Memorial Hermann Health System v. Miguel A. Gomez, III, M.D., and Miguel A. Gomez, M. D., P.A. ( 2019 )

Opinion issued August 15, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00632-CV
———————————
MEMORIAL HERMANN HEALTH SYSTEM, Appellant
V.
MIGUEL A. GOMEZ, III, M.D., AND MIGUEL A. GOMEZ, M.D., P.A.,
Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Case No. 2012-53962
OPINION
Appellees, Miguel A. Gomez, III, M.D., and Miguel A. Gomez, M.D., P.A.
(Gomez P.A., or, collectively, Gomez), sued appellant, Memorial Hermann Health
System (MHHS), for defamation, business disparagement, tortious interference
with prospective business relations, and restraint of trade based on two main
allegations—that MHHS had used misleading data and a “whisper campaign” to
eliminate competition by defaming Gomez and disparaging Gomez P.A.
Following a lengthy trial, the jury found in favor of Gomez and Gomez P.A. on
their defamation and business disparagement claims and awarded them more than
$6 million in compensatory and exemplary damages.
In six issues on appeal, MHHS argues that: (1) the alleged defamation and
disparagement described in the jury charge through Gomez’s testimony regarding a
conversation he had with an MHHS administrator was not published to a third
party; (2) there was no evidence that the defamation and disparagement described
in the jury charge as a statement made by an MHHS physician liaison to an
employee of a competitor hospital caused any of Gomez’s alleged damages; (3) the
alleged defamatory and disparaging statements were protected by qualified
privilege; (4) there is no evidence of causation generally; (5) there is legally
insufficient evidence of lost profits; and (6) alternatively, the judgment should be
reformed to eliminate a purportedly improper “double recovery” and the award for
exemplary damages.
In a contingent cross appeal, Gomez and Gomez P.A. argue that trial court
erred in its submission of their claim for tortious interference with prospective
business relations to the jury.
We affirm.
2
Background
A. Prior to 2008, Gomez Practiced Exclusively with MHHS
Gomez practiced as a cardiovascular surgeon for MHHS at its Memorial
Hermann/Memorial City location (MH/MC) beginning in 1998. He testified that
Dr. Don Gibson, “the primary heart surgeon there,” was looking for another
surgeon to join his group. Over the next ten years, their practice continued to be
successful.
Dr. Phillip Berman, a friend and cardiologist who had referred patients to
Gomez, testified that, leading up to 2009, he and other cardiologists “thought
[Gomez] was an excellent surgeon” because “[h]e was successful. He was doing
quite well. He did the robotic surgery. Patients did well.”
B. Late 2008 Through Early 2009, Gomez’s Practice Experienced Changes
However, in 2008, the West Houston-medical market had begun to change
in several material ways. MH/MC became concerned regarding mortality rates in
its cardiovascular surgery department.1
In 2008, Methodist Hospital System moved forward with plans to open a
new hospital in West Houston, Methodist West Hospital.
1
Records showed that from 2005–2008, Gomez had fourteen mortalities and the
three other cardiovascular surgeons at that hospital had mortalities ranging from
zero to eleven each. However, the record indicates that this data was not formally
compiled by MH/MC or MHHS until the fall of 2009.
3
Also in 2008, the then-CEO of MH/MC, Wayne Voss, left and ultimately
went to work with Methodist and became the CEO of Methodist West Hospital.
Throughout late 2008 and early 2009, Methodist West recruited other employees
from MH/MC as well. After Voss left, MHHS made changes at MH/MC,
including hiring Keith Alexander as its new CEO.
C. Early 2009, Gomez Looked into Opening a Practice at Methodist West
and an MHHS Employee Made the “Todd Statement”
Gomez testified that sometime in late 2008 or early 2009, people from
Methodist West approached him about practicing at the new hospital, and he
testified that he was interested in expanding his practice. This interest was based in
part on concerns he had regarding the change in administration at MH/MC and
dissatisfaction with “how [his] patients were taken care of.” Gomez agreed to
pursue opening a practice at Methodist West and began communicating with
people, including his partner, Gibson, regarding his new involvement with
Methodist. He indicated that he intended to perform surgeries at both hospitals.
However, others at MH/MC believed that Gomez might begin working exclusively
at Methodist West. Both Portia Willis, who was responsible for marketing for
MHHS, and Francesca Sam-Sin, who was a patient relation representative for
MHHS, testified that, early on, MHHS administrators believed that Gomez was
4
discussing moving his practice or splitting his practice,2 including the robotic
procedures, to Methodist West, which would be a “[b]ig deal” because MH/MC
would lose business.
At some point in the first half of 2009, while Methodist was still considering
and negotiating its future relationship with Gomez, Jennifer Todd—a physician
liaison with MHHS—contacted Cyndi Pena, who was by that time working as a
physician liaison with Methodist West.3 Pena testified that Todd told her, regarding
Gomez, “Be careful. We heard he’s going to Methodist and I just want to let you
know there’s things being said here, and they’re pertaining to the bad quality,
mortality rates. There was—I heard bad quality, high mortality rates, unnecessary
surgeries.” Pena further testified that Todd told her the allegations “were serious
enough that she was letting me know, because they had heard in meetings that Dr.
Gomez had plans to go to Methodist West.”
Pena testified that Todd’s statement “concerned [her] enough [that she] took
the information to [her] CEO as part of [her] job” at Methodist, and she
2
Byron Auzenne, an MHHS employee, testified that “splitter physicians”—or
physicians that split their practice between more than one hospital—were very
common and estimated that “probably 90 percent or greater” of physicians fell into
this category.
