Dorn v. Mendelzon (196 Cal. App. 3d 933, 1987)

Opinion

McCARTY, J.

— Plaintiff-appellant William Dorn III, an orthopedic surgeon, brought an action for defamation against two hospitals and their administrators arising from the disclosure of evaluative information contained in plaintiff’s personnel file. In this appeal from a summary judgment adverse to plaintiff, we consider the nature and extent of statutory privileges applicable to a hospital’s communications regarding peer evaluations of a doctor’s performance there, where such communications were made (1) to the Board of Medical Quality Assurance (BMQÁ) and (2) to another hospital which requested such information in order to aid in its consideration of whether to grant the doctor staff privileges.

Factual Background

In the summer of 1976, plaintiff submitted separate applications for staff privileges as an orthopedic surgeon at Broadway Hospital (Broadway) and Vallejo General Hospital (Vallejo General), both of which were located in the City of Vallejo. Plaintiff was subsequently permitted to perform surgery while being “proctored” at both hospitals. Proctoring is a method by which experienced practitioners at a hospital monitor the progress and evaluate the skills and knowledge of new staff doctors.

In a letter addressed to plaintiff dated November 22, 1976, Dr. Charles Glover, chairman of Broadway’s credentials committee stated that, based on its review of four recent proctor reports, the credentials committee would recommend to the hospital’s executive committee that plaintiff only be allowed to perform surgery “with the assistance of a qualified orthopedic surgeon with staff privileges in this hospital, flf] This recommendation will be in effect until final decision is reached at the next Executive Committee meeting, December 13, 1976. You will be notified of their decision.” Two weeks after Dr. Glover’s letter was sent, plaintiff notified Broadway that, effective immediately, he was withdrawing his application for privileges and no longer wished to perform surgery there. In opposition to the summary judgment motions, plaintiff denied receiving Dr. Glover’s letter, claimed he had no knowledge of any disciplinary action taken against him by Broadway until three years later, and asserted that he resigned solely for economic and ethical reasons. As we shall see, plaintiff’s assertions, even if true, are irrelevant to the controlling issues of law.

Shortly after plaintiff’s resignation, Ronald D. Mendelzon became chief administrator at Broadway. Believing that he was required by law, and specifically Business and Professions Code section 805, to report plaintiff’s situation to BMQA, Mendelzon spoke with Broadway staff personnel, reviewed correspondence including the two letters just mentioned, and completed a form entitled “Disciplinary Report.” The report (sometimes hereafter referred to as the BMQA report) recited the restriction on plaintiff’s staff privileges as noted in Dr. Glover’s letter and concluded that “[ujpon notification of the above, Dr. Dorn withdrew his application for privileges at Broadway Hospital 12-6-76.” Mendelzon signed the report as “Chief Administrator or Executive Officer” and mailed it to BMQA on January 25, 1977.

On June 6, 1977, Mendelzon received a letter from BMQA. The letter acknowledged that section 805 required Mendelzon to report “any restrictive action taken with respect to a physician’s staff privileges,” but noted that after a full investigation of plaintiff, “the Board was unable to confirm any violation of the Medical Practice Act.”

On April 12, 1979, plaintiff filed an application for staff privileges at Centinela Hospital Medical Center [Centinela] in Southern California. In the course of processing the application, Centinela learned of the BMQA report pertaining to the restriction on plaintiff’s privileges. Consequently, on March 14, 1980, Centinela wrote a letter of inquiry to Jack Manley, administrator of Vallejo General, which by that time had purchased Broadway’s assets. The letter noted that, according to the BMQA report, plaintiff’s privileges were restricted on the basis of “proctor reports.” Centinela therefore requested that Manley provide “a written summary or copy of those proctor reports and the reasons for his restrictions . . . .”

Upon receipt of the letter, Manley reviewed plaintiff’s files at both Broadway and Vallejo General. He then wrote a confidential reply letter (sometimes hereafter referred to as the Manley letter), stating that a review of plaintiff’s proctor reports indicated “lack of follow-up visits to in-house patients post-operatively, failure to conform to the utilization plan for the hospital, failure to procure MediCal authorization, and unacceptable technical skill during certain surgical procedures. Other reports indicated adequate care.” After receipt of this information, Centinela increased the number of cases on which plaintiff had to be “proctored” in connection with his application; ultimately, however, plaintiff was granted staff privileges at Centinela.

Procedural Background

Plaintiff’s fourth amended complaint for “Libel and Slander, Intentional Infliction of Emotional Distress, Negligent Hiring and Supervision” names Mendelzon, Broadway, Vallejo General and Manley as defendants. Broadway and Vallejo General were made party-defendants on the apparent theory that they were vicariously hable for the acts of Mendelzon and Manley respectively, except for one cause of action which alleges that VaUejo General negligently hired and supervised Manley, proximately resulting in his having written the 1980 letter. Although the complaint sets forth 51 purported causes of action and consists of 200 charging paragraphs, it is clear that it is based squarely upon two alleged tortious acts: Mendelzon’s filing of the BMQA report in 1977 and Manley’s letter to Centinela in 1980. Each of these communications was alleged to have been “false, malicious and libelous and made with the intent of injuring plaintiff in his high regard and respect in his profession . . . .” Plaintiff sought $4 million in general damages and $5 million in punitive damages.

