individual members of the Executive Committee.^[3] As amended, the complaint

alleged the First Probation constituted unlawful retaliation in violation of Business and Professions Code section 2056, subdivision (c), which prohibits retaliation against, and punishment of, physicians who advocate for medically appropriate health care for their patients, and prohibits any person from prohibiting, restricting or in any way discouraging a physician from communicating information to a patient in furtherance of medically appropriate health care. Dr. O'Meara also alleged defendants violated his constitutional free speech right and his common law right to fair procedure, and committed tortious acts constituting defamation, intentional infliction of emotional distress, and interference with prospective economic relations.

Defendants demurred, contending the exhaustion of judicial remedies doctrine barred all of Dr. O'Meara's causes of action because he had never challenged the First Probation through a writ of mandate. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482-486 (Westlake).) In mid-March 2001, the trial court (Judge Robert May) granted the demurrer to Dr. O'Meara's first amended complaint, concluding that Dr. O'Meara's claims were barred by the exhaustion of judicial remedies doctrine.

Two weeks later, on April 4, 2001, without providing Dr. O'Meara any advance notice, Palomar extended the probation for an additional year (the Second Probation), based on the Executive Committee's new findings that Dr. O'Meara had: (1) engaged in "[c]ontinued disruptive behavior"; (2) filed the lawsuit before any punishment was imposed and before Dr. O'Meara exhausted internal remedies; (3) disclosed peer review documents in the lawsuit; and (4) failed to recuse himself when he had a conflict of interest based on the lawsuit. The Executive Committee denied Dr. O'Meara's request for a hearing to challenge the Second Probation.

Three months later, on July 2, 2001, Dr. O'Meara filed a writ of mandate under section 1094.5 (the Writ action), requesting the court to order Palomar to vacate the First Probation and Second Probation. Dr. O'Meara alleged the imposition of each probation was unsupported by the evidence and he did not receive a fair hearing before the Executive Committee imposed the disciplinary actions. The matter was assigned to Judge S. Charles Wickersham.

On August 7, 2001, Dr. O'Meara filed a notice of appeal from the judgment dismissing his Damages action challenging the First Probation.

Three weeks later, Dr. O'Meara filed a first amended petition in the Writ action, deleting the portions of the petition that sought to vacate the First Probation. The amended petition thus challenged only the imposition of the Second Probation.

On April 15, 2002, the Executive Committee voted to permit the Second Probation to expire, but to place a letter critical of Dr. O'Meara in his credentials file.

On September 10, 2002, Judge Wickersham granted Dr. O'Meara's mandate petition in the Writ action, and remanded the matter for Palomar to conduct a hearing on

the propriety of the Second Probation.^[4]

Three months later, on December 2, 2002, this court filed its decision reversing the judgment in the Damages action. (O'Meara v. Palomar-Pomerado Health System (D038561) [nonpub. opn.].) We held that Dr. O'Meara sufficiently pled that the Palomar defendants did not provide him with a quasi-judicial procedure before imposing the First Probation, and therefore his claims were not barred by the judicial exhaustion doctrine at the pleading stage. (Ibid.) We emphasized that our conclusion was "based on the allegations in the pleadings" and that defendants would be entitled to reassert the issue on a full factual record. (Ibid.)

On April 18, 2003, Judge Wickersham granted Palomar's motion to vacate the judgment granting Dr. O'Meara's writ petition in the Writ action.

One week later, on April 24, 2003, Dr. O'Meara filed a second amended complaint in the Damages action. In this complaint, Dr. O'Meara added factual allegations challenging the Second Probation and the placement of the April 2002 critical letter in his credentials file, and alleged he was not afforded a quasi-judicial hearing before these disciplinary actions were imposed, i.e., he had no notice of the charges, no opportunity to be heard, no hearing, and no appellate review. Each of the causes of action in the second amended complaint was factually premised on the First Probation and on the Second Probation. Thus, under the allegations either probation would independently support the claims.

Meanwhile, on May 19, 2003, Judge Wickersham issued a new judgment in Dr. O'Meara's favor in the Writ action under section 1085. The new judgment stated: "[Palomar] shall set aside the [Second Probation] and remove from Dr. O'Meara's credentials files [the letter of reprimand] referencing that probation. Pursuant to [Palomar's] bylaws, this action is remanded to [Palomar's] Executive Committee to afford Dr. O'Meara the fair procedure as set forth in the Court's [attached order], before it may institute an additional period of probation on Dr. O'Meara." In the attached order, the court stated that although it had previously granted the writ petition under the administrative mandamus statute ( 1094.5), the proper remedy was a traditional writ of mandate under section 1085 to "compel the performance of a legal . . . ministerial duty." The court also explained its reasoning for issuing the writ: "[Palomar] was required to utilize 'fair' procedure prior to issuing its decision to impose [the Second Probation]. At the very least, [Dr. O'Meara] was entitled to notification of the charges levied against him, and an opportunity to meaningfully respond to the charges. . . .  The administrative record demonstrates that [Dr. O'Meara] was not notified that the Executive Committee was considering [the imposition of the Second Probation]. . . . Nor was [Dr. O'Meara] given the opportunity to respond to the charges, as he was prior to the first imposition of probation. Therefore, although a formal hearing is not necessarily required, [Palomar's] actions were nonetheless unlawful."