3
The record is unclear regarding exactly when this conversation took place. Pena
testified that she was working for Methodist at the time, and that she began
working for Methodist on February 23, 2009. Thus, the conversation probably
occurred in the spring or summer of 2009, after Pena began working there in
February 2009, and before Methodist ultimately decided to enter into an
Agreement for Physician Services with Gomez in September 2009.
5
recommended, “I would be careful to vet him because things like that don’t just
come out of nowhere.” Pena also testified that she believed the things Todd told
her because “it was out there already. It’s hard to explain. It was in the ether, it
was out there. So, in hearing that, I absolutely did believe it. And as I said, because
I witnessed it, you know, I witnessed that happening and heard it from multiple
physicians.” Pena also stated that Methodist West did look into Gomez’s
qualifications and, because he already had a relationship with the Methodist CEO,
Voss, Methodist decided to hire him.
D. Also in Early 2009, MH/MC Hired Auzenne
As Methodist was announcing its plans for a new hospital, MHHS was also
making some changes, beginning in early 2009. Prompted by federal-government
efforts to publish data about the quality of hospital care and concerns coming from
cardiologists and other specialists associated with the hospital, MHHS initiated
data-driven programs throughout its system, including in its cardiovascular surgery
(CV surgery) program at MH/MC. As part of these efforts, MHHS hired Byron
Auzenne.
Early in Auzenne’s tenure as the heart and vascular service line leader, he
received a recommendation from the Clinical Programs Committee,4 through its
4
The Clinical Programs Committee, or CPC, is a committee the Memorial Hermann
Physician Network (MHMD), an independent physician organization that is
associated with MHHS. MHMD serves to organize physicians to promote quality
6
Cardiovascular and Thoracic Subcommittee, which was chaired by Gomez at that
time, regarding the hospital’s use of STS data.
“STS data” refers to data that the Society of Thoracic Surgeons (STS) has
compiled in a database administered by the Duke Clinical Research Institute.
Among other things, STS tracks seven risk-adjusted procedures that are measured
based on information provided from physicians and hospitals. Participants—i.e.,
the hospital, clinic, or individual surgeon—collect and report data from their
treatment of patients, and then transmit that data to STS. STS analyzes the data and
processes it into a database that hospitals and healthcare providers across the
nation can use to make decisions about care.
The subcommittee chaired by Gomez recommended that the heart and
vascular service line at MH/MC present “STS data by facility to the CV surgery
subcommittee and each facility’s physician group.” Based on this recommendation
and at the prompting of CEO Alexander, Auzenne started developing “a process
for reviewing [the hospital’s] STS data (i.e., the raw data that would be reported to
STS).”
and safety, and it promulgates new policies and procedures for the system.
MHMD and its committees include physicians who have privileges in the hospital
system, and it provides some peer-review, development, and oversight functions
for the various areas of practice.
7
MHHS originally focused on mortality data because it “did not want to dive
into too many things initially” and “mortality was the most important.” Mortality
data was also a focus because, according to Auzenne, the hospital “had received
word from some of our cardiologists that they were concerned about [the]
mortality rate within the program being high.”
Auzenne realized in February 2009 that MH/MC had a “weak” process for
collecting the raw data that was necessary to report to STS. Among other concerns,
Auzenne stated that physicians were all documenting their cases in different and
inconsistent ways, which impacted what data could be submitted to STS, and he
also realized that physicians were not reviewing the data that was submitted to STS
and were not generally aware of what was submitted with regard to their cases.
E. Summer 2009, Concerns about the Raw STS Data Led to Peer-Review
of All CV Cases
On June 4, 2009, Auzenne and Alexander met with Dr. Rick Ngo, the chair
of MH/MC’s peer review and surgical performance improvement committee, and
Dr. John Abramowitz, the chief of staff. Alexander wanted to discuss concerns
raised by the raw STS data with Abramowitz and Ngo because they were “two
physician leaders,” and, “in case this turns into peer review, we wanted to engage
them early in the process.”
MHHS decided to have CV surgery cases reviewed by an outside consultant.
Dr. Ngo testified that it was not his idea to send the cases to an external evaluator,
8
and he felt that MH/MC’s Peer Review Committee was “circumvented” by the
hiring of the outside peer review consultant. The hospital felt it was important,
however, because, out of its four CV surgeons, Gibson was at that time the chief
medical officer for MH/MC and Gomez was a member of the board of the
Memorial Hermann Physician Network, MHMD, an independent physician
organization associated with MHHS. They did not send every case to external peer
review, just cases with mortalities, “major complications,” or prolonged ICU stays.
This review was done based on the medical records of the patients in the relevant
cases, along with the physicians’ documentation and other records from the
patients’ time in the hospital. These were sent to an organization called National
Peer Review for a full review.
F. Fall 2009, Gomez Entered an Agreement with Methodist West, MHHS
Made an Internal Presentation of CV Surgical Data
On September 14, 2009, Gomez signed a confidential Agreement for
Physician Services with Methodist West that made him an independent contractor
to provide physician services at Methodist. The Agreement also provided that he
would hold an “administrative” position as the “Co-Director of the Cardiovascular
Robotics Institute” and “Senior Advisor for Cardiovascular Surgery Service
Development at [the] West Houston campus.” This Agreement was executed in
advance of Methodist West’s officially opening its cardiovascular surgery
program, while the hospital was still building this program.
