Memorial Hermann Health System v. Samia Khalil, M.D. ( 2017 )

Opinion issued August 8, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00512-CV
———————————
MEMORIAL HERMANN HEALTH SYSTEM, Appellant
V.
SAMIA KHALIL, M.D., Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2015-77483
MEMORANDUM OPINION ON REHEARING
On March 28, 2017, we issued a memorandum opinion in this case. Samia
Khalil filed a motion for rehearing. We deny the motion but withdraw our
memorandum opinion and issue this memorandum opinion in its place. Our
disposition of the case remains unchanged.
After 40 years of employment at Memorial Hermann hospital, Dr. Samia
Khalil sued Memorial Hermann Health System for defamation, tortious
interference with an existing contract, conspiracy, and intentional infliction of
emotional distress. Khalil, age 77, also sued for age discrimination. Memorial
Hermann sought to dismiss several of her claims under summary dismissal
procedures found in the Texas Citizens Participation Act (TCPA).1 In turn, Khalil
filed a TCPA motion to dismiss Memorial Hermann’s TCPA motion. Both motions
were denied by operation of law.
In two issues, Memorial Hermann argues that it was entitled to dismissal of
Khalil’s challenged claims. Through a cross-appeal, Khalil argues that, while
Memorial Hermann’s motion was properly denied, her TCPA counter-motion was
denied in error and that she is, therefore, entitled to recover attorney’s fees.
We reverse the denial of Memorial Hermann’s motion, affirm the denial of
Khalil’s motion, and remand for further proceedings.
Background
Dr. Samia Khalil worked as a pediatric anesthesiologist at Memorial
Hermann hospital for four decades. Along with those duties, she taught pediatric
anesthesiology at The University of Texas Health Science Center at Houston (UT
1
See TEX. CIV. PRAC. & REM. CODE § 27.001–.011 (Chapter 27 is titled, “Actions
Involving the Exercise of Certain Constitutional Rights.”).
2
Health). UT Health is not a defendant in Khalil’s lawsuit. According to her
petition, Dr. Khalil was approached in 2014 by Dr. Carin Hagberg—who was both
the UT Health chair of the anesthesia department and the Memorial Hermann chief
of anesthesiology—about “vague complaints” made to “hospital administration”
about Dr. Khalil. Hagberg and Khalil agreed that Khalil would enter into a UT
Health corrective action plan.
The corrective action plan was not completed before the deadline for Khalil
to submit a complete application for recredentialing at Memorial Hermann. Citing
her failure to submit a complete application by the deadline—versus a
determination that she was not competent for recredentialing—Memorial Hermann
announced that Khalil’s credentials had expired, which meant that she was no
longer able to practice medicine there. Khalil sued Memorial Hermann.
Below is a more detailed account of the events leading up to Khalil’s
departure from Memorial Hermann and of the Memorial Hermann and UT Health
documents created during those two entities’ investigations into Khalil’s
competence, which she submitted to the trial court.
A. Khalil’s corrective action plan and the investigations into her
competence
Due to “anecdotal” statements questioning Khalil’s patient care, compliance
with hospital procedures, and collegiality, Hagberg approached Khalil in 2014 to
establish a corrective action plan. The corrective action plan was entered between
3
Khalil and UT Health, not Memorial Hermann. It required Khalil to be assessed by
UT Health’s internal Employee Assistance Program, follow any EAP
recommendations, participate in a chart review of her recent cases, and comply
with applicable standards and guidelines. UT Health prohibited Khalil from
“faculty clinical care” of patients while she was taking action pursuant to the
corrective action plan and it was assessing her EAP compliance and chart audit.
The UT Health corrective action plan began just a few weeks before Khalil’s
Memorial Hermann recredentialing deadline: December 31, 2014.
UT Health informed Memorial Hermann’s credentials committee chair,
Mark Farnie, of Khalil’s corrective action plan. As the December 2014 deadline
drew near, Memorial Hermann informed Khalil that she would be given only a
limited, 13-month renewal2 because of the on-going plan and because the hospital
wanted to engage her “in quality and patient safety activities and to promote
collegial working relationships in the clinical areas.” Therefore, her credentials
would need to be renewed again or they would expire at the end of January 2016.
Khalil met with a UT Health EAP representative, as required by her
corrective action plan. That representative recommended that Khalil undergo an
outside assessment. Khalil refused to participate, stating in a letter dated November
30, 2015 that the process was “flawed by design and intrinsically unfair.” Khalil
2
It was customary for any renewal of credentials to have a term of two years.
4
eventually agreed to participate in an outside assessment, but that assessment was
not completed before the January 2016 recredentialing deadline. As a result, she
did not have a completed application by the deadline. Memorial Hermann then
declared that Khalil’s credentials had expired because she failed to complete her
renewal application by the deadline.
Khalil challenges Memorial Hermann’s characterization and asserts that
Memorial Hermann’s intentional delay tactics caused her to not meet the deadlines.
Khalil also asserts that Memorial Hermann coordinated with UT Health to have
UT Health remove her from clinical care, which allowed Memorial Hermann to
avoid the procedural protections found in its medical staff bylaws. She asserts that
she was denied notice, hearing, and due process. Khalil describes the chain of
events as “orchestrated” and claims the two entities placed her in a “catch-22” that
prevented the renewal of her credentials.
Just before her credentials expired, Khalil sued Memorial Hermann for
various claims, including defamation, based on statements made about her during
Memorial Hermann’s and UT Health’s investigations into her competence,
including privileged peer-review statements made by various committees.
B. Statements made about the on-going investigations into Khalil’s
competence
Some of the statements underlying Khalil’s suit are communications
confirming that UT Health had placed limitations on Khalil’s clinical care and
5
addressing whether those limitations prevented her from continuing with her
medical research activities. Other communications directly address Khalil’s
competence. For example, in a December 8, 2015 letter to Khalil from Memorial
Hermann’s chief of staff, Dr. James McCarthy, which is marked as a peer-review
document, Dr. McCarthy states that Memorial Hermann’s medical-executive
committee reviewed the quality-review committee’s findings and “agreed” that
Khalil’s clinical practice “represents the potential of imminent patient harm” and,
therefore, decided that she was “not to care for patients at this hospital at this
time.”
The Memorial Hermann chief of staff’s letter listed specific negative
findings, including that Khalil appeared unwilling to change her historical
approach, did not communicate well with team members, generally expressed a
rigidity unsuitable to a surgical-team environment, had not read patient records or
adequately communicated with surgeons on occasion, and “demonstrated lack of
insight (and basic knowledge).” The letter then reiterated the committee’s
conclusion that Khalil’s practice creates “the potential of imminent patient harm
and will not be permitted if [she] attempt[s] to exercise clinical privileges.”
Finally, the letter informed Khalil that the hospital’s medical-executive committee
and “[e]veryone involved” was “trying to promote patient safety and . . . acting in
good faith to that end.”
6
C. Khalil sues and Memorial Hermann seeks dismissal
Based on the letter from Memorial Hermann’s chief of staff as well as other
communications, Khalil sued Memorial Hermann for defamation and other claims.
Memorial Hermann answered by asserting a general denial and pleading the
affirmative defenses of qualified common-law privilege and statutory immunity,
citing various federal and state statutes related to peer-review protections. See
42 U.S.C. §§ 11101–11152; TEX. OCC. CODE § 160.010; TEX. HEALTH & SAFETY
CODE § 161.033.
Memorial Hermann also moved to dismiss several of Khalil’s claims,
arguing that they infringed on its constitutional right to free speech and its statutory
right to free speech under the TCPA. Khalil amended her petition to assert, as an
affirmative defense, that the TCPA is unconstitutional as applied to her because its
application would deprive her of “her right to sue for reputational torts that are
expressly protected under the Texas Constitution.” She also filed a TCPA motion
to dismiss Memorial Hermann’s TCPA motion.