Defendants did not appeal from this ruling, nor take any action to provide Dr. O'Meara a hearing on the Second Probation. Instead, on June 23, 2003, defendants moved to strike the complaint in the Damages action under the anti-SLAPP statute. Defendants argued that Dr. O'Meara's causes of action arose from defendants' exercise of free speech on matters of public interest and/or in connection with an "official proceeding." In support of these arguments, defendants relied solely on Dr. O'Meara's pleadings.

In response, Dr. O'Meara argued the anti-SLAPP statute was inapplicable because a hospital peer review proceeding is not an " 'official proceeding' " and the claims did not involve matters of "public interest" within the meaning of section 425.16. Alternatively, Dr. O'Meara urged the court to deny the motion because it was probable he would prevail on his claims. In support of this argument, Dr. O'Meara submitted his own declaration, deposition transcripts, and numerous other documents containing evidence pertaining to each of his causes of action.

Dr. O'Meara's declaration described his advocacy on behalf of patients Roe and Doe in response to his belief they were being denied adequate medical care. With respect to patient Roe, he stated: "After considerable work-up, I determined that the injuries suffered by patient Roe were so severe and required such specialized care that he also should be transferred to UCSD for surgery by [a] pelvis fracture specialist.  . . . I arranged for the transfer. . . . I so advised patient Roe.  . . . [But] the case manager for Graybill . . . told me that she would not approve the transfer of [Roe]. Rather, she stated that she wanted Graybill's contracted capitated physician to take over the care of the patient. . . .  In the interest of the best care for my patient, I strongly disagreed with the case manager and stood by my recommendation for transfer to the UCSD Medical Center for surgery by the specialist. [] [The next day] I arrived in patient Roe's room and discovered that he was in surgery being operated on without my consent by the capitated physician associated with Graybill. In my view, this physician was less qualified to perform the required surgery than the surgeon at UCSD to whom I had arranged for the transfer of Roe. . . .  I went to the surgical waiting room and asked the awaiting family members why this doctor was operating on the patient. I told the family members that this surgery was being done without my consent or knowledge and without my involvement in the decision making process. . . .  I said that hopefully things will go fine with the surgery, but that what happened was grossly inappropriate. Members of the family advised me that they had been told that the surgery was with my approval and that the patient would be better off at [Palomar] than at UCSD, both of which statements were false. I told the family that it was wrong that they were not informed of the financial conflict of interest that Graybill, PPHS and the capitated physician had by not sending the patient to UCSD for the surgery. . . .  Ultimately, the surgery on patient 'Roe' by the capitated physician was not successful, and the patient was transferred to the specialist at UCSD where he underwent another surgery for the same condition."

Dr. O'Meara stated that immediately after his conversation with Roe's family, he orally complained to Palomar administration and wrote letters objecting to Graybill's conduct "as being not in the best interest of the patient's care." In his declaration, Dr. O'Meara also described the Executive Committee's response to his complaints, and submitted correspondence between himself and the Executive Committee reflecting the events leading to the First Probation. These facts will be detailed below in our later discussion of the judicial exhaustion legal issue.

Dr. O'Meara also stated, and presented additional evidence, that the Executive Committee members spread information throughout the hospital community about his alleged improper conduct and the probations, and since that time he has "been shunned by members of the medical staff. . . .  Private patient referrals have fallen almost to the point of being non-existent." Dr. O'Meara also stated that his application for clinical privileges at two other hospitals have not been accepted, and that the hospitals were seeking additional information about the circumstances surrounding his probations before these privileges would be granted.

In reply, defendants did not challenge that Dr. O'Meara submitted sufficient evidence to show a probability he would prevail on the elements of his claims. Instead, they argued that Dr. O'Meara failed to meet his burden to show a probability of prevailing because the evidence showed his claims were barred by his failure to exhaust his judicial and/or administrative remedies. With respect to the First Probation, defendants argued that the peer review process was" 'quasi-judicial,' " and therefore Dr. O'Meara was required to obtain a writ of mandamus before filing a lawsuit for damages arising from that investigation/discipline. Defendants produced numerous supporting documents relating to the ad hoc committee's investigation in an effort to show the process was quasi-judicial. This evidence will be detailed below in our later discussion of the judicial exhaustion legal issue.