9
On September 25, 2009, Gomez was approached by his partner, Gibson.
Gomez testified that Gibson told him “that the hospital [MH/MC] had data that
showed that I had a high mortality [rate],” which “essentially [said] that I was a
bad surgeon.” Gomez testified that Gibson said the mortality rate data indicated
that there was a “safety issue” and that “they were concerned that the government
would look at these numbers and come in and shut down the [cardiovascular]
surgery program.” According to Gomez, Gibson told him that “because of those
reasons you’re going to be suspended or you’re going to be proctored.”
Proctoring is a process by which a surgeon is supervised while providing
services. Regarding the significance of having privileges suspended or being
“proctored,” Gomez testified:
[T]hat’s not something that you keep to yourself. It’s impossible.
That’s something that you have to report for the rest of your life as a
physician any time you get privileges at any other hospital and the
hospital you’re at everyone is going to know, every doctor, every
nurse all the—they’re going to know that you’re a suspended doctor, a
proctored doctor. And so basically your reputation is ruined.
Gomez testified that he “was in shock” following this conversation with Gibson.
Gomez decided to approach Dr. Ngo to discuss the concerns regarding his
mortality rate.
On September 27, 2009, Gomez called Ngo. According to both Gomez and
Ngo, Ngo was not aware of the data that MHHS was relying upon to determine
that Gomez had a high mortality rate that presented a “safety issue” to the hospital.
10
Gomez testified that he was concerned to learn that the surgical peer review
committee knew nothing about the individual surgeon mortality data because, in
his mind, MHHS employees “were subverting the process. . . . These types of
issues are supposed to go through the peer review process.”
Ngo testified that he was the chair of the Surgical Peer Review Committee,
and it was the committee’s job to review the performance of various medical
personnel on a case-by-case basis to evaluate whether the care given in each case
was appropriate or whether any problems needed to be addressed. However, he
was not concerned that he was unaware of the specific mortality data being used by
MHHS. He did not recall specifically asking that there be “a surgeon mortality rate
by CV surgeon created,” but he also stated, “[I]f someone approached me with that
idea, I would have agreed to that.” He also believed that the decisions about
“what’s supposed to be evaluated” would fall “under the umbrella of the quality
department at Memorial City,” calling it “more of an administrative duty.” Ngo
further testified that he was not concerned that someone at the hospital was “doing
something with data that [he] didn’t know about”:
It did not bother me because I don’t have the time or access to all that
data to do that initial analysis. But then it’s my job then to dissect that
data and depending on how that data looks and the methodology as far
as the acquisition of that data, I wouldn’t say that administration
engaging and trying to find this data bothered me. I think that’s a good
thing. I think it’s important to look at data in metrics, but the key is to
do it the right way with the right methodology.
11
Ngo also testified that when data raises performance concerns for a particular
physician, it was his committee’s job to investigate further, and he did so in
Gomez’s case.
On September 29, 2009, MH/MC held a cardiovascular surgery discussion
meeting with medical and administrative hospital leadership, including Auzenne.
This meeting involved the presentation of a slide show reviewing data for the CV
surgery program. It identified “Primary Areas of Concern” as including the 2009
“overall mortality rate” for the hospital’s CV surgeries of 7.1%, comparing that
mortality rate to national averages, and it identified “[t]wo CV surgeons [as] the
primary drivers in the unfavorable mortality rate.” The surgeons were identified
only by number—one surgeon’s number was listed next to “40%” and another’s
was listed next to “11.1%.” The slide show also contained data reflecting the
“current situation” in terms of total volume of surgeries for the hospital and
volume by surgeon from 2005–2009, comparing them to national averages. Some
of this data was risk adjusted and some of it was not.
On another slide in this presentation, Auzenne presented a “Risk Adjusted
Observed to Expected Ratio” (also referred to in testimony and presentations as the
“O/E” ratio) for mortalities for four surgeons, again identified only by number.
The slide stated that a ratio greater than one—indicating that more deaths were
observed to have occurred than would be expected—was “unfavorable.” The data
12
showed that two surgeons had performed better than that marker, with a ratios of
zero and 0.0874142, while two surgeons’ performance fell below that standard,
with ratios of 3.94624 and 7.65733. Again, the surgeons were identified by number
only. This slide also showed a “facility overall” ratio of observed to expected
mortalities of 2.57661, and it contained a notation stating, “Average STS O/E ratio
for like sized Cardiovascular Surgery Programs is .08 to 1.2 [with] 1,200 surgeons
working in more than 600 hospitals.”
The next slide reflected “Operative Mortality within 30 days” for each of the
four surgeons, again identified only by number, and the hospital total from 2005
through 2009, and it provided for comparison the “Cleveland Clinic 2008
Mortality Rates (emergent and non-emergent).” Finally, there was a slide showing
the “2009 Operative Mortality Percentage by Physician,” with the four surgeons
identified by number, breaking down “total mortalities” with both a number of
procedures performed and then a percentage reflecting the mortality rate, and then
performing a similar breakdown across several specific risk-adjusted procedures.
