Filed 12/17/13 Samuel v. Providen ce Healthcare Systems-So. Cal. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

CHRISTOJOHN SAMUEL et al.,
Plaintiffs and Respondents,

v.

PROVIDENCE HEALTHCARE SYSTEMS-SOUTHERN CALIFORNIA,
Defendant and Appellant. B242208
(Los Angeles County Super. Ct. No. PC051773)

APPEAL from an order of the Superior Court of Lo s Angeles County, Melvin Sandvig, Judge. Affirmed. Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, David P. Pruett and Jennifer A. Cooney for Defendant and Appellant. Nossaman LLP, Mitchell J. Green and Chelsea N. Trotter for Plaintiffs and Respondents.

________________ ______________2 Defendant and appellant Providence Hea lth Systems-Southern California (the Hospital), doing business as Providence Holy Cross Medical Center, appeals from an order denying a special motion to st rike under the anti-SLAPP statute, 1 Code of Civil Procedure section 425.16, 2 in favor of plaintiffs and respondents Christojohn Samuel, M.D., Christojohn Samuel, M.D., Inc., Wali d Arnaout, M.D., and Walid Arnaout, M.D., Inc. (referred to collectively as the Doctors). The Doctors allege the Hospital negligently failed to control the disruptive behavior of a nother physician. The trial court denied the anti-SLAPP motion, finding the complaint was subject to the anti-SLAPP statute because it arose from a peer review proceeding, but th e Doctors had demonstr ated a probability of prevailing on the merits. On appeal, the Hosp ital contends the Doctors failed to show a probability of prevailing for several reasons. However, we conclude the complaint does not arise in connection with a peer review proceeding, and ther efore, the anti-SLAPP statute does not apply. Therefore, we a ffirm the order denying the anti-SLAPP motion. 3

FACTS AND PR OCEDURAL BA CKGROUND

Allegations of the Complaint

On October 20, 2011, the Doctors file d a complaint against the Hospital and Bradley Roth, M.D. Arnaout alleged a cause of action for battery against Roth, and the Doctors alleged a cause of action for negligen ce against the Hospital. Samuel, Arnaout, and Roth are trauma surgeons and members of the Hospital’s medical staff. Samuel was
the medical director of trauma services until mid-2009.

1 “SLAPP is an acronym for ‘strategic la wsuit against public participation.’” ( Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

2 All further statutory references are to the Code of Civil Procedure unless otherwise stated.

3 The Hospital’s motion to dismiss th e Doctors’ cross-appeal is granted.3 In August 2008, Roth campaigned for on-call shifts at the Hospital to be scheduled for himself and his practice pa rtner David Hanpeter, M.D., on a preferential basis, rather than divided fairly among the eligible trauma surgeons. Roth intended to displace and
interfere with the economic benefits of Sa muel and the other trauma surgeons. To accomplish his purpose, Roth us ed insulting and inappropriate language, disparaged the Doctors’ professional competency to their patients, interfere d with other physicians’ care and treatment by inspecting their patients’ char ts, replacing their orders with his own, and providing contrary instructions to nurses, wrot e letters to and requested meetings with the Hospital’s administration in order to questi on Samuel’s leadership and influence the Hospital to substitute Hanpeter as medical di rector, refused to treat patients affiliated with the Doctors, and made false and exag gerated reports to peer review committees against the Doctors and other trauma surgeons. In December 2008, a department chairperson complained to the Hospital administration ab out Roth’s conduct and stated
that Roth’s conduct threatened the quality of patient care. On December 18, 2009, Roth physically attacked Arna out. The Hospital took no disciplinary action. On several occasions, Ro th and Hanpeter acknowledged that Roth’s conduct was disruptive and needed improvem ent. The Doctors and other physicians repeatedly complained to the Hospital about Ro th’s conduct, yet the Hospital did not take reasonable measures to investigat e or control Roth’s conduct. The Hospital expressly ackno wledged that the physicians ’ ability to deliver quality care depends on communication, collaboration, and teamwork. The Hospital undertook to adopt, implement, and enforce conduct standards to manage disruptive and inappropriate behavior by individual physicia n members of the medical staff and to assure a workplace free from intimidation, disr uption, and violence. The Doctors relied on the Hospital’s representations that they would enforce these standards, which were contained, in part, in the medical staff bylaws. The Hospital had a duty to use reasonable
care to enforce these standards. Roth’s disruptive conduct violated section 3.8 of the medical staff bylaws. The Ho spital breached its duty of care by failing to enforce the standards against Roth. As a consequence of the Hospital’s breach, the Doctors were4 forced to either resign or endure intolerabl e working conditions th at jeopardized their ability to deliver quality patient care. Because no reasonable, similarly situated physician would have continued to pr ovide care under these conditions, the Doctors resigned from the trauma service. As a proximate cause, the Doctors have suffered damages, including loss of income, and suffered emotional distre ss. The Hospital’s failure to enforce its policies against Roth amounted to kno wing ratification of his conduct.