With respect to the Second Probation, defendants argued that although Dr. O'Meara prevailed in the Writ action challenging this discipline, Dr. O'Meara had failed to exhaust his internal remedies because the "administrative process" pertaining to this discipline "is currently pending and therefore incomplete." Defendants produced the supporting declaration of their counsel who stated: "In order to comply with Judge Wickersham's Order . . . , the Hospital, through its attorneys, is in the process of drafting a letter to [Dr. O'Meara] formally notifying him of charges against him in his Peer Review Process. Following the delivery of that letter . . . the Hospital will . . . provide [Dr. O'Meara] with an opportunity to defend himself against those charges in accordance with the Medical Staff Bylaws and applicable due process and fair procedure."

Defendants also produced the declarations of several individual defendants on the Executive Committee, who stated that Dr. O'Meara's statements to Roe's family were improper because of the time, manner and place in which they were communicated. These defendants opined that it was not appropriate for Dr. O'Meara to communicate his objections while the patient was in surgery and to speak to the family in an emotional manner in a public portion of the hospital.

In its tentative ruling, the court (Judge Ronald Styn) found the second amended complaint was subject to the anti-SLAPP statute, but that Dr. O'Meara met his burden to show a probability of prevailing on each of his claims. On the probability of prevailing issue, the court stated that Dr. O'Meara had produced evidence to support each of his causes of action, and that defendants' only response to this evidence was to assert a defense that Dr. O'Meara failed to exhaust his judicial and/or administrative remedies. The court found that this defense did not apply to the Second Probation because Palomar did not provide Dr. O'Meara with an internal remedy to challenge this probation and Dr. O'Meara exhausted his judicial remedy by successfully bringing the Writ action challenging the Second Probation. The court stated that although Palomar "may take further action in the form of a further probation proceeding," any "future action is not before the Court in this action." Given its finding on the Second Probation and the fact that this factual theory could independently support Dr. O'Meara's claims, the court declined to rule on the question whether the judicial exhaustion doctrine barred Dr. O'Meara's claims challenging the First Probation. But the court noted that if it did reach the issue, it would likely find Dr. O'Meara's challenge to the First Probation barred.

At the August 15 hearing, defendants' counsel argued at length that Dr. O'Meara's action based on the Second Probation was barred because the proceedings on this discipline had not yet been completed after Judge Wickersham remanded the order. After an extended discussion between defense counsel and the court, the court rejected this argument based on the record showing that Palomar had taken no steps to provide Dr. O'Meara with a proper hearing following Judge Wickersham's order.

Thereafter, the court issued its final order confirming its tentative ruling denying the anti-SLAPP motion. The court concluded that Dr. O'Meara met his burden to show a probability of prevailing on each of the claims (based on the Second Probation), and that the judicial and administrative exhaustion doctrines did not bar the action because Dr. O'Meara exhausted his judicial remedies on the Second Probation and there were no administrative remedies left to exhaust with respect to this disciplinary action.

DISCUSSION

I. Summary of Applicable Anti-SLAPP Law

The Legislature enacted the anti-SLAPP law to prevent and deter lawsuits " ' " 'brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' ( 425.16, subd. (a).) Because these meritless lawsuits seek to deplete 'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought ' "to prevent SLAPPs by ending them early and without great cost to the SLAPP target." ' [Citation.]" ' " (Flatley v. Mauro (2006) 39 Cal.4th 299, 312.) To encourage participation in matters of public significance, courts must construe the statute "broadly." ( 425.16, subd. (a); see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119.)

In ruling on a defendant's anti-SLAPP motion, a court engages in a two-step analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must determine "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ( 425.16, subd. (b)(1).)" (Ibid.) " 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e).' " (Ibid.) Second, "[i]f the court finds this showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim" (ibid.), or alternatively, whether the defendant has established a probability of prevailing on its asserted affirmative defense (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676 (Peregrine Funding)).

II. Dr. O'Meara's Complaint Is Governed by the Anti-SLAPP Statute

Under section 425.16, a cause of action is subject to a defendant's special motion to strike if the claim arises "from any act . . . in furtherance" of the defendant's "right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." ( 425.16, subd. (b)(1); see Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396.) The statute identifies four categories of activities that are " 'in furtherance of' " a defendant's free speech or petition rights. ( 425.16, subd. (e).) The second category pertains to a defendant's statements or writings "in connection with an issue under consideration or review by a legislative executive, or judicial body, or any other official proceeding authorized by law." ( 425.16, subd. (e)(2), italics added.)