On October 23, 2009, motivated in part by the complaint Gomez had made
to Ngo prior to the slide show, there was another cardiovascular surgery discussion
meeting in which Auzenne presented Ngo with essentially the same presentation
from September 29. Ngo examined the data generated by Auzenne, and he testified
that:
13
the first part of the slide that jumped out to me was Bullet Point No. 2
[which stated that “[t]wo CV surgeons are the primary drivers in the
unfavorable mortality rate” and identified two surgeons, by number,
as having 40% and 11.1% mortality rates]. In our world the word
“mortality” jumps out. But, you know, the very clear profound
statement of two CV surgeons are the primary drivers of this, you
know, unfavorable mortality rate, that’s the item that jumped out at
me.
Ngo testified that when he originally viewed the slide, he “didn’t know who they
were directing it at because I don’t know [who] the five digit
identifier . . . pertained to,” but Auzenne later shared with him that Gomez was one
of the two CV surgeons in question.
Ngo asked Auzenne and Dr. Bobbi Carbonne, who was also in a position of
administrative leadership at MH/MC, questions regarding the data such as “where
did that statement come from” and “what was your process to generate that
conclusion.” Ngo also expressed concern that, “by [their] own definition and
metrics,” Dr. Gibson should also have been reflected as a surgeon with a
concerning mortality rate, but he was not. Ngo stated that, to the extent data might
be used to “make one surgeon reveal[ed] to be a problem versus another not,” that
would be a problem, stating, “It’s just not right. It’s not the fair and objective thing
to do.” Ngo could not remember the “exact verbal response” to his questions
regarding why Gibson’s individual mortality rates were not identified as a driver of
the overall mortality rates, but he remembered that he asked for “the ability for our
[peer review] committee to review every single case of the four surgeons that were
14
involved that Memorial City’s administration used to generate the data and let us
review each individual case on our own and grade them on our own.”
Ngo testified at trial that, looking back, he was bothered by what had
happened:
You know, Dr. Gibson and [Dr. Michael] Macris [the two other CV
surgeons at MH/MC] at the time were—well, Dr. Gibson, I believe,
he held some very high physician/volunteer/administrative, maybe
even paid positions, including at some point being Chief Medical
Officer for Memorial City [Hospital], and so it reeks of favoritism.
Ngo testified that, over the next two or three months, the Surgical Peer Review
Committee was able to review all of the surgical cases, i.e., all of the cases from
which the raw data was taken.
On October 27, 2009, there was a CV surgery quality review meeting.
Gomez characterized the meeting as a “peer-review” meeting to review “what the
hospital was calling my STS data.” This meeting was attended by Gomez, Ngo,
Carbone, and Abramowitz in addition to Auzenne. There were no statistics
presented at this meeting, just raw data. Auzenne testified that when Gomez saw
his own mortality data, “he got upset,” and he stated that “this data is statistically
invalid.” Ngo and Gomez felt that the hospital needed to look at a broader period
of data, not just for one year, and that the hospital should be careful to look at risk-
adjusted data.
15
On November 11, 2009, there was a cardiovascular surgery meeting in
which the participants, including Auzenne and the CV surgeons, reviewed
hospital-wide data for the CV surgery program. No individual surgeon data was
examined as part of the meeting, but each surgeon got a sealed and private
envelope containing his or her own raw data.
On December 17, 2009, the CV surgeon data and external peer review
results were presented to Dr. Ngo’s Surgical Peer Review Committee. Ngo
requested that Auzenne present the non-risk-adjusted mortality data to his
committee and to all four CV surgeons. The peer review process confirmed there
was room for improvement but no need for corrective action.
G. 2010 through 2011, Peer-Reviews are Completed, Gomez Continued
Practicing at MH/MC
On February 9, 2010, there was another cardiovascular surgery meeting and,
similar to what occurred in November 2009, the presentation focused on hospital-
wide performance markers. Again, the CV surgeons got their individual data by
envelope, with none of the physicians seeing the individual data of any other
physician, but all seeing the performance markers.
Also in February 2010, Ngo, as the chair of the peer review committee,
concluded the months-long investigation into the concerns over the quality of the
CV surgery program, including Gomez’s cases that had resulted in mortalities. Ngo
and the committee concluded that there was no “quality of care issue with any of
16
the four surgeons that had their data presented.” Specifically, the committee
determined that there was no need for “any proctoring or changing of privileges or
anything and the go-forward recommendation was that we would, as we did with
every surgeon, continue to closely track and trend and monitor the care of their
future patients.”
Ngo testified that his committee also made recommendations regarding the
surgeon mortality data used by Auzenne. Ngo stated, “One of the major areas that
we thought in the process that was extremely flawed was the lack of risk
adjustment with each of these individual cases” because “every single case is
different. There’s a different level of acuity, especially in the specialty that’s as
complex as cardiovascular surgery.”
Ngo also testified that the committee’s recognition of those complex factors
that are considered on a case-by-case basis led to its recommendation that, going
forward, MHHS rely more on STS data, i.e., data that had been risk adjusted rather
than raw data, stating:
[I]n looking at this data we ask what governing society in this country
that kind of determines quality metrics and evaluations and so forth
for cardiovascular surgeons and that’s the Society of Thoracic
Surgeons. They have a very clear process and methodology on how
to risk adjust individual cases. . . .
Some surgeries and some patients are just harder than others.
And so when you’re comparing the hardest patient in a situation to
one that’s a lay-up and a slam dunk, that’s not fair.