A hearing was held on the competing motions on May 6, 2016, thereby
establishing June 6 as the deadline for the trial court to issue a ruling on the
motions. See TEX. CIV. PRAC. & REM. CODE § 27.005(a). No ruling issued by that
date; therefore, both motions were denied by operation of law. Id. § 27.008(a).
7
Memorial Hermann appeals the denial of its motion. Through a cross-appeal,
Khalil appeals the denial of her motion as well.
Texas Citizens Participation Act
Memorial Hermann and Khalil filed competing motions to dismiss under the
Texas Citizens Participation Act. Id. § 27.001–.011. The TCPA is found in Chapter
27 of the Civil Practice and Remedies Code, which is titled, “Actions Involving the
Exercise of Certain Constitutional Rights.” The TCPA’s purpose is to protect
“citizens who petition or speak on matters of public concern from retaliatory
lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579,
584 (Tex. 2015). It does so by creating “a new set of procedural mechanisms
through which a litigant may require, by motion, a threshold testing of the merits
of legal proceedings or filings that are deemed to implicate the expressive interests
protected by the statute, with the remedies of expedited dismissal, cost-shifting,
and sanctions for any found wanting.” Serafine v. Blunt, 466 S.W.3d 352, 369
(Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring); see TEX. CIV.
PRAC. & REM. CODE § 27.003–.009.
A. TCPA’s dismissal provision and relevant statutory definitions
Section 27.003 of the TCPA contains the dismissal provision both parties
have invoked in this suit. It provides that a party may file a motion to dismiss a
legal action against it when the legal action “is based on, relates to, or is in
8
response to [that] party’s exercise of” one of three rights: free speech, petition, or
association. TEX. CIV. PRAC. & REM. CODE § 27.003(a). The Legislature defined
“[l]egal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or
counterclaim or any other judicial pleading or filing that requests legal or equitable
relief.” Id. § 27.001(6). The Legislature also statutorily defined the three sets of
rights protected by TCPA summary-dismissal procedures, including a statutorily
defined right of free speech. Id. § 27.001(2)–(4); id. § 27.001(3) (“Exercise of the
right of free speech means a communication made in connection with a matter of
public concern.”) (internal quotation marks omitted).
B. TCPA’s shifting burdens of proof
When a movant seeks dismissal under the TCPA, the movant has the initial
burden to show “by a preponderance of the evidence” that the nonmovant has
asserted a “legal action” that is “based on, relates to, or is in response to” the
movant’s exercise of one of the three rights delineated in the statute. Id.
§ 27.005(b). If the movant meets that burden, the burden shifts to the nonmovant to
establish “by clear and specific evidence” a “prima facie case for each essential
element of the claim in question.” Id. § 27.005(c). Dismissal may be required,
“[n]otwithstanding” the nonmovant’s evidence proffered to meet its burden, if the
movant establishes “by a preponderance of the evidence each essential element of
a valid defense to the nonmovant’s claim.” Id. § 27.005(d).
9
The trial court considers the pleadings and any supporting and opposing
affidavits to evaluate whether each party has met its burden. Id. § 27.006(a); In re
Lipsky, 460 S.W.3d at 587.3
Standard of Review
We review de novo the denial of a TCPA motion to dismiss. Better Bus.
Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353
(Tex. App.—Houston [1st Dist.] 2013, pet. denied); Newspaper Holdings, Inc. v.
Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied). This de novo standard applies whether the motion is
denied by written order or by operation of law. See Avila v. Larrea, 394 S.W.3d
646, 652–53, 656 (Tex. App.—Dallas 2012, pet. denied). We consider the parties’
pleadings, affidavits, and any discovery that might have been authorized by the
trial court on the issues. TEX. CIV. PRAC. & REM. CODE § 27.006. We view the
evidence in the light most favorable to the nonmovant. Cheniere Energy, Inc. v.
Lotfi, 449 S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.);
Serafine, 466 S.W.3d at 369 n.28.
Likewise, we review de novo issues of statutory construction. Molinet v.
Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). When construing a statute, our
3
The TCPA contains a mechanism by which the trial court can permit limited
discovery, but that procedure was not invoked in this suit. See TEX. CIV. PRAC. &
REM. CODE § 27.006(b).
10
objective is to give effect to legislative intent, which requires us to look first to the
statute’s plain language. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). If
that language is unambiguous, we interpret the statute according to its plain
meaning. Id.; see Molinet, 356 S.W.3d at 411.
With regard to Memorial Hermann’s denied TCPA motion, we must
determine whether Khalil asserted a legal action that is based on, relates to, or is in
response to Memorial Hermann’s exercise of its right of free speech as defined in
the TCPA, and, if so, whether she has established a prima facie case for each
essential element of each of her claims that are the subject of the dismissal motion.
We must also consider whether Memorial Hermann, nonetheless, has established
each essential element of a valid defense to those claims.
Khalil’s TCPA motion to dismiss Memorial Hermann’s motion requests the
same analysis. One step would be to determine whether Memorial Hermann has
met its burden to establish a prima facie case for dismissal of Khalil’s claims. See
TEX. CIV. PRAC. & REM. CODE § 27.005(c). Because evaluating Memorial
Hermann’s dismissal motion would be a necessary step to disposing of Khalil’s
motion, we begin with Memorial Hermann’s motion.
Memorial Hermann’s Motion to Dismiss
We begin with the threshold question of whether Memorial Hermann met its
burden under the TCPA to establish by a preponderance of the evidence that Khalil
11
brought a legal action that “is based on, relates to, or is in response to” its exercise
of the right of free speech, as defined in the TCPA.
A. Whether Memorial Hermann satisfied its burden
The TCPA defines the “[e]xercise of the right of free speech” as a
“communication made in connection with a matter of public concern.” Id.
§ 27.001(3). A “[c]ommunication includes the making or submitting of a statement
or document in any form or medium, including oral, visual, written, audiovisual, or
electronic.” Id. § 27.001(1). It includes both private and public communications.
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). A “[m]atter of public
concern” is defined to include, among other things, an issue related to “health or
safety.” TEX. CIV. PRAC. & REM. CODE § 27.001(7)(A).
The letter to Khalil from Memorial Hermann’s chief of staff criticized her
past job performance, concluded that her “clinical practice represents the potential
of imminent patient harm,” and directed that she be prohibited from engaging in
clinical duties for the stated purpose of “promot[ing] patient safety.”
Whether a privately-employed person satisfactorily performs her job—while
an important issue to the employer—is generally not a matter that would be
considered a public concern for First Amendment purposes. See Bates v. Dallas
Indep. Sch. Dist., 952 S.W.2d 543, 550 (Tex. App.—Dallas 1997, writ denied). But
the TCPA defines “[m]atter of public concern” to include issues related to “health
12
or safety,” and statements concerning a healthcare professional’s competence
relate to matters of public concern under the TCPA. See Lippincott, 462 S.W.3d at
510.
In Lippincott, the Texas Supreme Court held that internal emails concerning
whether a nurse anesthetist properly provided medical services to patients were
communications made in connection with a matter of public concern. Id. at 510.
The nurse contracted to provide anesthesiology services at a surgical center. Id. at
508. Two surgical-center administrators allegedly made disparaging comments
about him. Id. One of the administrators sent emails summarizing reports he had
received, and in some cases investigated, that the nurse had endangered patients.
Id. at 508–09. The administrator’s emails asserted that the nurse “failed to provide
adequate coverage for pediatric cases,” administered a “different narcotic than was
ordered prior to pre-op or patient consent being completed,” falsified scrub tech
records, and violated the company’s sterile protocol policy. Id. at 510.