In Kibler, the California Supreme Court defined the phrase " 'other official proceeding authorized by law' " to include proceedings of a hospital peer review committee. (Kibler, supra, 39 Cal.4th at pp. 199-201.) The court identified several "attribute[s]" of hospital peer review supporting this conclusion. First, hospital peer review is legally mandated, and serves the essential role of assisting public agencies to regulate the medical profession and "protect[ ] the public against incompetent, impaired, or negligent physicians." (Id. at pp. 199-200; see Bus. & Prof. Code,  809.05.) Additionally, "the Legislature has accorded a hospital's peer review decisions a status comparable to that of quasi-judicial public agencies" by providing that decisions of both entities are reviewable by administrative mandate after a quasi-judicial hearing. (Kibler, supra, at p. 200.)

The Kibler court also emphasized the important public policy reasons for extending the anti-SLAPP law to the peer review context: "membership on a hospital's peer review committee is voluntary and unpaid, and many physicians are reluctant to join peer review committees so as to avoid sitting in judgment of their peers. To hold . . . that hospital peer review proceedings are not 'official proceeding[s] authorized by law'. . . would further discourage participation in peer review by allowing disciplined physicians to file harassing lawsuits against hospitals and their peer review committee members rather than seeking judicial review of the committee's decision by the available means of a petition for administrative mandate." (Kibler, supra, 39 Cal.4th at p. 201.)

In Kibler, a hospital peer review committee suspended a physician's staff privileges after the physician brought a firearm into the hospital and threatened various staff with physical violence. (Kibler, supra, 39 Cal.4th at p. 196.)Despite a settlement in which he agreed not to sue, the doctor brought an action against the hospital and peer review committee members, alleging the suspension and related actions were improper under a variety of theories, including defamation, abuse of process, and interference with his practice of medicine. (Ibid.) The Kibler court held that each of the physician's claims arose out of the discipline imposed by the hospital peer review committee, and therefore the claims were governed by the anti-SLAPP statute.

As in Kibler, Dr. O'Meara's claims arose from the disciplinary actions taken by the hospital's peer review committee, an "official proceeding authorized by law." Dr. O'Meara's second amended complaint challenges the Executive Committee's imposition of the First Probation and Second Probation, asserting these actions were wrongful because they constituted improper interference with his free speech and unlawful retaliation for his advocacy of his patients, and they were imposed after procedurally flawed and unfair peer review proceedings. The additional tort claims, including defamation, intentional infliction of emotional distress, and intentional interference with economic relations, also arise from the alleged wrongful actions of the Executive Committee. According to the allegations of the complaint and the evidence presented by Dr. O'Meara, these claims are based on defendants' alleged false statements about Dr. O'Meara concerning the peer review proceedings, the probations, and the critical letter. On this record, defendants met their burden to show the applicability of the anti-SLAPP statute.

In seeking to distinguish his case from Kibler, Dr. O'Meara argues that Kibler's holding that hospital peer review is an "official proceeding" applies only if the challenged peer review proceedings were mandated by statute. This argument is unavailing because the Executive Committee's challenged actions in this case were mandated by statute. Under the hospital peer review statutory scheme, a physician challenging certain ultimate decisions, such as a termination or suspension of staff privileges, is entitled to a full hearing and must be accorded numerous procedural protections at the hearing. (Bus. & Prof. Code,  805, subd. (a)(7), 809.1.) However, the fact that the statute does not necessarily entitle a physician challenging a lesser form of punishment (such as probation) to this full panoply of rights does not mean that the peer review process is not mandatory. The statutes require a hospital to include in its bylaws a provision for conducting peer review, and the peer review includes all levels of oversight from minor problems to ultimate staff dismissals. Business and Professions Code section 809, subdivision (a)(7) states, for example, "It is the intent of the Legislature that peer review of professional health care services be done . . . on an ongoing basis, and with an emphasis on early detection of potential quality problems and resolutions through informal educational interventions." (Italics added.) Because the statutory responsibilities of a peer review board go far beyond the ultimate determinations of staff privilege terminations or denials, we reject Dr. O'Meara's argument that peer review proceedings are protected under the anti-SLAPP statute only if the proceedings result from an evidentiary hearing required for certain "ultimate" types of discipline.

Dr. O'Meara additionally seeks to distinguish his case from Kibler by asserting that he was not afforded a quasi-judicial hearing before the discipline was imposed. Dr. O'Meara notes that one rationale for the Kibler court'scharacterization of peer review as "official" was that a party is generally entitled to judicial review of a peer review committee decision by filing a writ of administrative mandamus under section 1094.5. (Kibler, supra, 39 Cal.4th at p. 200.) However, as explained below, the evidence shows Dr. O'Meara did receive a quasi-judicial hearing with respect to the First Probation, and thus could have brought a petition for writ of administrative mandamus under section 1094.5 to challenge the imposition of the discipline. Although there was no quasi-judicial hearing before the Second Probation, Dr. O'Meara successfully obtained judicial review through a section 1085 mandamus procedure, in which the court imposed the obligation on Palomar to provide a fair process before it could institute a probation. The Kibler court's focus on the judicial review right was not based on the particular statutory vehicle for obtaining judicial review. Rather, the critical point was that a staff physician challenging a hospital's adverse decision is entitled to the same judicial rights as those of an employee challenging a public agency's adverse determination, thus supporting the view that, under the anti-SLAPP law, peer review proceedings are just as "official" as are governmental agency proceedings.