17
Regarding Gomez specifically, Dr. Ngo testified, “[I]n the review of those,
you know, 20 some-odd cases of Dr. Gomez, there were some where we did feel it
could have been an area for particular improvement. But in looking at all of those
we didn’t feel that there was a major issue with his quality of care.” Ngo testified
that sharing overall surgeon mortality data that was not risk adjusted was
“absolutely not” the right thing to do “because that would hinder referral patterns,
damage reputations, et cetera.” Without identifying any particular use of the data
by MHHS, Ngo testified generally that continuing to show surgeon mortality data
without risk adjustment to cardiologists and those who refer for CV surgeries
would be “atrocious, damaging, [and] way over the line.” Regarding mortality
data, Ngo testified that using mortality data—i.e., “if a physician has a hundred
surgeries in a year and four of them die”—as a starting point in evaluating areas for
improvement was appropriate: “There’s nothing inappropriate in saying that’s a
four percent mortality rate and the next step would be to individually look at each
case.” Ngo testified that that was what his peer review committee had done in this
case. By contrast, the data slide shows and surgeons’ meetings had not used only
risk-adjusted data but had included raw data.
On February 18, 2010, Dr. Ngo sent each CV surgeon, including Gomez, a
letter stating that the issues considered during the third-party review were closed.
Gomez testified that he was relieved by the peer review committee’s finding, but
18
the peer review process was “difficult” because he felt that “the whole focus was
Dr. Mike Gomez, is he a bad surgeon.” Gomez stated that when he received the
notice from Ngo in February 2010 about the findings of the peer review committee
determining that there were no safety concerns regarding his surgical abilities, he
thought the issue was resolved: “I thought, okay, they understand, you know, what
they did wasn’t right. . . . [T]he way they were looking at the numbers wasn’t—it’s
not the right way to do it.”
Gomez testified that, for the next year and a half, he had no indication that
MHHS employees Auzenne and Alexander were continuing to create and use
individual surgeon mortality data, contrary to Ngo’s recommendation from the
peer review committee.
H. November 1, 2011 Meeting of Cardiovascular and Thoracic Surgery
Subcommittee and the Auzenne Statement
On November 1, 2011, the Cardiovascular and Thoracic Surgery
Subcommittee held its quarterly meeting. According to the minutes, approximately
nineteen committee members or interested parties were present, including Gomez.
Gomez, however, testified that there were thirty to forty people present.
The power point presented at this meeting included a segment on STS data
review. It included a slide showing heart surgery volume by surgeon for twenty
MHHS surgeons, who were identified only by a letter. There was a slide showing
the “distribution of predicted mortality risk in STS adult cardiac surgery database
19
2010 by procedure,” and there was a chart showing how the actual observed
performance of each of the twenty surgeons, again identified by number, compared
to STS’s predicted mortality and complication rates by procedure type.
Gomez testified that Dr. Macris, who was by that time the chair of the
Cardiovascular and Thoracic Surgery Subcommittee, “again” used a 2010 version
of the individual surgeon mortality data at the November 1, 2011 meeting. Gomez
testified that, as before, at the beginning of the presentation each surgeon received
an envelope “to let them know which surgeon they were” in the data shared during
the presentation. This presentation did not include any “overall” mortality rates—
it looked at the raw numbers of individual doctor mortality rates, as opposed to
STS’s risk-adjusted procedures. Gomez testified that, after the presentation was
over, “we had a discussion about this lie. I got up and said that the data wasn’t
accurate[.]” Among other issues, Gomez testified at trial that the data presented in
this meeting attributed to him a surgical death that he had not been responsible for,
and Gomez believed, in any event, that the data was not supposed to be used any
longer.
Gomez testified that when he objected that the data “wasn’t statistically
accurate or valid,” Dr. Macris “looked at me and made a gesture to me and said,
‘Only the surgeons that look bad need . . . to be concerned.’” Gomez stated that
Macris’s comment “made it pretty clear that I was one of the red flagged
20
[surgeons]” and that “everybody at the committee knew that I was one of the red-
flag surgeons.”
Following the November 1 meeting, Gomez testified that he “was
upset . . . when this data was presented again,” so he spoke to Auzenne and asked
him “why is this misleading data . . . being shown again?” Gomez believed that
the use of the individual surgeon mortality data had stopped in 2010 following
Ngo’s recommendation. However, Gomez testified that Auzenne told him after the
November 1meeting,
that he had spoke[n] to CEO Keith Alexander and they had discussed
it and they felt that the data needed to be shared, that we needed to be
a transparent organization, that this was a safety issue, a safety issue,
and that means they can do what they will with the data and that he
was going to show it and had shown it to cardiologists at cardiology
meetings and other physicians who referred to me so they can make
informed decisions when they refer patients.
Gomez testified that he understood Auzenne to be saying that he had been
showing the data to Gomez’s referring doctors since 2010, and Gomez stated that
he “spoke to several doctors after this and others and was able to confirm that what
[Auzenne] told me was exactly what he was telling me.” Gomez testified that it
was “difficult” to hear that this had been going on for the past eighteen months,
“but it made it pretty clear what was happening, why I was seeing a decrease in my
surgical bodies over that time period, so it kind of made sense; and I just was very,
21
very upset that again that the peer review process had been subverted and again
that my reputation was being ruined.”
I. 2012, The “Whisper Campaign” Led Gomez to Resign his Privileges at
MH/MC
Berman testified that, despite doctors’ previously high opinion of Gomez
prior to 2009, “amongst the cardiologists” affiliated with MHHS, there was
eventually a “general consensus” that “Dr. Gomez has a high mortality rate.”
