A surgeon who sued an anesthesiologist for allegedly making racist remarks about Hispanic patients has lost his bid to recoup damages for "emotional distress," as a California appeals court found no evidence that the words, uttered during a meeting, translated to discriminatory actions.

In a lawsuit filed against anesthesiologist Clifton Van Putten, MD, St. Agnes Medical Center in Fresno, Calif., and the facility's chief of medical staff, ophthalmologist David Kaye, MD, accused Dr. Van Putten of making derogatory remarks about his Hispanic patients during a root cause analysis meeting. The meeting was called in response to a wrong-site surgery event in which Dr. Van Putten had anesthetized the wrong eye of one of the Dr. Kaye's Hispanic cataract surgery patients.

Court documents show that during the meeting, in which both physicians, several hospital administrators and several nurses were present, Dr. Van Putten allegedly made racist comments like, "Doing surgeries on Dr. Kaye's Hispanic patients is like doing veterinary surgery," and "You can't even talk to them so who cares."

Dr. Kaye claimed that he objected to the statements, pointed out that they were in violation of hospital policy and federal law, and left the meeting when no apology was offered. He sent a complaint letter to Medical Chief of Staff Roydon Steinke, MD, who later told Dr. Kaye that he spoke with the anesthesiologist but that no action would be taken against him.

In his lawsuit, Dr. Kaye claimed that the derogatory statements, which he said caused him "emotional distress," were directed toward him and therefore he was entitled to damages under the Unruh Civil Rights Act. He blamed Dr. Steinke and the hospital for failing to take action against the doctor and for failing to properly train and supervise him. He further argued that he'd no longer be able to care for Hispanic patients at the hospital because of what Dr. Van Putten had said.

The defendants in that suit filed an anti-SLAPP (strategic lawsuit against public participation) motion, which claimed that Dr. Kaye's complaint arose from protected statements made during an "official proceeding authorized by law." A trial court agreed that the alleged statements were protected and granted the anesthesiologist and hospital's motion to dismiss the complaint.

Last month, the California Court of Appeal, Fifth District, upheld that ruling, finding that the root cause analysis meeting qualified as a "peer review" proceeding protected under the anti-SLAPP statute, and that while the alleged racist comments were "objectionable," Dr. Kaye had failed to present evidence showing that either Dr. Van Putten or the hospital had actively discriminated against him or his patients.

In an e-mailed statement. Dr. Kaye says he was "shocked and dismayed that no one representing St. Agnes at this meeting recognized the horrific racially discriminatory conduct of this doctor against [Dr. Kaye's] minority Hispanic patients" and that he disagrees with the court's ruling that Dr. Van Putten's speech was protected. "Discriminatory conduct and speech in the workplace is prohibited by law," he writes. "As such, they should not be considered protected speech in a hospital setting!" The attorney representing Dr. Van Putten and St. Agnes Medical Center did not return calls seeking their comments for this article.

Irene Tsikitas