The nurse sued the administrators for defamation, tortious interference with
business relations, and conspiracy to interfere in business relations—the same
types of claims Khalil asserts. Id. at 509. The defendants moved to dismiss the
nurse’s claims under the TCPA, arguing that the allegedly defamatory emails
evidenced communications about matters of public concern. Id.
13
The Texas Supreme Court held that the provision of medical services by this
healthcare professional constituted a matter of public concern and, as a result, the
communications4 made about his competence were made in connection with a
matter of public concern for TCPA applicability purposes. Id. at 510; see
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017) (per
curiam) (relying on text of TCPA to hold that statute requires “only that the
defendant’s statements are ‘in connection with’ ‘issue[s] related to’ health, safety,
environmental, economic, and other identified matters of public concern chosen by
the Legislature,” and reversing appellate court’s holding that relationship had to be
more than “tangential”).
Memorial Hermann relies heavily on the Lippincott opinion, in part because
of the factual similarities between the two cases. In both cases, the nonmovant
provided anesthesiology services to surgical patients and the challenged
communications were made between health-facility staff members about the
healthcare professional’s competence. In Lippincott, the Court held that the
4
The Court did not evaluate whether each statement about Whisenhunt, when
viewed independently of the other statements, addressed a matter of public
concern. Instead, having found that at least one statement was a communication
made in connection with a matter of public concern, the Court determined that
Whisenhunt’s suit was in response to the exercise of the right of free speech, as
defined in the TCPA, and that the TCPA applied. Lippincott v. Whisenhunt, 462
S.W.3d 507, 510 (Tex. 2015); but see Combined Law Enforcement Ass’n of Tex. v.
Sheffield, No. 03-13-00105-CV, 2014 WL 411672, at *5 (Tex. App.—Austin Jan.
31, 2014, pet. denied) (mem. op.) (analyzing each communication separately to
determine if TCPA applied).
14
communications addressed a matter of public concern and fell within the purview
of the TCPA. Id. at 510. Memorial Hermann seeks the same result here.
We agree that Memorial Hermann’s communications closely resemble the
statements held to address matters of public concern in Lippincott. The
communications include a letter from Memorial Hermann’s chief of staff listing
various peer-review and credentialing committee findings, including that Khalil
failed to read patient records, communicate with surgeons, demonstrate “insight”
or “basic knowledge,” recognize serious symptoms, and acknowledge incorrect
dosing. It further stated that Khalil’s “clinical practice represents the potential of
imminent patient harm,” which required that she be prohibited from engaging in
clinical duties so as “to promote patient safety.”
We conclude that this Memorial Hermann communication regarding
Khalil’s competence was a communication made in connection with an issue
related to health or safety, and thus, a matter of public concern. See TEX. CIV.
PRAC. & REM. CODE § 27.001(3), (7)(A). Khalil’s legal action, in which she sued
Memorial Hermann for defamation, fraud, and other torts, was “in response to” this
and five other communications addressing her competence. See id. § 27.003(a).
Accordingly, Memorial Hermann has met its initial burden of invoking the TCPA.
See id. § 27.003(a), .005(b); see also Coleman, 512 S.W.3d at 901-02; Lippincott,
15
462 S.W.3d at 510 (considering subject of internal emails collectively to conclude
that TCPA applied).
We turn next to whether Khalil met her burden, after it shifted to her, to
establish a prima facie case by clear and specific evidence for each essential
element of each of her claims that were subject to dismissal. See TEX. CIV. PRAC. &
REM. CODE § 27.005(c).
B. Whether Khalil satisfied her burden
Memorial Hermann sought dismissal of six of Khalil’s claims: defamation,
tortious interference, fraud, conspiracy, “assisting or encouraging,” and intentional
infliction of emotional distress. We consider defamation first.
1. Defamation
“Defamation is generally defined as the invasion of a person’s interest in her
reputation and good name.” Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013).
Defamatory statements are those that tend to (1) “injure a living person’s
reputation and thereby expose the person to public hatred, contempt or ridicule, or
financial injury” or (2) “impeach any person’s honesty, integrity, virtue, or
reputation.” TEX. CIV. PRAC. & REM. CODE § 73.001; see Double Diamond, Inc. v.
Van Tyne, 109 S.W.3d 848, 854 (Tex. App.—Dallas 2003, no pet.). The elements
of a defamation claim include “(1) the publication of a false statement of fact to a
third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite
16
degree of fault, and (4) damages, in some cases.” In re Lipsky, 460 S.W.3d at 593.
A statement is considered “published” when it is communicated to a third person
who is capable of understanding its defamatory meaning and in such a way that the
person did understand its defamatory meaning. Thomas-Smith v. Mackin, 238
S.W.3d 503, 507 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Statements are
considered published even if they are made to employees and managers in the
same company. Stephens v. Delhi Gas Pipeline Corp., 924 S.W.2d 765, 769 (Tex.
App.—Texarkana 1996, writ denied).
a. “Requisite degree of fault” that applies to Khalil’s
defamation claim
The requisite degree of fault that applies can be determined by either the
status of the individual allegedly defamed or the context in which the statement
was made. See Neely v. Wilson, 418 S.W.3d 52, 61 (Tex. 2013); Maewal v.
Adventist Health Sys./Sunbelt, Inc., 868 S.W.2d 886, 893 (Tex. App.—Fort Worth
1993, writ denied); Combined Law Enforcement Ass’n of Tex. v. Sheffield, No. 03-
13-00105-CV, 2014 WL 411672, at *6–8 (Tex. App.—Austin Jan. 31, 2014, pet.
denied) (mem. op.). Regarding status, a private individual suing for defamation is
required to prove negligence in the making of the statement, while a public figure
is required to prove actual malice. Neely, 418 S.W.3d at 61.
Regarding context, a plaintiff must prove actual malice regardless of her
status when her claims raise a qualified privilege or immunity defense. See Shell
17
Oil Co. v. Writt, 464 S.W.3d 650, 655 (Tex. 2015); Sheffield, 2014 WL 411672, at
*6–8; Maewal, 868 S.W.2d at 893; Bergman v. Oshman’s Sporting Goods, Inc.,
594 S.W.2d 814, 816 & n.1 (Tex. Civ. App.—Tyler 1980, no writ). A qualified
privilege exists for employers and employees communicating about the
competence of another employee when the communication is made to a person
having a corresponding interest or duty in the matter being discussed. Bergman,
594 S.W.2d at 816; see Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 630 (Tex.
App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). When a qualified privilege
exists, “the law presumes good faith and want of malice.” Marathon Oil, 682
S.W.2d 630. “Once the conditional privilege is shown to exist the burden is on the
plaintiff to show that the privilege is lost, that is, the plaintiff must then show
malice.” Bolling v. Baker, 671 S.W.2d 559, 564–65 (Tex. App.—San Antonio
1984, writ dism’d w.o.j.).
“The peer review process is analogous to an employer’s performance
assessment of an employee or an employer’s investigation into an employee’s
alleged wrongdoing.” Maewal, 868 S.W.2d at 893. Peer-review activities,
therefore, are also entitled to a qualified privilege. See St. Luke’s Episcopal Hosp.
v. Agbor, 952 S.W.2d 503, 509 (Tex. 1997). Because of the qualified privilege’s
presumption that a peer-review committee acted without malice, a plaintiff-
employee suing for defamation for statements by a medical-peer-review committee
18
must establish, as an element of her claim, actual malice. See Ching v. Methodist
Children’s Hosp., 134 S.W.3d 235, 242 (Tex. App.—Amarillo 2003, pet. denied);
Dallas Cty. Med. Soc’y v. Ubinas-Brache, 68 S.W.3d 31, 40 (Tex. App.—Dallas
2001, pet. denied); Maewal, 868 S.W.2d at 893. Thus, the “requisite degree of
fault” that applies here is malice.
b. Communications underlying Khalil’s defamation claim
Khalil points to six communications in support of her defamation claim
against Memorial Hermann. These communications fall within three groups:
(1) non-defamatory employee correspondence, (2) a letter written by Carin
Hagberg, who is the UT Health chair of anesthesiology department as well as the
Memorial Hermann chief of anesthesia department, to formally respond to a
grievance brought by Khalil, and (3) Memorial Hermann peer-review records.