Berman was asked:
Q. How real was this whisper campaign that you were seeing?
A. It was real.
Q. What do you mean by that?
A. It means it affects your—it affects—I wouldn’t say my opinion,
because I like to speak for myself. But I think knowing other
cardiologists, a small community, I think it affected their
decisions about who they would choose for a surgeon.
Q. Mortality data, how significant is that to any physician when
you’re talking about a surgeon?
A. It’s everything. I mean, a patient walks in the hospital, they
want to make sure they leave the hospital. One death is more
than you want.
Q. Was there any doubt that the data, wherever it was coming
from, whatever it showed, was coming from Memorial
Hermann/Memorial City employees?
A. I would think that’s the only place it could come from.
22
Berman went on testify that the gist of the statements about Gomez was that “he
had excessive mortality, which would imply he’s not a good surgeon.”
However, Berman also testified he never saw or heard any data relevant to
Gomez’s individual surgical performance. Berman testified that he attended
cardiology department meetings and meetings for the Clinical Programs
Committee’s cardiology subcommittee (which was separate from the
cardiovascular and thoracic surgery subcommittee) and he never saw or heard any
comment from MHHS personnel about any individual surgeon’s patient outcomes,
including Gomez’s. Berman could not identify the source of the cardiologists’
“consensus” that Gomez had high mortalities.
Sam-Sin, who was still employed by MHHS in 2012, overheard a
conversation between Gibson and Macris in which Macris “basically insinuated
that he didn’t want to have Dr. Gomez as a surgeon, and that Dr. Gibson was the
one, usually, to clean up the messes after Dr. Gomez.” Sam-Sin was surprised to
hear Macris’s comment because, although she was aware of doctors who “were
responsible for some really bad outcomes,” she had “never heard anything like that
about Dr. Gomez” prior to Macris’s statement.
Portia Willis testified that MHHS later instituted a “hiatus” in its marketing
of Gomez. When Willis asked why, her boss told her, “I just left administration, I
just got out of a meeting, and I can’t tell you anything.” However, Willis’s boss
23
also “suggested” “something about surgical ability.” Willis testified that it was “a
big deal” to “question surgical abilities and [then state] that for the time being there
would be a complete pause” in marketing of that physician.
From his perspective on the peer review committee, Dr. Ngo testified that he
was “not aware of Memorial Hermann treating Dr. Gomez unfairly as far as the
letter of the law and the prints, but there’s also a lot of body language and tone[.]”
He was not personally aware of any employee of Memorial Hermann discussing
Gomez’s mortality rates or skills as a surgeon outside of the peer review committee
meetings, and, as far as he was aware, no Memorial Hermann employee spoke ill
of Gomez, but instead “actually spoke very highly of him.”
Nevertheless, Gomez testified that in early 2012, at a “general
surgery/cardiovascular combined committee meeting,” Alexander told Gomez,
“you can take your practice and move it on down the road.” Gomez testified that,
by this time, his practice was “[a] pretty damaged practice.”
In April 2012, Gomez resigned his privileges from MHHS and moved his
practice entirely to Methodist, where he had had privileges since 2009.
Dr. Todd Price, who was by that time acting as the chief of medicine at
MH/MC, testified regarding the end of the partnership between Gibson and Gomez
around that same time, stating that he was visiting the hospital when Gibson pulled
him aside and “told [him] of the destruction of the practice between him and Dr.
24
Gomez.” Price was told that Gibson and Gomez would no longer be working
together, that “they were going to be splitting up, that it would be because of
quality, and maybe other financial matters.” By “quality,” Price meant that he
understood that there were concerns about “quality of care” such as “the patient
outcomes, good versus bad.”
J. Gomez Filed the Instant Lawsuit
On September 17, 2012, Gomez and Gomez P.A. filed suit. Gomez filed
suit against MHHS alleging causes of action for business disparagement,
defamation, illegal restraint of trade, tortious interference with prospective
business relations, and conspiracy. He sought compensatory damages, statutory
treble damages, and exemplary damages.
The foregoing evidence concerning the alleged defamation based on the use
of the misleading individual surgeon mortality rates and the whisper campaign was
admitted at trial.
Gomez also introduced testimony from his damages expert Lara Carter, a
forensic accountant. Carter testified that she evaluated the financial impact of the
defamation and disparagement on Gomez’s practice, specifically the lost profits
associated with the decline in his cardiothoracic surgical activity. Carter testified
that she compared Gomez’s practice prior to the disparagement to his practice after
the disparagement and that she used Gomez’s records regarding the procedures that
25
he had performed both before and after the disparagement. She also testified that
she did not consider Gomez’s vein practice5 because it “can also be done by a
physician’s assistant or nurse practitioner” and because “it’s not the core of Dr.
Gomez’s practice or what he went to school to do.” Carter further stated that, in her
experience consulting with other medical practices, doctors frequently maintain
similar cosmetic “side” businesses, and, because such procedures can be performed
by nurse practitioners, doctors are “able to maintain those two businesses [the main
practice and the cosmetic side practice] simultaneously without the cosmetic
practice interfering with their primary practice.”
Carter testified that she also emphasized Gomez’s cardiothoracic surgery
practice in calculating the lost profits because Gomez told her that was “his
passion” and what “he wanted to do.” She also considered his “specific training in
robotic surgery.” She also considered various statements, tax returns, affidavits,
records of procedures performed at Methodist West, and other materials. Carter
researched market data in addition to the “source” materials provided by Gomez,
“to get an idea of what the market for cardiothoracic surgery was, what people
were saying in the industry about the surgery, about the number of surgeons out
5
In addition to his practice as a CV surgeon, Gomez had a separate practice that did
various vein procedures dating back at least until 2005. Even after he left MH/MC
and began practicing solely at Methodist West, Gomez continued to operate his
separate vein practice.