We likewise reject Dr. O'Meara's contention that Kibler's holding applies only when the peer review pertains directly to allegations of improper patient care. Under the court's broad holding, hospital peer review comes within the definition of an "official proceeding" without limitation to a particular subject matter. (Kibler, supra, 39 Cal.4th at pp. 198-201.) In this regard, Dr. O'Meara's reliance on Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614 is misplaced. Miller held a bylaw provision permitting hospital staff exclusion based on a physician's "ability to 'work with others' " cannot be interpreted to permit hospitals to take actions against a physician that have no relationship with the quality of care provided by the physician. (Id. at pp. 628-629.) Based on Miller, Dr. O'Meara argues the Executive Committee could not properly discipline him for his communications with Roe's family. Even assuming Dr. O'Meara is correct, this argument is not helpful to our analysis of the first prong of the anti-SLAPP statute. Absent narrow exceptions, a moving party on an anti-SLAPP motion is not required to prove the challenged speech or conduct was a proper exercise of his or her authority or that the defendant's actions were constitutionally protected under the First Amendment as a matter of law. Instead, any " 'claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff's [secondary] burden to provide a prima facie showing of the merits of the plaintiff's case.'"(Navellier, supra, 29 Cal.4th at p. 94; see Flatley v. Mauro, supra, 39 Cal.4th at p. 319.)

We conclude this case is indistinguishable from Kibler and thus defendants met their burden to show Dr. O'Meara's complaint is governed by the anti-SLAPP law.

III. Probability of Prevailing

A. Overview

Once a defendant establishes the plaintiff's complaint is subject to the anti-SLAPP statute, the burden shifts to the plaintiff to show a "probability" the plaintiff will prevail on the claims. ( 425.16, subd. (b)(1).) To meet his burden, Dr. O'Meara was required to present evidence that, if believed by the trier of fact, was sufficient to support a judgment in his favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) In deciding the question of potential merit, the trial court considers the parties' pleadings and evidentiary submissions. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The court does not weigh the credibility or compare the strength of competing evidence, but merely determines if there is sufficient evidence to show the plaintiff can satisfy each element of his or her claim. (Ibid.)

If a defendant seeks to prevail on an anti-SLAPP motion based on an affirmative defense, the defendant has the burden of proving a probability of prevailing on this defense. (Peregrine Funding, supra, 133 Cal.App.4th at p. 676.) "[A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense." (Ibid.; see also Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 109.) We apply a de novo review in determining whether the parties met their burdens. (Zamos v. Stroud, supra, 32 Cal.4th at p. 965.)

In this case, Dr. O'Meara presented evidence in an attempt to establish a probability of prevailing on the merits on each of his claims. Defendants did not challenge the adequacy of this evidence to support the elements of Dr. O'Meara's causes of action, but instead argued that Dr. O'Meara would not prevail because of the applicability of defendants' affirmative defense of failure to exhaust administrative and/or judicial remedies. We first summarize the legal principles governing the exhaustion doctrines, and then examine the applicability of this defense to the claims based on the First Probation and Second Probation.

B. Legal Principles Applicable to Exhaustion Requirements

In Westlake, supra, 17 Cal.3d 465, the California Supreme Court held a physician is required to exhaust two distinct procedures before he or she may recover damages caused by a hospital's alleged improper disciplinary action. (Id. at p. 469.) First, the physician is required to exhaust internal remedies provided by the hospital. (Id. at pp. 469, 476-477.) "[B]efore a doctor may initiate litigation challenging the propriety of a hospital's [decision], he [or she] must exhaust the available internal remedies afforded by the hospital." (Id. at p. 469.) This form of exhaustion serves to mitigate the physician's damages, recognizes the " 'expertise' " of the private hospital association, and "promote[s] judicial efficiency by unearthing the relevant evidence and [thus] providing a record which the court may review." (Id. at p. 476.)

Second, the Westlakecourt held the doctor must also exhaust his or her judicial remedies. (Westlake, supra, 17 Cal.3d at pp. 469, 482-486.) Unless a doctor successfully challenges the disciplinary action by writ of mandate, the propriety of those findings is binding in later civil actions and therefore tort claims challenging the discipline are barred. (Id. at pp. 483-486; see Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70.) The Westlake court identified three policies supporting this judicial exhaustion requirement in the peer review process. (Westlake, supra, 17 Cal.3d at p. 484.) First, requiring exhaustion "accords a proper respect to an association's quasi-judicial procedure, precluding an aggrieved party from circumventing the established avenue of mandamus review." (Ibid.) Second, this requirement " simplif[ies] court procedures by providing a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions." (Ibid.) Third, the "procedure affords a justified measure of protection to the individuals who take on, often without remuneration, the difficult, time-consuming and socially important task of policing medical personnel." (Ibid.)