The Hospital’s Special Motion to Strike and Supporting Evidence

The Hospital filed an anti-SLAPP moti on. The Hospital argued that the antiSLAPP statute applies in this case, because the complaint raises i ssues related to the Hospital’s peer review process, which is c onsidered official proceedings under the antiSLAPP statute. The Doctors’ cause of acti on for negligence was based on a provision of the medical staff bylaws setting a peer review standard and procedure. The Hospital’s peer review process encompasses assessment of a physician’s disruptive conduct and the Hospital has no control over physicians other th an through peer review. The allegations of the complaint refer to reports made by Ro th in connection with peer review. The Doctors, in fact, initiated a request for correc tive action under the peer review procedures. Issues regarding the Doctors’ status on the medical staff or disruptive behavior by Roth were subject to resolution under the bylaws. The complaint in the instant case is an improper collateral attack. Th e Hospital also argued that it was entitled to prosecutorial immunity when exercising discretion in ac ting on complaints of misconduct. Lastly, the Hospital argued the Doctor s could not establish a probability of prevailing, because: peer review acts ar e immune from liability, the Hospital has no control over physicians other than through peer review, the Doctors failed to exhaust administrative remedies, the Hospital is not lia ble for Roth’s battery of another physician, and there were no allegations on beha lf of the medical corporations. In support of the anti-SLAPP motion, th e Hospital submitted the declaration of its chief executive officer, as well as the medical staff bylaws. Article III of the bylaws5 explains the nature and qualifications for me mbership on the medical staff, including the code of conduct for practitioners set forth in section 3.8. The conduct provisions state, as a member of the medical staff, “I acknowle dge that the ability of practitioners . . . and hospital staff employees to jointly deliver high quality health care greatly depends upon their ability to communicate we ll, collaborate effectively, and work as a team. I recognize that patients, fami ly members, visitors, colleagues and hospital staff members must be treated in a dignified and respec tful manner at all times. To this end, practitioners on the medical staff of [the Hospita l] . . . are expected to conduct themselves in a professional manner whenever they are on the grounds of the medical center. I agree to adhere to the following gu idelines in support of enha ncing the delivery of quality patient care within [the Hospita l]. [¶] 1. Respectful Trea tment [¶] I agree to treat patients, family members, vis itors and members of the health care team of [the Hospital] in a respectful and dignified manner at all times. I acknowledge that my language, attitude and appearance may impact delivery of quality patient care. I agree to work with
other members of the health care team to reso lve conflicts or address occasional lapses of decorum when they arise. . . . [¶] . . . [¶] 3. Beha vior [¶] I agree to refrain from any behavior that is deemed to be intimidating or harassing . . . . As a member of the Medical Staff . . . , by accepting appointment and reappoi ntment to the Medical Staff, I agree to abide by these provisions. Every effort w ill be made to be non-judgmental with interviews and provide opportunity to correct the problem prior to corrective action by
the Medical Staff. Process is defined in th e ‘Policy on Joint Inve stigation of Alleged Medical Staff Discrimination, Harassment, or Disruptive Behavior – Investigation and Disciplinary Procedures.’ (Added 12/08)” Article VIII of the bylaws provides proc edures for corrective action. The criteria
to initiate routine corrective action under section 8.1-1 is set forth as follows: “An investigation or corrective ac tion may be requested, and u ltimately initiated, against any practitioner with clinical privileges and/or Medical Staff membersh ip who engages in, makes, or exhibits acts, statements, demeanor or professional conduct (either within or outside of the Hospital) and the same: [¶] (a) is, or is reasonably likely, to be6 detrimental to patient safety or to the deliv ery of quality patient care within the Hospital; to be disruptive to Hospital operations; to cons titute fraud or abuse; or, to be, in other respects, lower than the standards of the Ho spital and the Medical Staff; or, [¶] (b) results in the imposition of sanctions by any governmental authority.” A proposal for corrective action or a re quest for investigation may be initiated under section 8.1-2 by the medical executiv e committee (MEC), or by a written request to the MEC from a medical staff officer, the chairm an of any clinical department in which the practitioner holds membership or clinical privileges, the chairman of any standing medical staff committee, the governing body, or the administrator. A written request proposing corrective action or investigation must