“A Threat to All Texas Physicians:” TMA Backs Surgeon in Defamation Suit
By Joey Berlin Texas Medicine January 2019

Jan_19_TM_Law_Gomez

Miguel Gomez, MD’s well-publicized legal fight isn’t over yet. In its latest turn, the Texas Medical Association is still standing behind the surgeon as he fights to uphold a verdict against one of the state’s largest nonprofit hospital systems for defaming him.

Memorial Hermann Health System has appealed a 2017 judgment awarding Dr. Gomez, a Houston cardiothoracic surgeon, more than $6 million in the defamation case. In a friend-of-the-court brief filed in the Texas First Court of Appeals, TMA says the trial court was correct when it said disparaging statements Memorial Hermann published about Dr. Gomez weren’t protected by a legal privilege. 

TMA also warns about what’s at stake if the appellate court finds otherwise. Bluntly, the brief calls the implications of the hospital’s challenge “a threat to all Texas physicians” as well as their patients.

“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,” TMA told the appellate court. “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.”

Protected defamation?

Dr. Gomez sued Memorial Hermann in Harris County District Court in 2012, claiming the hospital began a “whisper campaign” against him after he began making plans to transfer from Memorial City Medical Center to Methodist West, a competing hospital that opened in 2010. The alleged whisper campaign consisted of “selective and improper dissemination” of manipulated statistical data and other misinformation, geared toward making it seem that patients were more likely to die in his care, Dr. Gomez claimed in court documents. 

On Dr. Gomez’s path to victory, he won disclosure of peer review documents that Memorial Hermann initially refused to release, and that contained information that ultimately proved to be key to his defamation case. Dr. Gomez had TMA’s support when his battle over the peer review documents wound its way to the Texas Supreme Court. (See “A Victory for the Underdog,” June 2017 Texas Medicine, pages 24-30, www.texmed.org/VictoryUnderdog.)

Dr. Gomez won the jury verdict in the defamation case based on a pair of damaging statements he argues Memorial Hermann published as part of the whisper campaign. 

As part of its appeal, the hospital argues both statements were protected by a “qualified privilege” recognized in Texas. That privilege exists, Memorial Hermann 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 argues. Actual malice means knowingly making a false statement, or making the statement with reckless disregard for whether it’s true, according to court documents. The hospital claims Dr. Gomez’s side didn’t show either statement met that standard to overcome Memorial Hermann’s privilege defense. 

“Statements in the [health care] context often implicate important public policy concerns over patient safety and are routinely protected by a qualified privilege,” Memorial Hermann says in court documents. “Reporting to hiring personnel at a hospital that there are concerns about the quality of a doctor’s care is exactly the type of statement to which the qualified privilege is designed to apply.”

Dr. Gomez refutes 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 surgeon’s brief states.

Reputations at stake

TMA says Memorial Hermann failed to prove the defamatory statements deserve protection.

For example, one of the statements claimed 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. 

“A reasonable fact-finder could easily find that these statements imply undisclosed defamatory facts leaving ‘a substantially false impression’ about Dr. Gomez,” TMA wrote. The association also backs Dr. Gomez on the issue of actual malice, saying the hospital’s statements were “made knowingly or with reckless disregard for the truth.” 

TMA warns that protecting these kinds of disparaging statements opens the door for health care facilities “to shield their anti-competitive and retaliatory behavior towards physicians under the guise of common interest and patient safety concerns.” Physicians would risk retaliation for making everyday patient treatment decisions, TMA adds.

“Personal reputation is the most important thing a physician has,” TMA wrote. “It is important to fairly balance patient-safety care concerns with the harm caused to the reputation of the physician when such concerns are false, especially when there is evidence of anti-competitive or retaliatory behavior. Unbridled use of the privilege poses a threat to all Texas physicians and their practices.”

The First Court of Appeals held oral arguments in the case on Oct. 30. A decision was pending at press time.

 

Tex Med. 2019;115(1):44-45
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Last Updated On

January 02, 2019

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Joey Berlin

Associate Editor

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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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