The high court additionally analogized a doctor's challenge to a hospital's disciplinary action to a malicious prosecution action. (Westlake, supra, 17 Cal.3d at pp. 483-484.) "As in a malicious prosecution action, [a doctor's challenge to a peer review determination] rests on a contention that defendants intentionally and maliciously misused a quasi-judicial procedure in order to injure her; such a claim is necessarily premised on an assertion that the hospital's decision . . . was itself erroneous and unjustified. Although a quasi-judicial decision reached by a tribunal of a private association may not be entitled to exactly the same measure of respect as a similar decision of a duly constituted public agency . . . , we believe that so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the hospital's action." (Id. at p. 484.) Thus, courts view the exhaustion of judicial remedies doctrine as a form of collateral estoppel (issue preclusion), which " 'bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.' " (Risam v. County of Los Angeles (2002) 99 Cal.App.4th 412, 420.) "Any other result would permit a total retrial of the same facts and issues once decided and expose a respondent to possibly inconsistent rulings in different forums; furthermore, it would render the [hospital's internal] hearing a meaningless and idle act if it were to be accorded no import." (Id. at p. 420; see Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 243.)

Westlake made clear, however, that there is an important exception to the judicial exhaustion rule applicable when the hospital does not conduct a quasi-judicial hearing before taking the adverse action. (Westlake, supra, 17 Cal.3d at pp. 478, 479, 484-486.) If a quasi-judicial hearing is not held, a party is not required to challenge the discipline through a writ of mandate. (Ibid.) The Westlake court reasoned that when a hospital takes an adverse action "without affording [a doctor] the basic procedural protection to which he is legally entitled, the hospital . . . can offer no convincing reason or justification why [it] should be insulated from an immediate tort suit . . . ." (Westlake, supra, at p. 478, italics added.)

Although the Westlake court did not specifically define what constitutes a quasi-judicial hearing for purposes of the judicial exhaustion requirement, the facts of the case are instructive. The doctor in that case filed a civil action against two hospitals, Westlake hospital and Los Robles hospital. (Westlake, supra, 17 Cal.3d at p. 469.) Before the Westlake hospital revoked the doctor's staff privileges, the doctor was provided with an oral hearing before the hospital's judicial review committee, and at that hearing the doctor and the hospital were represented by counsel, the parties called witnesses, introduced documentary evidence, and the proceedings were transcribed by certified reporters. (Id. at p. 471.) The Westlake court held this procedure amounted to a quasi-judicial proceeding and therefore the judicial exhaustion rule applied to bar the doctor's civil claims against this hospital. (Id. at pp. 483-486.)

However, the Westlake court found the Los Robles hospital's challenged action (the denial of membership to the hospital staff) did not result from a quasi-judicial process and thus did not bar the doctor's tort action challenging that action. (Westlake, supra, 17 Cal.3d at p. 478.) The Los Robles hospital had formed a committee to formally consider the doctor's application, but the committee denied the application based solely on the hospital's own internal investigation of the doctor's qualifications. (Id. at p. 472.) When the hospital informed the doctor that her membership application had been denied, it did not tell her that she had the right to appeal this decision. Under these circumstances, the Westlake court found the judicial exhaustion doctrine did not bar the action because the doctor had no notice or opportunity to respond to the charges against her. (Id. at p. 478; see also Willis v. Santa Ana etc. Hospital Assn. (1962) 58 Cal.2d 806, 808 [physician's hospital membership terminated without any hearing or assigned reason, yet later asserted that he was expelled because of questionable competence]; Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623, 650-651 [physician received no prior notification of charges permitting him to prepare a defense].)

Following Westlake, the courts have narrowly construed the "no quasi-judicial hearing" exception and have held the exhaustion of judicial remedies doctrine bars a later tort action when the plaintiff was provided with a hearing, even if the plaintiff alleges that the hearing was unfair or procedurally flawed. (Holder v. California Paralyzed Veterans Assn. (1980) 114 Cal.App.3d 155, 163-164 (Holder); see also Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1729; Miller v. County of Santa Cruz (9th Cir. 1994) 39 F.3d 1030, 1036-1037.) The Holder court reasoned that the physician has the right to challenge such procedural irregularities in a writ of mandate action, and thus it is inconsistent with the public policies underlying the judicial exhaustion doctrine to provide an exception under these circumstances. (Holder, supra, 114 Cal.App.3d at p. 164.) A "procedural defect is a common ground for issuance of a writ of mandate invalidating a quasi-judicial decision. . . .  [] The existence of such an issue makes even more appropriate the " 'uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions.' " (Ibid.)