1) Non-defamatory employee correspondence
Many of the statements underlying Khalil’s defamation suit were in
employee correspondence. The first correspondence is an email string in which
Michael Fallon, the director of UT Health’s clinical research unit, asked Carin
Hagberg to clarify Khalil’s practice restrictions. Fallon explained that he had been
told “indirectly” that Khalil is not “allowed” to “work” but added that
“I, obviously, know none of the details” about that limitation. He asked whether
the limitation meant that Khalil’s research activities also were limited. Hagberg
19
responded that Khalil “cannot provide clinical services” but “can continue to
perform research work . . . .” As the email string continued, Hagberg further
clarified Khalil’s restrictions: “I informed Dr. Khalil that she would be restricted
from clinical duties until further evaluation of her care was completed on August 2,
2015. . . . She was instructed that she could continue her clinical studies but she
cannot provide hands-on patient care.” All of the communications in this email
string contain assertions of fact that Khalil’s duties had been restricted; they do not
make any defamatory statements regarding her medical competence.
The second communication is an email to Khalil confirming that, while she
was not permitted to perform clinical services, she could work with others who do
perform clinical services in order to continue her research protocols. This email
also contains only assertions of fact and does not contain any defamatory
statements regarding Khalil’s competence.
The third communication is an email from Hagberg to Khalil informing her
that she is not permitted to engage in clinical research. The email required Khalil to
identify the individual who would be taking over her ongoing research and to
provide that information to Hagberg and “Dr. Dougherty.” According to Khalil,
this email demonstrates that “Dr. Dougherty” knew of her job limitations even
though, according to her, that doctor is not on a peer-review committee. Nothing in
this exhibit or in the record indicates who Dr. Dougherty is or whether that
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doctor’s interest in the matter is in a role at UT Health or Memorial Hermann.
Regardless, the email, at most, suggests that Khalil no longer held her former
position, which is an accurate, nondefamatory assertion. See Klentzman v. Brady,
312 S.W.3d 886, 898–99 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (holding
that truth is defense to defamation claim).
2) Letter written by Hagberg in response to formal
grievance brought by Khalil
The next document relied on by Khalil to demonstrate that Memorial
Hermann made defamatory statements about her is a letter from Carin Hagberg,
who holds positions at both UT Health Medical School and Memorial Hermann.
The letterhead and signature block on Hagberg’s letter indicate that the letter was
written in her capacity at the UT Health Medical School. The letterhead specifies
that it is a UT Health Medical School correspondence, and her signature block
includes the designation of “Joseph C. Gabel Professor and Chair of the
Department of Anesthesiology.” Hagberg’s letter is addressed to “Kevin A.
Moreno, PhD., University of Texas Distinguished Teaching Professor, Associate
Dean for Faculty Affairs, UT Health Medical School.” It states that it is written “in
response to the formal grievance initiated by Dr. Khalil” to “provide some
background.”
Exhibits to Khalil’s fourth amended petition provide context to this letter.
Her exhibits include a copy of the UT Health faculty grievance policy as found in
21
the UT Health Handbook of Operating Procedures. The policy addresses “faculty
grievances” about “actions of supervisors, department chairs or equivalent and
deans as to the workload, compensation, working conditions, infringement of
academic freedom, and the interpretation of a rule, regulation or policy.” The
policy specifies that a faculty member who has a grievance against a department
chair—which was Hagberg’s position—should direct the grievance to a dean. The
policy further provides that a UT Health employee against whom a grievance is
brought “will respond to the grievance within seven calendar days” and that failure
to respond within that time will result in an automatic advancement of the appeal
to the next administrative level.
Hagberg’s letter refers to the fact that Khalil had filed a formal grievance,
states that her letter is written in response to that grievance, and is addressed to a
UT Health associate dean. Hagberg’s letter provides “background” information,
including that she had developed an action plan for Khalil that included a UT
Health employee assistance program assessment, a focused professional practice
evaluation of her competence, a chart review, and a requirement that Khalil
comply with hospital and department standards and practice guidelines. The letter
states that various nurses, anesthesiologists, and surgeons were interviewed as part
of the focused professional practice evaluation and that they reported negatively on
Khalil’s professionalism and collegiality. According to Hagberg’s letter, some
22
described Khalil as “difficult” and stated that she would not use new procedures
and instead used techniques that unnecessarily prolonged anesthesia and surgery
time. The letter concludes by stating that Khalil’s restrictions will continue “at
least until she has completed an evaluation by one of the two approved program’s
recommended by” the UT Health EAP representative.
Khalil argues that Hagberg’s letter is evidence that Memorial Hermann
defamed her, pointing out that Hagberg wore “two hats,” working for both
Memorial Hermann and UT Health. But Hagberg’s letter was written in the context
of Khalil filing a grievance under the UT Health grievance policy. This policy
allows UT Health faculty members (like Khalil) to formally complain about
actions of their UT Health supervisors, department chairs (like Hagberg), and
deans. Nothing about the written grievance policy or Hagberg’s response indicated
that Hagberg was writing as a Memorial Hermann employee. Instead, everything
about the letter, including the letterhead, signature block, and content of the letter,
demonstrated that Hagberg wrote the letter in her position at UT Health as part of a
UT Health employment matter. The letter does not support Khalil in meeting her
burden to establish by clear and specific evidence a prima facie case for each
essential element of Khalil’s defamation claim against Memorial Hermann.
We turn next to the Memorial Hermann peer-review records.
23
3) Memorial Hermann peer-review records
The final two documents Khalil identifies as evidence that Memorial
Hermann defamed her are letters addressing Memorial Hermann’s peer-review
evaluation of Khalil’s medical competence.
The first is a letter dated October 14, 2015 from the co-chairs of the
Memorial Hermann pediatric medical-staff quality-review committee. At the top is
a peer-review committee reference. It states: “PRIVILEGED AND
CONFIDENTIAL RECORDS AND PROCEEDINGS OF A MEDICAL PEER
REVIEW COMMITTEE.” It identifies two cases that were brought to the attention
of the quality-review committee, states a date that the committee will meet to
review the cases, and requests that Khalil submit a written analysis of each case for
the committee’s consideration.
The second is the December 8, 2015 letter discussed above in which the
Memorial Hermann chief of staff informs Khalil that the medical-executive
committee reviewed the quality-review committee’s findings and “agreed” that
Khalil’s clinical practice “represents the potential of imminent patient harm” and,
therefore, that she was “not to care for patients at this hospital at this time.” The
letter indicates that a copy would go to a “credentials file.” This letter, like the
previous one, contains a peer-review notation: “PRIVILEGED AND
CONFIDENTIAL RECORDS AND PROCEEDINGS OF A MEDICAL PEER
24
REVIEW COMMITTEE.” It informs Khalil that the committee is acting in an
effort “to promote patient safety and is acting in good faith to that end.” The letter
included specific negative findings, including:
1. Dr. Khalil has one way of doing things and appears unwilling to
consider changing her historical approach;
2. Dr. Khalil does not communicate well with team members;
3. There was apparent lack of teamwork in the two cited cases;
4. Dr. Khalil had not read the patient records or communicated with the
surgeons on an agreed plan prior to either case;
5. Dr. Khalil’s recollections did not comport with documentation in the
medical records and with interviews with other team members;
6. Dr. Khalil expressed a rigidity and “militancy” that has no place in the
surgical suite team environment; and
7. Dr. Khalil demonstrated lack of insight (and basic knowledge) and
demonstrated no willingness to objectively review the cases. She did
not recognize symptoms of hypercarbia and did not acknowledge
incorrect morphine dosage in the ENT case.
