TMA Backstops Surgeon in Defamation Case
By Joey Berlin


Memorial Hermann Health System is appealing a 2017 judgment awarding a Houston cardiothoracic surgeon more than $6 million in a defamation case. The Texas Medical Association continues to support the surgeon by refuting part of the basis for the hospital’s appeal.

In a friend-of-the-court brief filed in the Texas First Court of Appeals, TMA says the trial court that found in favor of Miguel Gomez, MD, was correct when it determined that defamatory statements Memorial Hermann published about Dr. Gomez weren’t protected by a legal privilege.

Dr. Gomez sued Memorial Hermann in 2012, claiming it began a “whisper campaign” against him after he began making plans to transfer to Methodist West hospital. During Dr. Gomez’s path to victory in the lawsuit, TMA filed a brief in the Texas Supreme Court supporting Dr. Gomez in his push for disclosure of peer review documents key to the case.

Dr. Gomez won his case based on a pair of statements that Memorial Hermann allegedly published. In its appeal, the hospital argues that both statements were protected by a “qualified privilege” recognized in Texas. That privilege exists, Memorial Hermann’s appeal claims, when someone believes information affecting the public interest “requires the communication of the defamatory matter” to someone who can take action if the statement is true.

“These privileges safeguard important policy interests by protecting even false statements unless the statement was made with actual malice,” Memorial Hermann claims in its filing. It claims Dr. Gomez’s side didn’t show the required malice for either statement.

A brief for Dr. Gomez refuted those arguments, saying the privilege doesn’t apply because the jury found both statements were indeed made with actual malice.

“There is no privilege to defame private individuals simply because the statements might relate to some broad public interest such as health care, as Memorial Hermann implies,” the brief says.

TMA says in its brief that Memorial Hermann didn’t show that either defamatory statement was protected by the qualified privilege. For example, one of the statements relayed that Dr. Gomez was producing “bad quality, high mortality rates, [and] unnecessary surgeries.” Memorial Hermann’s public-interest argument there fails, TMA says, because there’s no evidence that the person who made the statement did so to someone who could take action if it were true, or that it was made out of concern for patient safety. There’s no evidence the person “brought those concerns to Memorial Hermann while Dr. Gomez was on its staff, nor is there evidence that Dr. Gomez was counseled or reprimanded for these alleged concerns … which undermines the strength of its public safety/patient care argument,” TMA wrote.

TMA also backs Dr. Gomez on the issue of actual malice. Both defamatory statements were “made knowingly or with reckless disregard for the truth,” TMA says.

TMA warns that Memorial Hermann’s use of the qualified-privilege defense puts all Texas physicians at risk.

“Permitting health care facilities to defame physicians as a means of retaliation or to handicap competition under the guise of this common-law privilege implicates serious practical concerns for Texas physicians. A physician’s reputation is of the utmost importance in the health care industry — simply, it is essential to a physician’s ability to attract patients for diagnosis and treatment, receive referrals, and earn a living,” TMA wrote. “If the court were to expand the scope of the qualified privilege in a manner that would allow health care facilities to engage in anti-competitive and retaliatory behavior, all physicians would be at risk of retaliation for making everyday patient treatment and business decisions.”

Oral argument in the case took place on Oct. 30. 

Last Updated On

November 12, 2018

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Joey Berlin

Associate Editor

(512) 370-1393

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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