After substantial discovery was undertaken, Manley and Vallejo General moved for summary judgment, based upon a host of asserted privileges. The superior court granted the motion, finding that the Manley letter was protected by the qualified privileges set forth in Civil Code sections 43.8 and 47, subdivision 3 (hereafter section 47(3)), and that plaintiff did not raise a triable issue on the question of malice. A few weeks later Mendelzon and Broadway successfully moved for summary judgment in their favor, the court finding that the BMQA report was absolutely privileged under section 47, subdivision 2 (hereafter section 47(2)), as well as the qualifiedly privileged under sections 43.8 and 47(3); the court made a similar finding of a lack of triable issue on the question of malice. Plaintiff appeals from both of these judgments.

Appeal

I.

The Standard of Review

This case reaches us after successful motions for summary judgment. “Summary judgment is properly granted where the evidence in support of the moving party conclusively negates a necessary element of the plaintiff’s case or establishes a complete defense and thus demonstrates that under no hypothesis whatever is there a material factual issue which requires the process of a trial. [Citations.] In making its determination, the trial court may rely on ‘affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice . . . may be taken.’ [Citations.] The party opposing the motion for summary judgment supported by such . . . [documents] has the burden of showing that triable issues of fact exist. [Citation.] ‘The purpose of the summary procedure is to penetrate through evasive language and . . . adept pleading and ascertain the existence or absence of triable issues.’ (Chem v. Bank of America [(1976) 15 Cal.3d 866] at p.873 [127 Cal.Rptr. 110, 544 P.2d 1310].)” (Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 850 [200 Cal.Rptr. 674], italics added.) Here, the evidence set forth in the moving and opposition papers demonstrated that the basis of plaintiff’s lawsuit rested upon the 1977 BMQA report filed by Mendelzon and the 1980 letter written by Manley to Centinela. The propriety of summary judgment thus depends upon the nature and extent to which each was a privileged communication.

II.

The BMQA Report

Section 47(2) provides, in pertinent part: “A privileged publication or broadcast is one made—. . . ffl] 2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable [by writ of mandate] . . . .” The privilege conferred by this section is absolute and is unaffected by the existence of malice. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 667 [211 Cal.Rptr. 847]; Royer v. Steinberg (1979) 90 Cal.App.3d 490, 500 [153 Cal.Rptr. 499].)

BMQA is an administrative agency created by the Legislature whose responsibilities include enforcement of the Medical Practice Act and review of the performance of physicians and surgeons licensed in California. (Bus. & Prof. Code, §§ 2001, 2004; Long v. Pinto (1981) 126 Cal.App.3d 946, 948 [179 Cal.Rptr. 182].) It is an agency analogous to the State Bar of California, with the duty to investigate complaints and the power to initiate disciplinary proceedings against practitioners. (Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125 [195 Cal.Rptr. 5]; Bus. & Prof. Code, §2220; Gov. Code, § 11500 et seq.) Disciplinary actions taken against a licensee are reviewable by application for writ of mandate. (See Bus. & Prof. Code, § 2230, Gov. Code, § 11523.) Accordingly, any publication in connection with BMQA proceedings is clothed with the absolute privilege set forth in section 47(2), as having been made in the course of an “official proceeding” (§ 47(2), cl. (3)) and proceedings reviewable by writ of mandate (§ 47(2), cl. (4); Long v. Pinto, supra, 126 Cal.App.3d at p. 950).

Furthermore, letters or communications designed to prompt official action are as much a part of an “official proceeding” as a communication made after the proceeding has commenced. (Lebbos v. State Bar, supra, 165 Cal.App.3d 656, 668; Long v. Pinto, supra, 126 Cal.App.3d 946, 948-949; King v. Borges (1972) 28 Cal.App.3d 27, 34 [104 Cal.Rptr. 414].) The reason for this rule is that an administrative agency, to function effectively, must have an “open channel” by which concerned persons may call attention to suspected wrongdoing. (King v. Borges, supra, at p. 34.) As a matter of public policy, “[T]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual.” (Ibid.; see also Long v. Pinto, supra, at p. 950 [126 Cal.App.3d].)

The BMQA report filed by Mendelzon in January 1977 unquestionably falls within the protection of this privilege. Business and Professions Code section 805 requires a hospital administrator to report to BMQA all actions undertaken to suspend, revoke or curtail the staff privileges of any physician or surgeon for more than 45 days. (See fn. 1, ante.) Although plaintiff resigned from Broadway shortly after the imposition of the credentials committee’s restriction on his staff privileges and prior to hearing on a final determination by the executive committee, Mendelzon believed that, as Broadway’s administrator, section 805 imposed upon him a mandatory duty to report the action to BMQA. BMQA affirmed the same belief in its letter to Mendelzon several months later. That belief was erroneous since the curtailment of privileges did not extend beyond the 45-day threshold period necessary to trigger a reporting requirement. Nevertheless, Mendelzon’s misinterpretation of the statute did not affect the basic purpose of the report, which was to notify BMQA of events which might warrant the investigation of a licensed physician.