The letter then reiterated the committee’s conclusion that “[Khalil’s] clinical
practice represents the potential of imminent patient harm and will not be
permitted if [she] attempt[s] to exercise clinical privileges.”
The burden is on Khalil to establish by clear and specific evidence a prima
facie case for each essential element of her defamation cause of action, including
“the requisite degree of fault.” See TEX. CIV. PRAC. & REM. CODE § 27.005(c); In
re Lipsky, 460 S.W.3d at 593. Khalil argues that the “requisite degree of fault” is
25
not malice because she is not a public figure. We disagree that malice is not
required.
These two letters identify themselves, on their face, as peer-review
documents.5 Section 160.010 of the Occupations Code states that a “health care
entity that, without malice, participates in medical peer review or furnishes
records, information, or assistance to a medical peer review committee or the board
is immune from any civil liability arising from that act.” TEX. OCC. CODE
§ 160.010(c). Further, “[a] cause of action does not accrue . . . against a health care
entity from any act, statement, determination or recommendation made, or act
reported, without malice, in the course of medical peer review.” Id. at
§ 160.010(b). Because these two documents underlying Khalil’s tort claims are
peer-review documents, Khalil has the burden to establish malice for the
statements in these letters. See Ubinas-Brache, 68 S.W.3d at 40; Maewal, 868
S.W.2d at 893.
Khalil responds that Memorial Hermann’s insistence, on appeal, that she has
the burden to establish malice, is a “new legal argument[]” that should not be
5
In her motion for rehearing, Khalil points to a third letter as evidence of
defamatory statements, which is a letter dated December 16, 2014 that is from
Memorial Hermann’s chief of staff to Khalil. The letter, like the two letters
discussed above, is marked “privileged & confidential medical staff peer review
committee proceedings & document.” Thus, it is subject to the same analysis as
the October 14 and December 8 documents.
26
permitted. We disagree for two reasons. First, Memorial Hermann did raise the
defense of peer-review privilege in its answer and in its motion to dismiss. Second,
Memorial Hermann’s motion to dismiss was denied by operation of law, and we
review that denial using a de novo standard. A necessary step in our review is to
determine whether Khalil established by clear and specific evidence a prima facie
case for each essential element of her claim. TEX. CIV. PRAC. & REM. CODE
§ 27.005(c). In the context of a peer-review-committee action—which a
defamation suit based on two peer-review-committee letters would be—one of the
elements that must be established by the plaintiff is malice. See Ubinas-Brache, 68
S.W.3d at 40; cf. Sheffield, 2014 WL 411672, at *6 (holding that malice is part of
nonmovant’s prima facie defamation proof in evaluating TCPA dismissal in
context of labor dispute).
To establish malice, Khalil points to two emails sent to her by Memorial
Hermann’s peer-review committee. The emails ask Khalil to review and comment
on cases that drew additional investigation during the chart audit. Each email states
the known facts surrounding Khalil’s care of a pediatric patient, lists information
from that patient’s chart, and identifies medical difficulties encountered. The two
emails ask Khalil to provide the committee with her comments on each case.
These emails evidence the type of investigation that is expected of peer-
review committees. See Ching, 134 S.W.3d at 241 (stating that public policy
27
encourages hospitals to conduct peer reviews of physicians). They contain no
evidence of malice, and they fail to overcome the presumption of no malice on the
part of a hospital entity engaging in peer-review activities. See id. at 242; Maewal,
868 S.W.2d at 893.
Khalil suggests that, even if the emails’ content does not establish malice,
the timing of the two communications raises an issue of malice because the peer-
review committee’s emails were sent in September 2015, which was several weeks
after she had already been removed from clinical-care duties. We fail to see any
evidence of malice in this timing. When, in December 2014, Khalil was removed
from clinical care and a corrective action plan was initiated, Khalil agreed to
participate in a focused professional practice evaluation as well as a chart audit. In
a letter to Khalil dated September 14, 2015, the UT Health associate dean of
faculty affairs stated that the chart audit had been completed. That chart audit
flagged two patient-care events that occurred in June 2015. Memorial Hermann
determined that the two cases required additional review. Just one month later,
Memorial Hermann notified Khalil that its quality-review committee would hold a
meeting the following month to review the two cases and, in advance of that
meeting, sent the two emails to request Khalil’s input.
These two emails are evidence of the peer-review committee’s efforts to
gain Khalil’s perspective on two flagged cases. These documents, like the others
28
discussed above, fail to provide clear and specific evidence of malice, an essential
element of a defamation claim based on peer-review communications.6
6
In her petition for rehearing, Khalil points to other documents in the record and
argues that viewing those documents in the light most favorable to her requires a
conclusion that she has met her burden, including to provide evidence of malice.
We disagree.
First, she points to a partial printout of a letter from her to an unspecified recipient,
written in late June or early July 2015. In that letter, Khalil first discusses a letter
she had recently received giving her final notice that her reappointment packet was
due and then she alleges that Memorial Hermann was wrongly holding up her
reappointment application. According to Khalil, her letter shows intentional delay
of the credentialing process by Memorial Hermann. But the record also contains a
letter to Khalil from Memorial Hermann’s chief medical officer dated July 15,
2015. This July 15 letter was attached as an exhibit to Khalil’s fourth amended
petition. Thus, it was her evidence submitted in support of her defamation claim.
The July 15 letter assures Khalil that a letter previously sent to her about the status
of her credentials was sent in error, did not apply to her, and did not accurately
state the status of her recredentialing review. The letter further assures Khalil that
she was not, at that time, behind on her application process.
Khalil accurately states that we must view the evidence in the light most favorable
to her. See Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 213–14 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (setting forth standard of review). She asserts
that we discounted evidence favorable to her, choosing, instead, to credit contrary
evidence. But all of the evidence was her evidence, attached to her pleadings. The
applicable standard of review does not require that we ignore her evidence that
provides context to other evidence on which she complains. The second letter
explains that Khalil need not try to interpret the earlier correspondence she
received because it was sent to her in error and did not apply to her recredentialing
process.
Second, she points to letters by other physicians containing positive remarks about
her medical skills. Again, Khalil asserts that we must review these letters in the
light most favorable to her and discount other evidence to the contrary. She
contends that we failed to do so because we “credited negative findings” about her
in Memorial Hermann’s competency review over these positive reviews. Again,
we disagree. We describe the negative statements in the Memorial Hermann
documents only because those documents were the basis for Khalil’s assertion that
29
Because Khalil did not meet her burden to avoid dismissal of her defamation
claim under the TCPA procedures, the denial of this aspect of Memorial
Hermann’s dismissal motion was in error. We turn next to Memorial Hermann’s
efforts to dismiss Khalil’s other causes of action.
2. Fraud
“A plaintiff seeking to prevail on a fraud claim must prove that (1) the
defendant made a material misrepresentation; (2) the defendant knew the
representation was false or made the representation recklessly without any
knowledge of its truth; (3) the defendant made the representation with the intent
that the other party would act on that representation or intended to induce the
party’s reliance on the representation; and (4) the plaintiff suffered an injury by
actively and justifiably relying on that representation.” Exxon Corp. v. Emerald Oil
& Gas Co., L.C., 348 S.W.3d 194, 217 (Tex. 2011).