identify the underlying conduct. When the MEC receives a proposal for action under s ection 8.1, the chief of staff notifies the administrator and the governing body, keepi ng them informed of subsequent action. Upon receipt of a proposal for action u nder section 8.1, the MEC may take action or direct that an investigati on be undertaken. The MEC must take action within 60 days of receiving a proposal for action under se ction 8.1. The MEC’s options include recommending no corrective action, rejection, or modification of the proposed corrective action, a letter of admonishment, imposition of probation terms, re duction or revocation clinical privileges, and other increasingl y severe actions. If the MEC recommends corrective action, the recommendation is tran smitted to the Board of Trustees (the Board). If the MEC’s recommendation is su pported by substantial evidence, the recommendation must be adopted by the Boar d as a final action, unless the member requests a hearing, as provided for in the bylaws. The MEC may defer any action when additional time is needed to investigate or co nsider the proposal fo r action. Following a deferral, the MEC must take action by the de adline specified in the deferral, or if no deadline was specified, th en within 45 days of the defe rral. Any recommendation by the MEC which constitutes grounds for a hear ing entitles the affected practitioner to procedural rights set forth in the bylaws. Section 8.1-8 specifies procedures to follow based on the substance of the MEC recommendation. Under section 8.1-8, subdi vision (e), if the MEC fails to act in a7 reasonable period of time on a proposal for corrective action, the governing body may set
a reasonable deadline for the ME C to take action, and if the MEC does not adhere to the deadline, take action on its own initiative and recommend action that does not constitute grounds for a hearing. If the MEC fails to in vestigate or take disc iplinary action contrary to the weight of the evidence, the Board may direct the MEC to ini tiate investigation or disciplinary action after consultation with th e MEC. The Board ca n initiate corrective
action if the MEC fails to take action in response to the Board’s direction. The Hospital also submitted its written po licy on joint investigation of alleged medical staff/professional staff discrimina tion, harassment, or disruptive behavior— investigation and disciplinar y procedures. The policy states that complaints of discrimination, harassment, or disruptive behavior concerni ng a practitioner are referred
to the chief medical officer and the chief of st aff of the medical staff/professional staff. The policy states that upon clos ure of a review or investigation, the reporting party shall be given appropriate notice. Disruptive behavior was defined as “conduct that substantially interferes with an individual’ s employment or creates an intimidating,
hostile or offensive work environment.” Th e policy primarily focuses on discrimination
and harassment but states that if the initial review shows the practitioner or member of the medical/professional staff demonstrated a pattern of disruptive behavior, then a formal investigation process will be la unched, as describe d in the policy. The Hospital submitted a letter from Chief Executive Larry Bowe, dated August 17, 2009, stating that Hanpeter was ta king over as medical director of trauma. The Hospital also submitted a letter, dated September 4, 2009, from Samuel, Arnaout, and two other physicians to the president of the MEC objecting to the changes in the trauma service. They asked to have the tr auma service placed on the MEC’s agenda for evaluation, rather than allowi ng the Hospital administration to make a decision on behalf
of the MEC. On October 26, 2009, Samuel, Arnaout, and two other phys icians submitted a request for corrective action investigation to th e MEC, Bowe, and other hospital officials. They requested initiation of a corrective action investiga tion of Roth pursuant to8 section 8.1-1 and 8.1-2 of the bylaws. The ba sis for the request was that Roth repeatedly engaged in actions detrimental to patient safety and quality of care, and consistently acted in a manner disruptive of hospital operations. They accused Roth of exhibiting arrogance and disrespect to colleagues. Previous comp laints were swept unde r the rug after a token apology from Roth. Roth improperly reviewed patient records and altered patient care without the knowledge or approval of the attending physician. The changes were life threatening and made withou t examining the patient. Ro th criticized the attending physician in the presence of nurses and the patient’s family. Roth exercised clinical procedures for which he had not been trained. He refused to assist a patient in respiratory distress. He performs unnecessary procedures . These complaints are documented in peer
review records and warra nt an investigation. On April 30, 2010, Arnaout resigned from the trauma service. Samuel resigned on May 3, 2010. The Hospital also filed a demurrer to the complaint.