In Long v. Pinto, supra, 126 Cal.App.3d 946, 948, an informal letter of complaint to BMQA pertaining to plaintiff doctor was held to be absolutely privileged under section 47(2). Even stronger policy considerations compel application of that privilege to a report to BMQA made under a good faith belief that the communication is required by law.

Plaintiff’s brief repeatedly emphasizes his declaration that he was not notified of the BMQA report or the disciplinary action undertaken by Broadway until three years after the fact. He asserts that Broadway’s failure to properly notify him of the proceedings deprived him of “due process of law.” He cites Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 478 [131 Cal.Rptr. 90, 551 P.2d 410] for the proposition that Broadway’s failure to afford him proper procedural rights under its bylaws to contest the discipline imposed in Dr. Glover’s letter strips it of the immunity granted by section 47(2). The cited portion of Westlake merely holds that where defendant hospital failed to afford a staff physician her procedural rights, it could not rely on the exhaustion of remedies doctrine as a complete defense in a tort action based upon a wrongful termination of staff privileges. Unlike Westlake, however, plaintiff’s lawsuit is premised solely upon the statements made in the BMQA report, not the underlying disciplinary action undertaken by the credentials committee. The Westlake opinion was careful to note that statements made in the course of official proceedings (as distinguished from the actions of the peer evaluation committees) have always enjoyed the absolute immunity set forth in section 47(2). (17 Cal. 3d at p.482.)

Plaintiff confuses the propriety or justification for the disciplinary action with the communication of that action to BMQA. Regardless of the merits of Broadway’s restriction on plaintiff’s privileges, Mendelzon’s reporting of that action to the state agency responsible for monitoring the performance of licensed physicians was absolutely privileged. Although the complaint sets forth an alternative cause of action for intentional infliction of emotional distress as the result of Mendelzon’s report, it is settled that the privilege provided by section 47(2) may not be defeated by asserting a different tort theory based upon the same protected communication. (Dong v. Board of Trustees (1987) 191 Cal.App.3d 1572, 1593 [236 Cal.Rptr. 912]; Lebbos v. State Bar, supra, 165 Cal.App.3d 656, 667; Chen v. Fleming (1983) 147 Cal.App.3d 36, 40 [194 Cal.Rptr. 913].) Mendelzon and Broadway were entitled to judgment as a matter of law.

III.

The Manley Letter

The trial court found that Manley’s letter to Centinela summarizing plaintiff’s proctor reports and his discipline at Broadway was protected by the qualified privileges set forth in sections 43.8 and 47(3). We agree.

Section 43.8 provides, in pertinent part: “In addition to the privilege afforded by Section 47, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of such person to any hospital, hospital medical staff,. . . [or] peer review committee .. . when such communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing . . . arts and does not represent as true any matter not reasonably believed to be true.” This section affords a qualified privilege to any communication of information intended to aid in evaluating a physician’s qua-locations, character and fitness to institutions such as hospitals and peer review committees who have a strong interest in receiving such information. (See Hackethal v. Weissbein (1979) 24 Cal.3d 55, 60 [154 Cal.Rptr. 423, 592 P.2d 1175, 9 A.L.R.4th 791].)

The Manley letter was certainly intended to aid in the evaluation of plaintiff’s qualifications, and plaintiff does not contend otherwise. In fact, the letter was solicited by Centinela’s credentials committee for the purpose of assisting its consideration of plaintiff’s application for staff privileges. Thus, the qualified immunity for communications evaluative of medical practitioners set forth in section 43.8 is applicable.

Section 47(3) grants a privilege to any publication or broadcast made “without malice,” to a person interested therein, “(2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.”

There can be no doubt that Centinela was a “person interested” within the meaning of this section. The information served an important interest which Centinela had in assessing the qualifications and fitness of a proposed staff member. Indeed, the Legislature itself has explicitly recognized the important interest which hospitals and peer review committees have in evaluative reports on staff doctors by creating the parallel qualified privilege set forth in section 43.8, discussed previously.

Manley qualified as “one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent . . .” (§ 47(3), cl. (2)) since he was: the administrator of Vallejo General, had never met plaintiff, and was the logical authority to respond to an inquiry concerning plaintiff’s personnel records. Manley was also directly requested to provide the’information in question; therefore the letter came within the purview of section 47(3), clause (3) as well.

The only remaining question is whether the letter was written with “malice.” Once a qualified privilege is shown to be applicable, plaintiff has the burden of producing evidence of malice. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 752 [181 Cal.Rptr. 423]; Warfield v. McGraw-Hill, Inc. (1973) 32 Cal.App.3d 1041, 1047 [108 Cal.Rptr. 652].)

The trial court’s task was to determine, from the moving and opposing papers, whether there was “a sufficient showing of malice to warrant submission of that issue to the jury. [Citations.]” (