Khalil contends that Memorial Hermann made representations to her that the
credentialing process could be completed by the date her credentials were set to
expire but intentionally delayed and misrepresented the process to her to allow her
credentials to expire. Khalil’s position appears to be that Memorial Hermann knew
its representations to her during the peer-review and related credentialing process
defamatory statements had been made about her. The extent of Khalil’s medical
skills are not an issue on appeal and we have offered no evaluation of that issue.
30
were false because Memorial Herman never intended to truly consider her for
recredentialing.
Khalil’s argument asks that we presume bad intentions by Memorial
Hermann. Specifically, it asks that we assume that Memorial Hermann knowingly
made false representations during its peer-review and credentialing activities. We
cannot presume such bad intentions because there is a presumption of good faith
that attaches to any “act, statement, determination, or recommendation made, or act
reported . . . in the course of medical peer review.” TEX. OCC. CODE § 160.010(b);
Ubinas-Brache, 68 S.W.3d at 39–40 (citing Occupations Code and stating that
statute mandates “a threshold standard of malice to state a cause of action against a
health care entity for medical peer review actions” and that plaintiff bears burden
to establish malice).
Because Khalil failed to offer clear and specific evidence of malice in the
context of challenged peer-review actions, her fraud claim fails. See TEX. CIV.
PRAC. & REM. CODE § 27.005(c).
3. Tortious interference with UT Health contract
“The elements of a cause of action for tortious interference are (1) the
existence of a contract subject to interference, (2) the act of interference was
willful and intentional, (3) such intentional act was a proximate cause of plaintiff’s
31
damage and (4) actual damage or loss occurred.” Victoria Bank & Trust Co. v.
Brady, 811 S.W.2d 931, 939 (Tex. 1991).
In her fourth amended petition, Khalil asserts that Memorial Hermann
interfered with her contract with UT Health by disparaging her work performance
to UT Health employees and requiring UT Health’s department chair to suspend
her.
To withstand dismissal under the TCPA procedures, Khalil must establish
by clear and specific evidence a prima facie case for each essential element of her
tortious interference claim, including damages. TEX. CIV. PRAC. & REM. CODE
§ 27.005(c); see Am. Nat’l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798
S.W.2d 274, 278 (Tex. 1990) (“The basic measure of actual damages for tortious
interference with contract is the same as the measure of damages for breach of the
contract interfered with, to put the plaintiff in the same economic position he
would have been in had the contract interfered with been actually performed.”).
Clear and specific evidence to support a prima facia case means “the
minimum quantum of evidence necessary to support a rational inference that the
allegation of fact is true.” In re Lipsky, 460 S.W.3d at 590 (internal quotations
omitted). Thus, Khalil must proffer at least the minimum quantum of evidence
necessary to support a rational inference that Memorial Hermann’s interference
32
with her contract with UT Health proximately caused her damages flowing from
that contract.7
Khalil concedes that she “is still employed” by UT Health and working
under her existing contract, which suggests that she also is continuing to receive
compensation due under that contract. She does not allege that her UT Health
income has diminished due to the practice restrictions UT Health imposed, nor
does she offer any evidence to support such a conclusion. Khalil speculates that her
UT Health contract might not be renewed in the future, which could cause future
economic losses, but her assertion is speculative and no evidence of actual
damages or losses flowing from any interference by Memorial Hermann with her
UT Health contract. See S. Elec. Servs., Inc. v. City of Houston, 355 S.W.3d 319,
324 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (stating that “a party may
not recover damages for breach of contract if those damages are remote,
contingent, speculative, or conjectural”).
With no evidence of economic damages proximately caused by interference
with her contract with UT Health, Khalil argues that she has suffered mental-
7
Memorial Hermann and UT Health are separate entities. Khalil had a contract with
each entity and received earnings under each contract. In this claim, she asserts
that Memorial Hermann interfered with her UT Health contract and caused her
damages under that contract. Thus, the claim is focused on earnings due to Khalil
under her UT Health contract. To the extent her earnings under the Memorial
Hermann contract were reduced as a result of Memorial Hermann’s actions, those
losses are distinct from and do not support her interference claim, seeking the
damages that flowed from interference with the UT Health contract.
33
anguish damages. But mental anguish damages are not recoverable in a claim for
tortious interference with a contract. See Creditwatch, Inc. v. Jackson, 157 S.W.3d
814, 818 & n.22 (Tex. 2005) (stating that claim for tortious interference with
contract does not allow mental anguish damages).
Because Khalil failed to establish by clear and specific evidence a prima
facie case for damages, which is an essential element of her tortious interference
claim, it was error for the trial court not to dismiss this claim. See TEX. CIV. PRAC.
& REM. CODE § 27.005(c).
4. Intentional infliction of emotional distress
“To recover damages for intentional infliction of emotional distress, a
plaintiff must establish that: (1) the defendant acted intentionally or recklessly;
(2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s
actions caused the plaintiff emotional distress; and (4) the resulting emotional
distress was severe.” Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445
(Tex. 2004). Whether a defendant’s conduct is “extreme and outrageous” is a
question of law. Wornick Co. v. Case, 856 S.W.2d 732, 734 (Tex. 1993); Gaspard
v. Beadle, 36 S.W.3d 229, 237 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
Extreme and outrageous conduct is conduct that is “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
34
community.” Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)). “Meritorious claims for
intentional infliction of emotional distress are relatively rare precisely because
most human conduct, even that which causes injury to others, cannot be fairly
characterized as extreme and outrageous.” Kroger Tex. Ltd. P’ship v. Suberu, 216
S.W.3d 788, 796 (Tex. 2006).
In deciding whether particular conduct rises to an extreme and outrageous
level, we consider the context and the relationship between those involved. GTE
Sw. Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). Texas courts have adopted a
“strict approach” to analyzing claims of intentional infliction of emotional distress
in the employer-employee context. Durckel v. St. Joseph Hosp., 78 S.W.3d 576,
586 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The employer’s conduct
must exceed the scope of an ordinary employment dispute to enter the realm of
extreme and outrageous conduct—the sort that would be utterly intolerable in a
civilized community. Id. “Even the wrongful transfer, failure to promote, or
termination of an employee does not, standing alone, constitute intentional
infliction of emotional distress.” City of Midland v. O’Bryant, 18 S.W.3d 209, 217
(Tex. 2000). Nor does a threat to fire someone or “ruin their career.” Louis v.
Mobil Chem. Co., 254 S.W.3d 602, 609 (Tex. App.—Beaumont 2008, pet. denied)
(holding that such threats are part of “ordinary business dispute”).
35
Khalil seeks to meet her evidentiary burden to establish by clear and specific
evidence a prima facie case for the element of “extreme and outrageous” conduct
by pointing to Memorial Hermann’s “denying her due process and denying her
rights” under the medical-staff bylaws. In essence, she complains that Memorial
Hermann wanted to suspend, or possibly terminate, her without the burden of
following its bylaws. Even if true, acting in violation of a stated policy does not
meet the standard of extreme and outrageous conduct in the context of an
employer-employee dispute. See Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721,
723, 725 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Sebesta v. Kent
Elecs. Corp., 886 S.W.2d 459, 462–64 (Tex. App.—Houston [1st Dist.] 1994, writ
denied). We conclude that Khalil’s allegations and evidence suggesting that
Memorial Hermann violated its internal policies and procedures, without more, is
insufficient to meet her evidentiary burden with respect to the extreme-and-
outrageous-conduct element of her claim.
We hold that the trial court erred by not dismissing this claim. See TEX. CIV.
PRAC. & REM. CODE § 27.005(c).
5. “Assisting and encouraging”
Khalil asserts that Memorial Hermann assisted and encouraged UT Health to
remove her from clinical practice through a summary suspension without due
36
process or other rights provided for in Memorial Hermann’s bylaws. She asserts
this claim as a separate cause of action from the others discussed above.