The Doctors’ Opposition to the Special Motion to Strike and Supporting Evidence

The Doctors opposed the anti-SLAPP motio n on the ground th at the anti-SLAPP statute did not apply, because no official proceeding had ta ken place and their negligence claim was based on conduct, no t communication. Even if the anti-SLAPP statute applied, they asserted they could show a probab ility of prevailing, because the Hospital voluntarily assumed a duty to control disr uptive conduct by medical staff members, which the Hospital breached by failing to act in light of Roth’s conduct. The Doctors provided a letter from the Hosp ital to the medical staff distributing a standard on disruptive physic ians that had been approved by the Hospital’s executive council. The Hospital stated , “Disruptive behavior and ot her inappropriate behavior undermine our culture of safety and the perf ormance of the health care team entrusted with the care of our patients.”9 They also provided copies of letters in which physicians had complained to the Hospital about Roth’s disruptive behavior. Th e chairman of the division of orthopedic surgery at the Hospital wrote a letter, dated December 5, 2008, with complaints against Roth. He accused Roth of ripping orders from a patient’s chart and substituting his own orders. He disputed several accusations ma de by Roth and criticized Roth’s ability to perform certain procedures. He stated th at patient care was being compromised on a daily basis as a result of Roth’s demeaning and disruptive behavior. On December 15, 2008, Samuel also wrote a le tter to the Hospital’s director of human resources seeking
assistance with Roth’s disruptive behavior.
The Doctors submitted Arnaout’s declarati on and copies of letters that he had written. At a meeting in November 2008, Ar naout witnessed Roth stamp his foot, raise his voice, and berate Samuel. Arnaout wr ote a letter, dated Ma y 20, 2009, to the chairman of the department of surgery, co mplaining that Roth was criticizing Arnaout’s care in meetings and reviews without an objective basis. Arnaout asked the
administration and medical staff office for a full investigation of Roth’s motives. Arnaout received no response. In July 2009, Arna out complained that Roth had interfered with the care of Arnaout’s patient by ordering a test that Ar naout did not think wa s necessary. Arnaout received no response from the Hospital other th an Samuel’s response that the Hospital would not support curbing Roth’s behavior. On August 31, 2009, Arnaou t was in surgery at anothe r hospital when his patient at the Hospital suffered respiratory distress. He learned from a third party that Roth refused to administer care unless the patient was blue or needed a surgical airway. Arnaout wrote a complaint to Samuel as the director of trauma services dated September 25, 2009, asking for a discussion of the incident and Arnaout’s concerns at the next peer review committee. Arnaout was to ld that the matter woul d be handled outside of the peer review process, but it was not. On October 26, 2009, Arnaout, Samuel, and two other members of the trauma department submitted the request for correctiv e action described above. The chief of10 staff wrote a letter to Samuel, dated November 2, 2009, in response. The request for an investigation had been considered by the MEC at its meeting that day. “The MEC noted that your letter raised serious concerns re garding the physician’s quality of care. A
number of cases referenced in your letter have not been re viewed by any peer review committee at [the Hospital] to date. As a result, the MEC voted to table your request for an investigation pending the co mpletion of a review of thes e cases by the Surgery Peer
Review Committee. After the MEC has rece ived the results fro m the Surgery Peer Review Committee’s review, the ME C will act upon your request.” At a meeting in November 2009, Hanpet er admitted Roth had behavioral issues