26
there, about what the demand was, just to get an indication of what the overall
environment was.”
Carter testified that Gomez used Gomez P.A. for billing, accounting, and
liability purposes. She testified that she treated the “P.A. the same as [Gomez]
individually” because, as a solo practitioner, Gomez and Gomez P.A. were “more
or less . . . the same person.” She evaluated data from 2004 through 2016 and
“used a methodology called ‘lost profits’” to create “an estimate of what Dr.
Gomez’s practice would look like based on the information had he not had this
damage to his reputation.” She extrapolated what his practice would have looked
like “had it been able to continue from 2008 on,” considering “what it would have
earned, what the cost associated with earning those revenues would be” so that she
could calculate what his profits would have been. She then looked at what actually
happened. She subtracted the actual profits from the profits that she estimated
Gomez would have earned “but for” the defamation.
She based her calculations on the determination that Gomez could perform
258 surgeries a year “given the fact that a lot of the procedures would be robotic
which can be faster and he also has a broad range of surgical procedures that he
can perform.” Carter testified that Gomez had performed 288 surgeries in 2004,
and his partner had performed 260 that same year. In 2005–2007, Gomez was
training on the robotic equipment and had started his vein clinic, so he had a
27
decrease in procedures. Carter stated that between 2009 and 2010, “there was a
significant decline in his practice in the number of procedures he performed and
the related collections,” so 2010 was the year that she began calculating lost
profits. Regarding future lost profits, Carter calculated a range of damages
because, “given the context and given the fact that we don’t exactly know what the
lingering effects of the damage to Dr. Gomez’s reputation are and will be in the
future, I felt a range was appropriate.”
Carter testified that, based on the data she examined, she believed that
Gomez should have been able to achieve the 258 procedures a year if he had been
“allowed to grow his practice uninhibited.” She saw no indication that his practice
had begun to recover, stating, “In fact, there continues to be a decline.” She
testified to a range of damages based on a variety of scenarios projecting no
growth of his practice, a 4.6% rate of growth in the event that he would have been
able to recover some of his practice in the future, or a more conservative approach
in which she considered that he would not have been able to achieve the 258
surgeries a year had the defamation never occurred. She estimated that his damages
could range from approximately $2 million to $5.6 million.
Carter further testified that she considered “other probable causes” that
could have accounted for the lost profits. She considered general market
conditions and Gomez’s own actions, but she determined that “there was no
28
indication that there was another cause for [the] decline [in his practice] other than
the defamation and the damage to his reputation.” She stated that, when she
reviewed the data for the other surgeons at MHHS, Macris and Gibson, Gomez had
similar numbers of procedures until 2009, when the numbers began to diverge.
She testified that both Macris and Gibson had experienced an increase in their
practices since 2009, but Gomez’s practice had declined. Based on this data,
Carter concluded that there was no market-driven decline.
Carter addressed representations from MHHS that Gomez was making more
money now than he did before the defamation. She testified that, in addition to his
present income, Gomez should also have realized income from a thriving
cardiovascular surgery practice, which he had not been able to do because of the
defamation. She testified that the income Gomez made from his vein practice
would not have cut into his surgical practice because, if the surgical procedures
had been available, he could have turned over the vein procedures to a nurse
practitioner. Carter also testified that the vein practice is not driven by referrals
from the same source as the cardiovascular surgery, so the vein practice income
was not as susceptible to damage from the defamation and disparagement as
Gomez’s surgical practice was.
Other witnesses testified regarding damages as well. Former colleagues, like
Berman, testified that, at times during his last couple of years at MHHS and as a
29
result of the deterioration in his reputation, Gomez was “very stressed, very
frustrated, very angry and worried.” Berman testified that it was “very, very
upsetting” to watch something like that happen to a colleague and friend.
Pena, who had taken the concerns mentioned by Todd to her boss, testified
that, looking back, she “was disappointed in [herself] too, that I went to my boss to
block—basically, be careful about employing him [at Methodist].” She testified
that she saw how everything impacted Gomez, stating that “he was stressed and he
was disappointed and he was angry.” She testified:
So what I saw with Dr. Gomez was a person who I had seen over the
course of years now who had developed a practice, developed a
reputation, had built up a name for himself, had referral volume, he
had, you know, marketing—marketing was putting dollars behind
procedures that he was doing in general. And so what I—my personal
opinion, what I saw, was a person who felt like they’re trying to take
something from me that I have earned, and that was his name. That
was what I heard.
Gomez’s wife, Jennifer Gomez, testified about his distress. She recounted
receiving a call from him in September 2009, when he first learned that MHHS
was considering options such as proctoring him or suspending his privileges. She
said that she “could just hear . . . the just sadness and shock in his voice,” and she
remembered him saying, “I don’t think I’m going to operate anymore.” She had
never received a phone call like that from him before. During the four months that
the peer review committee was reviewing his clinical data, she testified that Gomez
was “extremely stressed”:
30
Well, not sleeping or oversleeping, one or the other. Just, you know,
not eating. He lost a lot of weight. . . . Pacing. He’s a pacer. I mean,
pacing back and forth, back and forth. Withdrawn. And that was
probably the hardest one for me. . . .