However, the courts have consistently applied the Westlakeexception when the plaintiff was denied the most fundamental elements of a hearing such that there was no meaningful opportunity to present his or her case. (See Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729 (Payne); McDaniel v. Board of Education (1996) 44 Cal.App.4th 1618.) These fundamental elements include notice of the alleged improper conduct and an opportunity to rebut those charges. In Payne, for example, the court held a doctor was not barred by the doctrine of judicial exhaustion to challenge a peer review committee's imposition of a probation-type discipline after the committee allegedly "met in secret, without notice [to the physician]" and imposed the discipline "without affording [the physician] an opportunity to be heard." (Payne, supra, 130 Cal.App.4th at p. 734; see also McDaniel v. Board of Education, supra, 44 Cal.App.4th at pp. 1621-1622 [doctrine inapplicable where board unilaterally took action after receiving plaintiff's application and formal claim challenging its decision].) If the hospital does not provide the minimum procedural protections of notice and an opportunity to be heard, the physician has been deprived of the "basic procedural protections that are fundamental to any fair administrative remedy" and thus is not barred by a failure to challenge the decision through a writ of mandate proceeding. (Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 104; see Payne, supra, 130 Cal.App.4th at pp. 744-745; see also McDaniel v. Board of Education, supra, 44 Cal.App.4th 1618.)

We now turn to apply these principles to the two disciplinary actions challenged in this case.

C. First Probation

Facts Relevant to Quasi-Judicial Hearing Issue^[5]

One week after the Roe incident, on November 10, Dr. O'Meara met with two members of the Executive Committee (Dr. Roy Johnson and Dr. Charles Smith) to discuss the circumstances surrounding Roe's surgery. At that meeting, Dr. Johnson told Dr. O'Meara that hospital personnel had reported that Dr. O'Meara had made inappropriate remarks to Roe's family and to patient Doe. Dr. Johnson quoted many of these alleged statements, including that Dr. O'Meara told patient Doe that

" 'your HMO and HMO's in general are shit,' " and that Dr. O'Meara said to Roe's family that the Palomar physician who performed surgery on Roe was "committing malpractice" and " 'treats his patients like cats and dogs.' " Dr. O'Meara denied making these statements, and responded by explaining why he was upset about the Roe incident and describing his concerns and prior complaints about patient care being substantially compromised because of the hospital's financial arrangements. At the conclusion of the meeting, Dr. O'Meara believed the matter was closed and the grounds for his concerns were understood.

However, two weeks later, on November 23, Dr. Johnson sent Dr. O'Meara a letter stating that the Executive Committee had initiated an investigation pertaining to the propriety of Dr. O'Meara's conduct. The letter stated: "Quality review reports have been brought to my attention which raise concerns regarding your behavior and comments that were supposed to have been made to patients and family members of patients . . . as well as interaction with hospital staff. [] As a result of the [November 10 meeting] in which you denied any inappropriate behavior, the Executive Committee has determined that an investigation is warranted. The investigation will be conducted primarily by an ad hoc committee appointed by the Executive Committee which includes four physician members of the Executive Committee. The committee will contact you at some point in the future. [] During the period that this investigation is underway, the Executive Committee has asked that you step down as Chairman-Elect of the Department of Orthopaedic Surgery/Rehabilitation."

Approximately six weeks later, on January 5, 2000, Dr. Johnson notified Dr. O'Meara that the ad hoc committee had completed its "interviews with other involved individuals and are now ready to interview you regarding [the Roe and Doe] incidents. [] A meeting has been scheduled for Monday, January 17 . . . . Attorneys will not be present. A member of the [hospital] staff . . . will be present to take minutes and the meeting will not be tape recorded by any participants." Dr. O'Meara agreed to meet with the committee, but asked for a certified shorthand reporter "to assure accurate documentation" of the meeting. This request was denied, and the meeting was held on January 17.

Approximately two weeks later, the ad hoc committee notified Dr. O'Meara that it wanted to conduct a second meeting "to discuss the status of the investigation." Dr. O'Meara agreed to the meeting, and the meeting was held on February 3. The ad hoc committee did not permit Dr. O'Meara to bring an attorney or tape record this second meeting.