but insisted Roth had made c ontributions to the department and would be a team player. Roth acknowledged his behavior had been in appropriate, apologized, and promised to change his behavior. At the end of the m eeting, everyone received a copy of a book about improving the Hospital culture. On December 19, 2009, a patient arrive d at 6:50 p.m. and Arnaout’s shift was scheduled to end at 7:00 p.m. Roth arrive d for his shift at 7:00 p.m. Arnaout was busy with another patient and asked Roth to care for the new patient. Roth exploded, “Dr. Arnaout, you have written me up five times in the past fe w months, five times[, Doc]. It’s five minutes to [7:00] and its five minutes on your time. He’s all your[s] buddy.” After taking care of both patients, Arnaout cr ossed paths with Roth at 7:30 p.m. Roth complained that Arnaout had written him up five times. Arnaout refu sed to discuss it and walked away. Roth grabbed Arnaout by the sh oulder and stopped him. Arnaout accused him of assault, and Roth apologized. Arna out filed a complaint about the incident on December 26, 2009, but did not receive a substantive response. The Hospital investigated Arnaout’s conduct in connection with the incident and reprimanded him for using profanity. On March 1, 2010, the Hospita l’s chief of staff sent a letter to Arnaout stating, “As you are aware, the Surgery Peer Review Co mmittee was tasked by the [MEC] to review cases referenced in your letters, dated October 26, 2 009, and December 1, 2009, regarding an investigation of Bradley Roth, M.D. The Su rgery Peer Review Committee11 completed its thorough review and submitted its findings to the MEC. The MEC has determined that no formal investigation, pursuant to the Medical Staff Bylaws, is warranted at this time regarding the issues you raised concerning Dr. Roth’s patient
care.” “With regard to the issues you raised concerning Dr. Roth’s alleged disruptive behavior, the MEC has not yet made a determ ination whether a formal investigation is necessary. As a related matter, as you know, [the Hospital] rece ntly appointed a new
Trauma Director. The MEC h opes this new Trauma Director will work to alleviate the inter-personal conflicts you believe exis t between members of the Trauma Team, including Dr. Roth.” Arnaout was forced to resign from the me dical staff on April 30, 2010, because the Hospital failed to take any reasonable action in response to his comp laints about Roth’s disruptive behavior. Roth’s continuing disruptive conduct rendered the Hospital an unreasonably difficult workplace, at which patient care was at risk. Arnaout suffered financial loss as a result of his resignation, in cluding stipends for be ing on trauma call and referral patients. He never received no tice that any adverse action was contemplated against his medical staff privileges for which he would have been entitled to a hearing.
The Doctors submitted the de claration of Danielle Dabbs, M.D., that Roth was hostile and aggressive in mee tings. He was hypercritical a nd behaved inappropriately. He interfered with her care of patients by revi ewing their charts without authorization and making suggestions for their care. He ha d authorized nurses to discuss patient management issues with him, rather th an the primary attending physician. She complained to the nurse mana ger and the intensive care unit director about Roth’s behavior, but no action was taken. On May 25, 2009, Dabbs wrote a letter to the Hospital requesting clarification of Roth’s position as “Trauma ICU Director.” She complained about Roth’s unprofessional behavior in meetings. She also complained about an incident in which Roth called to make a recommendation about a patient that Da bbs had admitted. Ro th had not seen the patient but made a care recommendation base d on a report from a nurse. He also12 reviewed her patients’ charts and accused her of failing to document them properly.
Dabbs believed Roth was overste pping his role. She had offered to provide a lecture for nurses, but Roth insisted on being the only le cturer. She requested a meeting to discuss
the issues.
The Doctors submitted a d eclaration of a nurse w ho had received unwelcome personal advances. The nurse complained to the Hospital, but Roth’s advances continued. In May 2011, the nurse was forced to take leav e due to Roth’s harassment.
Samuel submitted his declaration. He was terminated from the position of medical director of the trauma department in August 2009. His medical staff privileges were not affected. The Hospital operated pursuant to policies, procedures, and standards prohibiting disruptive conduct. Roth’s continuing disruptive conduct forced Samuel to resign from the Hospital on April 30, 2011. He resigned because Roth’s conduct rendered the Hospital an unreas onably difficult place to work , at which he felt patient care was always at risk from Roth’s disruptiv e conduct. He suffered financial loss as a result of the resignation. The Doctors also opposed the Hospital’s demurrer.

