July 14, 2020

Volume X, Number 196

July 14, 2020

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July 13, 2020

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Text Messaging and Other Communications During Peer Review Process Suggest Improper Motivation and Create Genuine Dispute of Material Facts, Precluding Summary Judgement

A recent decision by the United States District Court for the Southern District of California highlights the role and impact verbal and written communications — including text messages — may have in litigation resulting from lost job opportunities or an unfavorable peer review determination.

In July 2016, Dr. Jason Toranto, a pediatric plastic surgeon and craniofacial surgeon, filed a lawsuit against various defendants alleging that they engaged in illegal, retaliatory, defamatory, and anticompetitive conduct against him.1 Dr. Toranto alleged that the conduct resulted in both a lost job opportunity and denial of privileges following, what he considered to be, a “sham peer review” process.2 Dr. Toranto asserted various causes of action, including violations of the Sherman Antitrust Act,3 defamation, and tortious interference with prospective economic advantage. Among the named defendants were Children’s Hospital of Orange County (“CHOC”), Children’s Hospital of Orange County Medical Staff (“CHOC Medical Staff”), Dr. Amanda Gosman (“Dr. Gosman”), Rady Children’s Hospital-San Diego (“Rady’s”), and Dr. Daniel Jaffurs (“Dr. Jaffurs”) (collectively, “Defendants”).

In summary, Dr. Toranto alleged that Dr. Jaffurs, Dr. Toranto’s former colleague, made false and defamatory statements about him, initially resulting in the denial of an employment opportunity at CHOC.4 Dr. Toranto claimed that even after he moved to a different city, Dr. Jaffurs, in concert with Dr. Gosman (Chief of Plastic Surgery at Rady Children’s Specialists of San Diego and University of California San Diego), continued making false and defamatory statements about him to various facilities, including Rady’s.5 Dr. Toranto alleged that another physician, the Chief Medical Officer (“CMO”) at CHOC, also made false statements about him to Rady’s.6 Dr. Toranto asserted that Rady’s ultimately conducted a sham peer review process, denying his application without speaking to or meeting with him and otherwise failed to follow an objective peer review process.7

Defendants filed motions for summary judgment. Dr. Gosman and Rady’s argued that they were entitled to summary judgment on the antitrust claims because Dr. Toranto failed to demonstrate they were competing in the same relevant market or the market in which Dr. Toranto claimed was being monopolized.8 They further argued there was no evidence their statements about Dr. Toranto were false or defamatory, that they did not act with malice or fraud, that a diligent and thorough investigation regarding Dr. Toranto’s application for privileges had taken place, and that their statements were protected under the Health Care Quality Improvement Act and California law because they were made during professional review activities.9

The court rejected their arguments, concluding that genuine issues of material fact existed on all applicable causes of action.10 In support, the court referenced numerous communications in the record involving Dr. Jaffurs and Dr. Gosman, the majority of which appeared to have been designed to prevent Dr. Toranto from obtaining privileges at Rady’s, including:

Dr. Jaffurs: “I did everything I could to help [Dr. Gosman] with keeping [Dr. Toranto] away.”11

Dr. Gosman to Dr. Jaffurs: “Ugh ok thanks so much for all your help. I don’t know how to stop him[.]”12

Dr. Jaffurs: “Did [Dr. Gosman] manage to keep [Dr. Toranto] out?”13

Dr. Gosman to Dr. Jaffurs: “U called him a little [expletive] because he clearly is one[.]”14

Dr. Gosman telling Dr. Toranto that there was no need for another craniofacial surgeon at Rady’s when Rady’s internal documents demonstrated otherwise.15

CHOC and the CHOC Medical Staff argued, inter alia, that: (1) Dr. Toranto’s claims were based specifically on the conduct of Dr. Jaffurs, and they were not liable for Dr. Jaffurs’ conduct under a respondeat superior theory as Dr. Jaffurs was not an agent of CHOC; (2) they were civilly immune under federal and state law for their participation in peer review and credentialing proceedings and for communications made in the course of those proceedings; and (3) there was no evidence of a conspiracy or that CHOC was in competition with Dr. Toranto.16

The court rejected these arguments and, again, found there were genuine issues of material fact suitable for trial on all applicable issues, including civil immunities.17 The court found that Dr. Toranto had sufficiently set forth specific instances demonstrating that both Dr. Jaffurs and the CHOC CMO had held themselves out as agents of CHOC, that Rady’s had performed a sham peer review, and that Dr. Jaffurs either had actual knowledge that his statements were false or potentially acted with malice.18

Dr. Jaffurs argued that, similar to his co-defendants, he was entitled to civil immunity under federal and state law and that Dr. Toranto had waived his right to sue Dr. Jaffurs when Dr. Toranto signed a standard release or waiver with his application for privileges.19 The waiver stated that Dr. Toranto was releasing from liability “any and all individuals and organizations who provide information to the Hospital or its Medical Staff concerning [his] professional competence, ethics, character and other qualifications for staff appointment and clinical privileges[.]”20 Dr. Jaffurs further argued there was no evidence he acted in concert with other defendants to harm competition, no evidence he engaged in intentional wrongdoing or acted with malice, and no evidence that his statements were false.21 Dr. Jaffurs asserted that his statements were his personal opinions and that he was expressing his concerns about Dr. Toranto’s clinical care.22

The court also denied Dr. Jaffurs’ motion. The court concluded that Dr. Jaffurs’ motivation in making the statements about Dr. Toranto — and the impact his motivation might have on applicable civil immunities — were triable genuine disputes of material fact that precluded the entry of summary judgment.23

The Defendants’ arguments were not helped by the text messages available in black and white and read by the judge. All persons participating in peer review should be aware that all written communications, including text messages, which are commonly and often quickly exchanged, may ultimately be evidence reviewed by a judge or jury.

1 Toranto v. Jaffurs, et al., No. 16CV1709-JAH (NLS), 2019 WL 4416137 (S.D. Cal September 13, 2019).

2 Id. at *1.

3 15 U.S.C. §§ 1-7.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id. at ** 5-6.

9 Id. at ** 5-7.

10 Id. at * 7.

11 Id. at * 6.

12 Id.

13 Id.

14 Id.

15 Id. at * 7.

16 Id. at ** 3-5.

17 Id. at * 5.

18 Id.

19 Id. at * 7.

20 Id.

21 Id. at * 8.

22 Id.

23 Id.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 14


About this Author

Rebecca Lindstrom Healthcare Attorney Polsinelli

Rebecca Lindstrom provides comprehensive representation and strategic counsel to a variety of health care providers, including hospitals and health systems, physician and specialty practice groups, individual health care professionals, home health agencies, and long-term care providers. Rebecca has substantial experience representing health care clients in all stages of the litigation process.  Her extensive litigation experience allows her to approach complex legal issues pragmatically, whether in the courtroom or when counseling clients.  Rebecca also routinely provides counsel to...