It is an “open question” whether a tort exists, under Texas law, for “assisting
and encouraging.” Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996). The
concept is derived from Section 876 of the Second Restatement of Torts.
RESTATEMENT (SECOND) OF TORTS § 876 (1977). Subsection (b) states that liability
can be imposed on a person for the conduct of another if the defendant “knows that
the other’s conduct constitutes a breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself.” Id. at § 876(b). The Texas
Supreme Court has not recognized “assisting and encouraging” as a viable tort
theory but has noted that the theory is meant to deter “highly dangerous, deviant,
or anti-social group activity [that is] likely to cause serious injury or death to a
person or certain harm to a large number of people,” like, for example, group
assault and drag racing. Juhl, 936 S.W.2d at 644–45; see Martinez v. Ford Motor
Credit Co., No. 04-11-00306-CV, 2012 WL 3711347, at *5 (Tex. App.—San
Antonio Aug. 29, 2012, pet. denied) (mem. op.) (holding that failure to obtain
salvage or nonrepairable title would not meet Juhl standard); W. Fork Advisors,
LLC v. SunGard Consulting Servs., LLC, 437 S.W.3d 917, 921–22 (Tex. App.—
Dallas 2014, pet. denied) (concluding that misappropriation of trade secrets fails to
meet standard of “highly dangerous, deviant, or anti-social group activity [that is]
37
likely to cause serious injury or death to a person or certain harm to a large number
of people”).
Even assuming this is a viable cause of action, the Juhl requirement that the
activity be “highly dangerous, deviant, or anti-social group activity” is not satisfied
with allegations or evidence of coordinated efforts to remove an employee.
Accordingly, we conclude that Khalil has not established a prima facie case for this
claim, and the trial court erred by not dismissing it.
6. Conspiracy
“Civil conspiracy, generally defined as a combination of two or more
persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by
unlawful means, might be called a derivative tort. That is, a defendant’s liability
for conspiracy depends on participation in some underlying tort . . . .” Tilton v.
Marshall, 925 S.W.2d 672, 681 (Tex. 1996).
Khalil argues that Memorial Hermann conspired with UT Health to defraud
her and remove her clinical privileges without due process. We have already
concluded that Khalil cannot avoid dismissal of her other asserted tort claims.
Because conspiracy is dependent on an underlying tort, and none remain, it too is
subject to dismissal. Grant Thornton LLP v. Prospect High Income Fund, 314
S.W.3d 913, 930–31 (Tex. 2010); Preston Gate, LP v. Bukaty, 248 S.W.3d 892,
38
898 (Tex. App.—Dallas 2008, no pet.). The trial court erred by not dismissing this
claim.
We turn next to Khalil’s argument that the TCPA is unconstitutional, which,
if we were to agree, would require us to affirm the denial of Memorial Hermann’s
TCPA motion.
C. Khalil’s constitutional challenge
Khalil challenges the TCPA as unconstitutional, both facially and as applied
to her. She asserts that it violates the Open Courts provision of the Texas
Constitution found in Article I, Section 15, and denies the guaranteed right of free
expression contained in Article I, Section 8.
“Under a facial challenge . . . the challenging party contends that the statute,
by its terms, always operates unconstitutionally.” Tex. Workers’ Comp. Comm’n v.
Garcia, 893 S.W.2d 504, 518 (Tex. 1995). A “facial challenge contrasts with an
‘as applied’ challenge, under which the plaintiff argues that a statute, even though
generally constitutional, operates unconstitutionally as to him or her because of the
plaintiff’s particular circumstances.” Id. at 518 n.16. “We may not hold the statute
facially invalid simply because it may be unconstitutionally applied under
hypothetical facts which have not yet arisen.” Tex. Boll Weevil Eradication
Found., Inc. v. Lewellen, 952 S.W.2d 454, 463 (Tex. 1997).
39
1. Facial challenge
Khalil’s facial challenge argues that the TCPA “functions as a prior
restraint.” She suggests that the constitutional analysis historically given to “prior
restraint” cases applies here. We disagree.
“The term prior restraint is used ‘to describe administrative and judicial
orders forbidding certain communications when issued in advance of the time that
such communications are to occur.’” Alexander v. United States, 509 U.S. 544,
550, 113 S. Ct. 2766, 2771 (1993); see Marketshare Telecom, LLC v. Ericsson,
Inc., 198 S.W.3d 908, 917 (Tex. App.—Dallas 2006, no pet.). We fail to see how a
statute that provides for the dismissal of already-filed claims that are based on
already-published speech acts as a prior restraint on speech. See Guam Greyhound,
Inc. v. Brizill, No. CVA07-021, 2008 WL 4206682, at *7 (Guam Terr. Sept. 11,
2008) (rejecting contention that anti-SLAPP statute acts as prior restraint).
The remainder of Khalil’s facial-challenge argument is that the TCPA
applies “expedited, draconian procedures”8 that prevent a plaintiff from conducting
8
Khalil describes the TCPA’s procedures as “draconian,” yet she states that the
requirement to “establish by clear and specific evidence a prima facie case for
each essential element of the claim” is—in her words—“in reality a modest
burden.” This is because courts consider the parties’ pleadings, their supporting
affidavits, and any permitted discovery when analyzing a TCPA dismissal motion,
and they view these documents in the light most favorable to the nonmovant
attempting to avoid dismissal. See Cheniere Energy, 449 S.W.3d at 214; see also
In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015) (stating that, although “the TCPA
initially demands more information about the underlying [defamation] claim, the
40
discovery to meet the statute’s evidentiary burden and impose mandatory
attorney’s fees and sanctions that act to deny access to the courts to seek redress
for reputational torts.
The challenge to the discovery limitation mirrors one asserted and rejected
in Sheffield. See 2014 WL 411672, at *10 (rejecting open-courts challenge to
TCPA’s discovery restrictions because, first, provision that stays discovery is
tempered by another provision that permits discovery on showing of good cause
and, second, curtailing potentially costly discovery in possibly meritless case
serves TCPA’s goal of keeping litigation from being used to chill exercise of
protected rights). We conclude that there is no merit to Khalil’s open-courts
challenge to the TCPA’s discovery restrictions.
We likewise conclude that there is no merit to Khalil’s challenge to the
TCPA’s fee-award provision, which states that upon dismissal of a legal action
under the TCPA, “the court shall award to the moving party . . . court costs,
reasonable attorney’s fees, and other expenses incurred in defending against the
legal action as justice and equity may require” as well as “sanctions . . . as the
court determines sufficient to deter the party who brought the legal action from
bringing similar actions described in this chapter.” TEX. CIV. PRAC. & REM. CODE
Act does not . . . impose a higher burden of proof than that required of the plaintiff
at trial.”).
41
ANN. § 27.009(a). To prevail on an open-courts challenge, Khalil must show that a
cognizable common-law cause of action is being restricted and that the restriction
is unreasonable or arbitrary when balanced with the statute’s purpose and basis.
Sheffield, 2014 WL 411672, at *9. The issue here is whether a mandatory fee
award is unreasonable or arbitrary given the TCPA’s purpose.
The TCPA’s express purpose is to balance protections for persons exercising
their constitutional rights of expression and association with protections for
persons filing meritorious lawsuits for demonstrable injury. TEX. CIV. PRAC. &
REM. CODE ANN. § 27.002. Khalil describes the fee-award provision as a barrier to
a party’s right to “seek to utilize their right to petition to protect their reputations.”
We disagree.