Trial Court Proceedings

The Hospital filed replies to the oppos itions to the anti-SLAPP motion and the demurrer. A hearing was held on May 21, 2 012. The trial court denied the anti-SLAPP motion. The court found the negligence cause of action arose out of the Hospital’s peer review proceedings. Therefore, the Hosp ital met its initial burden of showing the complaint arose out of a protected activ ity. However, the Doctors had shown a probability of prevailing. Th e negligence claim was based on the Hospital’s failure to act, not a communication or communicative conduct. The Hospital’s prosecutorial immunity argument was based on analogy, and the Hospital fa iled to show it was
immune as a matter of law. The Doctors alleged the Hospital affirmatively undertook a duty to prevent this type of disruptive conduct. The Hospita l failed to show there were13 administrative procedures which the Doctors could have complied w ith after the Hospital decided not to discipline Roth, so there was no failure to exhaust administrative remedies.
The court also overruled the demurrer. The Hospital filed a timely notice of appeal from the order denying the anti-SLAPP motion.

DISCUSSION

Analytical Framework

The anti-SLAPP statute provides: “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 moti on to strike, unless the court determines that the plaintiff has established that there is a probability that the plai ntiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Courts are to construe this statute “broadly” in favor of the moving party. ( Id ., subd. (a).) The trial court conducts a two-step an alysis of an anti-SLAPP motion. ( Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 11 03.) “‘First, the court decides
whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plai ntiff has demonstrated a probability of prevailing on the claim.’ ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)” ( Johnson, supra, at p. 1103.) To establish the first step, the defenda nt must show the allegedly wrongful
conduct was “in furtherance of ” the defendant’s free speech or petition rights and the
cause of action arose from the protected conduct. (§ 425.16, subd. (b)(1).) The antiSLAPP statute identifies four categories of actions that are “in furtherance of” a defendant’s free speech or petition rights. ( Id. , subd. (e); see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) As pertinent to this case, “act in furtherance of a person’s14 right of petition or free speech” includes: “( 1) any written or oral statement or writing made before a legislative, executive, or ju dicial proceeding, or any other official proceeding authorized by law, (2) any writte n 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 offi cial proceeding authorized by law, . . . 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.” (§ 425.16, subd. (e).)
If the court finds the cause of action arose from protected activity, the burden shifts to the plaintiff to s how a probability of prevailing on the claim. “[T]o establish a probability of prevailing on the claim [citation] . . . the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficien t prima facie showing of facts to sustain a favorable judgment if the evidence submitte d by the plaintiff is credited.’ [Citations.] In deciding the question of poten tial merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plai ntiff's attempt to establish evidentiary supp ort for the claim.” ( Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ [Citation.]” ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) “We review an order granting an anti-SL APP motion de novo, applying the same two-step procedure as the trial court. [Citation.] We look at the pleadings and declarations, accepting as true the evidence that favors the plaintiff and evaluating the defendant’s evidence ‘“only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.] The plaintiff’s cause of action needs to have only ‘“minimal merit” [citati on]’ to survive an anti-SLAPP motion. [Citation.]” ( Cole v.15 Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105.) “If the trial court’s decision is correct on any theory app licable to the case, we affirm the order regardless of the correctness of the ground s on which the lower court reached its conclusion.” ( Robles v. Chalilpoyil (2010) 181 Cal.A pp.4th 566, 573.)

