Armin v. Riverside Community Hospital

Armin v. Riverside Community Hospital (CA4/3 G052125, filed 11/17/16, mod. 12/19/16) Hospital Peer Review & Whistleblower Statute



On November 18, 2016, the Fenton Law Group moved to modify the caption of our opinion filed November 16, 2016, to delete the reference to the law firm of Fenton Nelson, on the ground that when appellant Sean Armin’s opening brief was filed, Fenton Nelson “had either already been dissolved, or was in the process of being dissolved.”  We are unable to grant this request because the California Style Manual states, in section 5:15, that if a law firm has appeared for a client on appeal, it should be listed in the caption.  In the present case, Appellant’s opening brief, filed March 19, 2014, was filed by Fenton Nelson, LLP.

 

On December 1, 2016, defendants Riverside Community Hospital and defendant and Medical Staff of Riverside Community Hospital (the Hospital) filed a petition for rehearing.  However, on December 12, 2016, the attorneys for the various parties in the case, including the Hospital, Armin and the individual doctors, filed a notice of settlement.  And on that same day, attorneys for the Hospital also filed a withdrawal of the request for rehearing.  The Hospital’s withdrawal request, however, states that the Hospital does not withdraw its “request made in the Petition for Rehearing that the identified sections of the Opinion be decertified for publication, or ordered depublished, for reasons stated in the Petition for Rehearing.” 

          

In its now withdrawn petition for rehearing the Hospital identifies an error on page 3 of the slip opinion, namely “FEHA” as the opinion now reads, should instead be “Unruh Civil Rights Act.”  Independent of the withdrawal of the petition, we hereby modify the slip opinion on page 3, second full paragraph, first sentence, to substitute the words “Unruh Civil Rights Act” for “FEHA.”

          

That leaves the question of the Hospital’s existing requests for decertification of “identified sections” of the opinion.  The problem here is that the Hospital does not – at least not with precision – identify those parts of the slip opinion that might readily be excluded from an otherwise published opinion without directly affecting the judgment that Armin’s Health and Safety Code section 1278.5 (section 1278.5) action against the Hospital might proceed as against the anti-SLAPP motion filed by the Hospital.  The one part most easily separated from the balance of the opinion, part III.B., involving Armin’s section 1278.5 claims against individual physicians and holding those individual physicians are immune from Armin’s section 1278.5 claims, is not challenged in the December 1, 2016 petition for rehearing.

 

Functionally, then, it appears that the Hospital wants to maintain its petition for rehearing and withdraw it too.  Most of the petition for rehearing consists not of a challenge to the main holding of the opinion – that administrative exhaustion of peer review proceedings is not a prerequisite to a section 1278.5 action – but rather consists of arguments that are fact-specific and peculiar to this now-settled action.  Because these arguments are record-specific, we must conclude that by withdrawing its request for rehearing, these arguments are being waived.

          

However, the Hospital’s petition has pointed out another area in which the opinion might be improved.  In light of the Hospital’s (now withdrawn) petition for rehearing, we hereby modify the opinion in the following particular:

          

On page 22 of the slip opinion, in the first paragraph of section 4, after the sentence ending with the words “whistleblowing claim is based on his December 2011 conversation with the hospital’s COO in which he complained about Douglas and Clark’s lackadaisical approach to urgent care” insert the following new footnote (and renumber the remaining footnotes accordingly):

          

“Under subdivision (i) of section 1278.5, a ‘health care facility’ – and that includes the Hospital here – is defined to include both ‘the facility’s administrative personnel’ such as the hospital’s COO here, and its ‘medical staff.’”  This modification does not affect the judgment.

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