On February 3, the ad hoc committee issued a report (which was not given to Dr. O'Meara) recommending that Dr. O'Meara be placed on probationary status. With respect to patient Roe, the report stated that interviews were held with the trauma surgeon, Palomar's patient satisfaction coordinator, Palomar's patient care director, and Roe's mother, and that based "upon a preponderance of the evidence drawn from these interviews and reviews of submitted documentation . . . inappropriate and unethical comments were made by [Dr. O'Meara] to the patient's family." The report stated that Dr. O'Meara denied that he made the statements attributed to him. With respect to patient Doe, the report stated that, based "upon a preponderance of the evidence drawn from [an interview with a critical care nurse] and review of submitted documentation, it is our determination that inappropriate comments were made to the patient. . . ." The report stated the ad hoc committee "spoke twice with [Dr. O'Meara] who denied that the statements were made."

Based on these factual findings regarding patients Roe and Doe, the ad hoc committee recommended Dr. O'Meara be placed on probationary status. On February 28, the Executive Committee held an executive session to review the ad hoc committee's report, and ultimately approved the probation recommendation. The next day, the Executive Committee sent Dr. O'Meara a letter notifying him of this determination.

Approximately two weeks later, Dr. O'Meara requested a hearing to allow him to challenge the propriety of the Executive Committee's findings and discipline. The Executive Committee denied this request, stating the bylaws do not provide for a hearing to challenge a probation. The Executive Committee also denied Dr. O'Meara's request for a copy of the minutes from his two meetings with the ad hoc committee, but provided Dr. O'Meara with a summary of the statements attributed to him. Dr. O'Meara claims the partial minutes given to him were inaccurate and incomplete. He also claims the ad hoc committee refused to interview patient Roe's family members who were supporting his version of the facts.

Analysis of First Probation

Defendants contend Dr. O'Meara's claims based on the First Probation are barred because he did not exhaust his judicial remedies by challenging this discipline in a writ of mandamus proceeding. Dr. O'Meara counters the defense is inapplicable because he was not provided a quasi-judicial hearing before this discipline was imposed and therefore this case falls within the Westlake exception.

After carefully reviewing the record and the applicable legal authorities, we conclude the judicial exhaustion defense applies to claims based on the First Probation. Dr. O'Meara was not given a formal hearing, but he was given the functional equivalent during the investigation of the charges. During the November 10 meeting and in the following November 23 letter, the Executive Committee provided Dr. O'Meara specific notice of the nature of his claimed improper conduct, including quotations of the statements alleged to be attributed to him. Dr. O'Meara was twice provided the opportunity to explain his version of the facts and to refer the committee to other witnesses whom he believed would support his version. In these meetings, Dr. O'Meara further had the opportunity to raise issues relating to perceived retaliation for his advocacy on behalf of his patients. The ad hoc committee heard Dr. O'Meara's statements and interviewed several percipient witnesses and then made a factual finding based on the "preponderance of the evidence" that Dr. O'Meara's denials were not credible and that Dr. O'Meara made the alleged inappropriate comments to Roe's family and to patient Doe. The ad hoc committee further found these comments supported the need to place Dr. O'Meara on probation to monitor his conduct. The Executive Committee then met in closed session and adopted these findings.

On this record, Dr. O'Meara was provided specific notice of the complaints against him and had the opportunity to defend himself in a confrontational setting before the discipline was imposed. Therefore, he was required to challenge the probation through a writ of mandate before seeking damages arising from the probation. (Westlake, supra, 17 Cal.3d at pp. 482-486.)

Dr. O'Meara argues that he was not given a "fair hearing" because he had no opportunity to submit written materials on his behalf, the ad hoc committee did not interview the other Roe family members who were supporting Dr. O'Meara's version of the facts (and who submitted declarations on his behalf in opposition to the anti-SLAPP motion), and the ad hoc committee did not forward relevant evidentiary material to the Executive Committee. However, to the extent that he should have been given these procedural rights, Dr. O'Meara was required to assert these arguments in a writ of mandate proceeding. (Westlake, supra, 17 Cal.3d at pp. 482-486; Holder, supra, 114 Cal.App.3d at p. 164.) In light of the strong public policy of deference to hospital peer review panel decision making, we are required to narrowly construe the Westlake exception. Where, as here, a physician defendant is given notice and provided an opportunity to be heard before a punishment is imposed, a physician who believes he was not given the procedural protections to which he was entitled is required to bring a writ of mandate challenging these perceived errors.

We reject Dr. O'Meara's additional argument that defendants waived their right to challenge the "probability of prevailing" issue on the First Probation because they did not raise the issue in their initial appellate briefs. Because the trial court denied the motion based solely on the Second Probation, defendants did not waive the argument by failing to assert it in their initial briefs. In any event, defendants did raise the issue in their subsequent briefs on appeal, and Dr. O'Meara had the full opportunity to address the issue in response to defendants' arguments. Thus, there was no waiver.

D. Second Probation

With respect to the Second Probation, Dr. O'Meara was not required to exhaust his judicial remedy because he was not provided any form of a quasi-judicial hearing. It is undisputed on the record before us that he was given no advance notice and no opportunity to present his