Health care providers should keep in mind that virtually any suit alleging defamation or other harm from a “communication” relating to the provision of services by a health care professional will be subject to the demanding requirements of the Texas Citizen’s Participation Act (the “Act”), often called (erroneously in our view) the “Texas Anti-SLAPP Act.”
SLAPP, or “strategic lawsuits against public participation,” are usually considered to be cases brought by well-funded organizations or individuals against persons with limited resources. These SLAPP suits are designed to discourage criticism of the well-funded by forcing the less-funded to face huge legal costs in defending the suits. Many states have anti-SLAPP statutes that provide for special procedures and legal fee shifting provisions to protect the first amendment rights of those with limited resources.
In contrast, the Texas Citizen’s Participation Act is very broadly worded; for example, a large media company could rely on it if faced with an individual health care provider’s suit for defamation. Also, the Act applies even if the alleged defamation was only in private communications.
In Lippincott v. Whisenhunt, issued by the Texas Supreme Court on April 24, 2015, a certified registered nurse anesthetist (CRNA) claimed defamation and other harms due to private emails sent by two administrators of an agency that contracted with the CRNA. A lower court had held that the Act did not apply because the communications were not in a public forum. The Texas Supreme Court reversed, holding that even these private communications that formed the basis of a suit are subject to the Act because the Act applies to any communication relating to a matter of public concern. Further, the Court stated that “provision of health care services by a health care professional is a matter of public concern.”
In essence, health care providers who believe that false communications have harmed them should understand that suing for damages will be subject to the rigorous requirements of the Act. Some of those requirements include a higher standard of proof to prevail, the prospect of dismissal prior to meaningful discovery, and the potential to pay the opposing party’s legal and other defense costs, if the case is dismissed because of the Act. The Act applies to suits against single whistle blowers and also to suits against competitors or international media companies. Even if the damaging communications are all private, the Act applies if provision of health care services is at issue.
For a copy of Lippincott v. Whisenhunt click here.