The fee-award provision is not imposed on a party before being permitted to
institute litigation. Nor is it imposed on parties who meet the burden placed on
them, under the TCPA, of establishing by “clear and specific evidence” the
elements of their prima facie case so as to avoid dismissal. Id. § 27.005(c). Instead,
it is a fee imposed after resolution of a motion to dismiss that shifts litigation costs
from the prevailing party (who met its burden to show by a preponderance of the
evidence that the legal action is based on, related to, or is in response to that
party’s exercise of protected rights) to the party that failed to meet its burden. See
42
id. § 27.005(b). Section 27.009 does not act as an impermissible pay-to-play
barrier to the courts; it shifts litigation costs after resolution of a claim.
There are provisions in place that limit the impact of this fee-shifting
provision. A TCPA motion to dismiss must be filed within 60 days of the date of
service of the legal action, absent a showing of good cause for a later filing. See id.
§ 27.003(b). This temporal limitation has the effect of limiting the amount of
attorney’s fees that could be incurred by a party seeking dismissal of a claim and,
in turn, imposed on a party subject to the TCPA’s summary-dismissal procedures.
Additionally, the TCPA provides trial courts with discretion to determine a
“reasonable” amount of attorney’s fees to award as well as the amount of sanctions
that would be sufficient to deter repeated, similar filings. See id. § 27.009(a).
Moreover, the TCPA includes a countermeasure that permits fee-shifting in the
event a trial court finds that a motion to dismiss was frivolous or filed solely to
delay. See id. § 27.009(b).
Given these measures that limit the duration of fee accumulation and
therefore the amount of fees that might be imposed on a party under the TCPA,
provide the trial court with discretion in determining fee and sanction awards, and
establish a mechanism to shift fees to those who would abuse the TCPA
procedures, we conclude that the fee-award provision is not unreasonable or
arbitrary when balanced with the statute’s purpose and does not violate the open-
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courts doctrine. Cf. Guillory v. Seaton, LLC, 470 S.W.3d 237, 244–45 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied) (reaching similar conclusion in open-
courts challenge to fee-shifting mechanism in Rule 91a of Texas Rules of Civil
Procedure).9
We conclude that there is no merit to Khalil’s challenge that the TCPA is
facially unconstitutional.
9
Khalil’s brief highlights that these dismissal procedures are being implemented
against “reputational tort” claims and suggests that such claims are entitled to a
more exacting analysis than has been applied in other open-courts challenges
because the Texas Constitution protects one’s right to sue for reputational torts.
See TEX. CONST. art. I, § 8. While this constitutional provision protects the right to
seek damages for defamatory speech, it also protects the constitutional right to that
speech. See Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013). The law strives to
balance these constitutionally protected interests. See id.; see also Cain v. Hearst
Corp., 878 S.W.2d 577, 582 (Tex. 1994) (noting “numerous procedural and
substantive hurdles” to actions for defamation under Texas law). The TCPA
expresses a similar purpose, to balance protection of a person’s right to file
meritorious lawsuits with protection of others’ constitutional rights to speak freely.
See TEX. CIV. PRAC. & REM. CODE § 27.002. As such, movants invoke the TCPA
to obtain summary dismissal of retaliatory lawsuits that seek to silence their
speech. See In re Lipsky, 460 S.W.3d at 586. Given the scope of the TCPA, these
lawsuits are often pleaded as reputational torts. See, e.g., Newspaper Holdings,
Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston
[1st Dist.] 2013, pet. denied) (involving party seeking TCPA dismissal of
defamation claim); In re Lipsky, 460 S.W.3d at 579 (same). At oral argument,
Khalil conceded the lack of constitutional case law supporting her argument for a
more exacting analysis of her open-courts challenge to the dismissal of
reputational torts. And we fail to see how an open-courts challenge to a dismissal
statute that involves shifting burdens of proof, places on the nonmovant the burden
to establish by clear and specific evidence a prima facie case for each essential
element of her claims to avoid dismissal, but also provides a mechanism to obtain
discovery, if shown to be warranted, to obtain additional evidence to meet that
burden would be analyzed with a different constitutional rigor in the context of a
reputational tort versus any other claim.
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2. “As applied” challenge
Khalil’s “as applied” argument mirrors her facial-challenge argument. She
provides no additional argument how this statute, if facially valid, is, nevertheless,
unconstitutional as applied to her particular claims. By failing to adequately brief
this assertion, she has waived it. See TEX. R. APP. P. 38.1(i).
D. Conclusion on Memorial Hermann’s motion to dismiss
Memorial Hermann met its initial burden to establish by a preponderance of
the evidence that Khalil’s legal action is based on, relates to, or is in response to its
exercise of the right of free speech, as defined in the TCPA. Khalil failed to meet
her burden to establish by clear and specific evidence a prima facie case for each
essential element of her claims challenged in Memorial Hermann’s motion to
dismiss. Accordingly, we sustain Memorial Hermann’s first issue and conclude
that the denial of Memorial Hermann’s dismissal motion must be reversed.
Because this resolution grants Memorial Hermann the relief it seeks—dismissal of
Khalil’s challenged claims—Memorial Hermann’s second issue, which seeks the
same disposition, is moot.
We turn now to Khalil’s appeal of the denial of her TCPA motion to dismiss,
through which she sought dismissal of Memorial Hermann’s TCPA motion.
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Khalil’s Motion to Dismiss Memorial Hermann’s Motion
In Khalil’s cross-appeal, she argues that the trial court erred by denying her
motion to dismiss. Whether a party may seek Chapter 27 dismissal of a Chapter 27
motion to dismiss involves construction of a statute, which courts review de novo.
See R.R. Comm’n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d
619, 624 (Tex. 2011). Khalil cannot use the TCPA to seek dismissal of Memorial
Hermann’s dismissal motion,10 but even if she could, our analysis of the issues in
the context of the TCPA’s shifting burdens of proof would lead us to conclude that
Memorial Hermann has met its burden to avoid dismissal of its legal action.
Memorial Hermann’s legal action—its TCPA motion to dismiss—sought the
dismissal of Khalil’s claims. We have concluded that the motion had merit in that
Memorial Hermann met its burden while Khalil did not meet hers to avoid
dismissal. Because Memorial Hermann has met the prima-facie standard, the
burden of proof shifts back to Khalil to establish a defense. See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.005(d). The only defense Khalil raises is that the statute is
unconstitutional. We have rejected that argument.
Finding no error in the denial of Khalil’s motion to dismiss and no merit to
her constitutional argument, we overrule her cross-appeal.
10
See Paulsen v. Yarrell, No. 01-16-00061-CV, 2017 WL 2289129, at *5–8 (Tex.
App.—Houston [1st Dist.] May 25, 2017, no pet. h.).
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Conclusion
We hold that Memorial Hermann satisfied its burden under the TCPA to
obtain dismissal of each of Khalil’s claims challenged by its motion. We therefore
reverse the denial of Memorial Hermann’s TCPA dismissal motion. With regard to
Khalil’s dismissal motion, we conclude that there was no error in its denial.
Accordingly, we remand the case to the trial court to dismiss Khalil’s claims
that were the subject of Memorial Hermann’s motion—defamation, fraud, tortious
interference, intentional infliction of emotional distress, “assisting and
encouraging,” and conspiracy; to determine any amounts that will be awarded to
Memorial Hermann because it prevailed on its dismissal motion; and for further
proceedings on Khalil’s remaining claims, including her age-discrimination claim.
Harvey Brown
Justice
Panel consists of Justices Massengale and Brown.11
11
When this appeal was originally decided, the panel consisted of Justices
Massengale, Brown, and Huddle. Justice Huddle left the court while Khalil’s
motion for rehearing was pending. The Texas Rules of Appellate Procedure allow
for a decision by the two remaining justices “if for any reason a member of the
panel cannot participate in deciding a case.” TEX. R. APP. P. 41.1(b); cf. id. 49.3
(“A motion for rehearing may be granted by a majority of the justices who
participated in the decision of the case. Otherwise, it must be denied.”).
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