Hospital’s Defamatory Statements About Physician on Issues of Public Interest are Protected Under anti-SLAPP Laws

In Yang v. Tenet Healthcare, Inc. (May 8, 2020, E071693) the Court of Appeal, Fourth District, Division Two (Riverside), reversed the trial court’s ruling which denied Defendant’s Motion to Strike (anti-SLAPP motion), and held that allegedly defamatory statements made by a hospital and its staff, to the public as well as other medical professionals which related to Plaintiff’s qualifications, competence, and medical ethics as a licensed physician, qualified as a protected activity because the statements were made in connection with an issue of public interest.

In Yang, the plaintiff, a licensed physician sued a hospital, the hospital’s medical staff, and individual doctors (collectively “Defendants”) for defamation and nine other causes of action. Plaintiff alleged that Defendants repeatedly made numerous defamatory statements to healthcare providers, medical practices, Plaintiff’s patients, and members of the general public, including: that Plaintiff did not have privileges for certain procedures; that Plaintiff rendered care below the applicable standards; that Plaintiff’s behavior and medical ethics were below applicable standards; that Plaintiff was not qualified or competent to practice her specialties; and that Plaintiff was dangerous to her patients, and to employees and members of the hospital’s medical staff; and that Plaintiff was under investigation. The trial court denied Defendants’ anti-SLAPP motion, finding that the cause of action was not based on statements made in connection with a peer review proceeding (Code of Civil Procedure § 426.16(e)(2); that it did not arise from the exercise of free speech rights about a matter of public interest (Code of Civil Procedure § 426.16(e)(4); and that Plaintiff established a probability of prevailing on the merits.

On appeal, the court held that Defendants’ statements were protected activity pursuant to Code of Civil Procedure section 425.16(e)(4) because they were made in furtherance of their right to free speech in connection with an issue of public interest, that Plaintiff failed to demonstrate a probability of prevailing on the merits, and therefore reversed the trial court’s ruling which denied Defendants’ anti-SLAPP motion.

In general, for a defendant to prevail on a Motion to Strike pursuant to Code of Civil Procedure section 425.16, et seq., it must show that the defamatory speech arose from an act in furtherance of the right of petition or free speech, “in connection with a public issue,” that the act or conduct from which plaintiff’s claims arise falls within one of four categories provided in subdivision (e) of Section 425.16; and that the plaintiff has not established “a probability” of prevailing on the claim.

In its analysis of the applicability of Section 425.16(e)(4), the court relied upon a two-step inquiry outlined in Inc. v. DoubleVerify, Inc. (2019) 7 Cal.5th 133 (FilmOn), which provides that a court must consider the context as well as the content of an allegedly defamatory statement when determining whether or not a statement is of public interest or is a public issue. The public issue is implicated by the content of the speech, whereas the context of the speech is examined in order to determine what functional relationship exists between the speech and the public conversation regarding the matter of public interest.

The court, in step one of the FilmOn analysis found that the statements made by Defendants, which the court generally described as addressing Plaintiff’s qualifications, competence, and professional ethics, were a public issue as hospitals have a “primary responsibility for monitoring the professional conduct of physicians through their peer review committees,” and that members of the public, as consumers, have an interest in being informed of issues concerning particular doctors and facilities.

In addressing the second step – the functional relationship of the statements – the court stated that the speech must in some manner itself contribute to the public debate, by participating in or furthering the discourse that makes an issue one of public interest. The court found that Defendants, by communicating statements to the public, and not just to discrete doctors furthered the public discourse on that matter, thereby satisfying the second step of the FilmOn analysis as to Defendants’ statements to the general public. The court also found that Defendants’ statements in the form of instructions and recommendations to doctors to not refer patients to Plaintiff also contributed to the public discourse. In its analysis, the court likened these private statements by Defendants to statements made by a third party to aid and protect consumers, the latter of which the court stated have consistently been found to be a protected activity as a matter of public interest. Therefore, the court concluded, Defendants’ private statements to doctors also satisfied the second step of the FilmOn analysis.

Lastly, the court then disposed of the question of Plaintiff’s probability of success on the merits by finding that Plaintiff’s claim was time-barred by the one-year statute of limitations for defamation. Plaintiff’s complaint, as well as the affidavits submitted in opposition to Defendants’ motion alleged that Defendants’ statements occurred no later than 2016, and that the complaint and affidavits did not sufficiently allege any ongoing statements or statements made within a one-year period of the filing of Plaintiff’s complaint in June 2018.

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May 14, 2020