Gravaman of the Complaint

The Hospital contends the anti-SLAPP stat ute applies to the instant complaint, because peer review proceedings are subjec t to the anti-SLAPP statute, the complaint essentially alleges the Hospital failed to discipline a disruptive doctor through the peer review process, and some allegations of the complaint refer to stat ements made in peer review proceedings. We conclude the gravam en of the complaint was that the Hospital
failed to take action to control the behaviorof a disruptive doctor, which concerns noncommunicative conduct. Therefore, th e anti-SLAPP statute does not apply.
To determine whether a claim arises from protected activity, a court must “disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or
gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute applies’ and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.] We assess the principal thrust by identifyi ng ‘[t]he allegedly wr ongful and injuryproducing conduct . . . that provides the foundation for th e claim.’ [Citation.]” ( Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272.) “The anti-SLAPP statute’s definitional focus is [on] the defendant’s activity that gives rise to his or her asserted liability—and whether th at activity constitutes protected speech or petitioning.” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) “If the core injury-produci ng conduct by the defendant th at allegedly gave rise to the plaintiff’s claim is properly described with only collatera l or incidental allusions to protected activity, then the claim does not arise out of protected speec h or petitioning activity. [Citation.]” ( Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 55 ( Young ).) “The question should be whether th e plaintiff is seeking relief from the16 defendant for its protected communicative acts . [Citation.] . . . ‘“[Y]ou have a right not to be dragged through the courts because you exercised your c onstitutional rights.”’ [Citation.]” ( Ibid .) We recognize that a peer review pro ceeding is an “official proceeding” for purposes of the anti-SLAPP statute. ( Young , supra , 210 Cal.App.4th at pp. 57-58.) However, the cause of action for negligence in this case does not “arise out of” a peer review proceeding or protected activity. ( Ibid .) “Hospitals in this state have a dual structure, consisting of an administrative governing body, which oversees the operations of the hospital, and a medical staff, which provides medical services and is generally responsible for ensuri ng that its members provide adequate medical care to patients at the hospital. In order to practice at a hospital, a physician must be granted staff privileges. Because a hospital’s decision to deny a physician staff privileges may have a significant effect on a physician’s ability to practice medicine, a physician is entitled to ce rtain procedural prot ections before such adverse action may be taken. [Citation.]” ( El-Attar v. Hollywood Presbyterian Medical
Center (2013) 56 Cal.4th 976, 983 ( El-Attar ).) “[The peer review] statute does not cont emplate a strict separation between the medical staff and the governing body as a prere quisite for a fair peer review system. . . . In the context of physician di scipline, where a peer review body, contrary to the weight of the evidence, fails to investigate or initia te disciplinary action, the governing body may direct the peer review body to do so after consultation with the peer review body ([Bus. & Prof. Code,] § 809.05, subd. (b)), and if the peer review body still fails to do so, then the governing body itself may take action ([B us. & Prof. Code,] § 809.05, subd. (c)).” ( El-Attar
, supra , 56 Cal.4th at pp. 992-993.) “In other words, the statute provides th at although the governing body must give
deference to the determinations of the medi cal staff, it may take unilateral action if warranted. This allowance for independent go verning board action furthers the ‘primary purpose of the peer review process,’ which ‘i s to protect the health and welfare of the people of California.’ [Citation.] If, for what ever reason, the medical staff of a hospital17 fails to take action against a physician who ‘“provide[s] substa ndard care or who engage[s] in professional misconduct,”’ the go verning board of the hospital serves as a fail-safe to ensure that such a practitioner is removed from the hospita l’s staff. [Citation.] The Legislature’s statutory reco gnition of the governing board’s role reflects the fact that the hospital itself is ultimately responsible for the health and safety of the patients it serves. [Citations.] ‘A hosp ital has a duty to ensure the competence of the medical staff by appropriately overseeing the peer re view process.’ [Citations.]” ( El-Attar
, supra , 56 Cal.4th at p. 993.) “A hospital itself may be responsible for negligently failing to ensure the competency of its medical staff and the adequacy of medi cal care rendered to patients at its facility. [Citation.]” ( Hongsathavij v. Queen of A ngels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1143.) In this case, the gravamen of the complaint is that the Hospital knew about Roth’s disruptive behavior and failed to take reasonable measures to control it. Roth’s behavior was so disruptive that patient care was jeopard ized. He changed or ders for patients who were not his own, violated confidentiality standards by reviewing the charts of other physicians’ patients, and spitefully refused to treat certain patients. The Hospital took certain actions in response to the complaints ab out Roth’s behavior. The Hospital replaced the trauma director to alleviate pe rsonality conflicts in the department, held a meeting to discuss conduct standards and pa ssed out a book. The Hospital reviewed the
Doctors’ concerns but concluded certain a llegations were unsuppor ted and others were not ripe for assessment. The Doctors di d not believe the Hospital’s actions were sufficient under the circumstances, and the Doct ors could not continue to work under the conditions. The actions the Hosp ital took or failed to take to control Roth’s behavior
constituted non-communicative conduct. The complaint does not arise from the Hospital’s exercise of its right of petition or free speech. It is not based on a written or
oral statement made in connec tion with an issue under consid eration or review in a peer review proceeding. The referen ces in the complaint to Roth’s statements in peer review proceedings were incidental to the cause of action, which arose out of the Hospital’s
failure to act to ensure the co mpetency of th e medical staff.18 DISPOSITION

The order denying the anti-SLAPP motion is affirmed. Respondents Christojohn Samuel, M.D., Christojohn Samuel, M.D., Inc., Walid Arnaout, M.D., and Walid Arnaout, M.D., Inc., are awarded their costs on appeal.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

KUMAR, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.