[He was j]ust withdrawn. Just, like, vacant, somewhere else,
just preoccupied. And, you know, his dad said the other day, and it
really struck me. He never made this anyone else’s burden. He never
was ugly. He never lashed out at me over it. He just stuffed it all
inside and went and crawled in a hole. So, yeah, that was hard to see.
Jennifer Gomez also testified that she saw him on November 1, 2011, when
he realized that MHHS was still using the individual surgeon mortality data. She
testified that he was frustrated and “blown away.” She said that neither of them
could believe what was happening because it was “[s]hocking. Just utter shock.”
When asked how he moved on in light of “what had been done with his practice,”
she stated:
I mean, it’s a process, right? You know, that initial shock, with time,
wore off a little bit. It’s kind of like, you know, when you have a big
loss in your life and, you know, you try and establish a new normal,
because that’s just the type of person he is. You know, he’s going to
try and make the best of a bad situation. But a sadness. Just a little
down and kind of going through the motions.
Jennifer testified that this was “[t]he polar opposite” of how he was before the
defamation. Before, “he was vivacious” and “going after it.” He felt “that he was
really doing what he was meant to do . . . and making his contribution.” She
testified:
I mean, he really loved his work. He loved his patients. And to not
be doing that left like a big hole in him. That’s the best way to
describe it like, like part of him had just been yanked out.
31
She stated that his vein practice has not “filled the hole”: “[H]e cares for his vein
patients, and, you know, he can help some of them alleviate their pain, and he cares
for them very much; but is it what cardiac surgery is to him? No. Not even close.”
Jennifer concluded:
I feel like some people know from a young age what they want to do.
Some people—I—in my opinion, it’s like a gift. I’m not that person.
I mean, I enjoy [my job], but I don’t know that it was like a gift. Do
you know what I mean? I feel like [cardiac surgery] was his gift. I
feel—I mean, [it] sounds kind of corny, but like God gave that to him,
and he felt like that was his way to give back. He really did. And
he—he was good at it.
And, you know, just to have that inability to do that, something
that you love, that you worked hard for, that you feel you’re a fit for.
It’s—it’s hard to even still see him now. I mean, there are times when
I honestly—there are just certain things that have broken my heart
over the years, just little incidences that make me sad. . . .
[Like,] in our neighborhood, he had just a great reputation and
people would refer their family members. And I remember when we
found out our neighbor across the street had something done and they
were just kind of hush-hush about it, and, you know, I mean, it was
obvious like, you know, they didn’t want his input. They obviously
chose not to talk with us and pursue him, and it made me feel bad for
him, because he knew but he never, like, said it to me, and I felt bad
for him.
Jennifer testified that two years before trial, after the defamation had
occurred, Gomez had to sit for renewing his cardiothoracic board certification, and
he was “restudy[ing] everything,” “staying up until 1:00 and 2:00 in the middle of
the night, busting his butt,” but “he looked at me and goes, [‘It’s] kind of crazy, I
mean, here I am, and do you even really think I’m a cardiac surgeon anymore?[’]”
32
She testified that he was “a little apprehensive about seeing some of the guys from
his fellowship.”
The jury charge stated, in relevant part:
Answer the following questions with respect to Byron Auzenne’s
alleged statement that “he had spoke[n] to CEO Keith Alexander and
they had discussed it and they felt that the data needed to be shared,
that we needed to be a transparent organization, that this was a safety
issue and that means they can do what they will with the data and that
he was going to show it and had shown it to cardiologists at
cardiology meetings and other physicians and who referred to me so
they can . . . make informed decisions when they refer patients.”
1. Did Memorial Hermann publish the statement?
Publish means intentionally to communicate the matter to a person
other than Dr. Gomez who is capable of understanding its meaning.
Regarding Todd’s statement to Pena that “I heard bad quality, high mortality
rates, unnecessary surgeries,” the jury likewise was asked whether the statement
was published. There were also questions submitted to the jury asking whether the
same statements by Todd and Auzenne disparaged Gomez P.A.
Finally, the jury charge asked, “Do you find by clear and convincing
evidence that, at the time of the statements listed below Memorial Hermann knew
it was false as it related to Dr. Gomez, or made the statement with reckless
disregard as to its falsity?” The charge asked the jury to make this finding with
regard to both Todd’s statement that “I heard bad quality, high mortality rates,
unnecessary surgeries” and Auzenne’s statement made to Gomez following the
33
November 1 meeting that “he was going to show [the data] and had shown it to
cardiologists at cardiology meetings and [to] other physicians.”
The jury found in favor of Gomez on his defamation claims and Gomez
P.A.’s business disparagement claims. The jury rejected Gomez’s restraint-of-
trade claim. In response to the question asking whether the jury found clear and
convincing evidence that the Todd and Auzenne statements were made knowing
that they were false or with reckless disregard as to their falsity, the jury answered
“No” for the Todd statement and “Yes” for the Auzenne statement.
The jury likewise awarded Gomez and Gomez P.A. compensatory and
exemplary damages. Specifically, the jury awarded Gomez $304,500 for past
injury to his reputation and $700,000 for probable future injury to his reputation
arising out of the defamatory statement made by Todd. The jury also awarded
Gomez $456,750 for past injury to his reputation, $1,050,000 for probable future
injury to his reputation, and $365,000 for past mental anguish in connection with
the defamation by the Auzenne data. The jury likewise found malice in connection
with MHHS’s use of the Auzenne data and awarded exemplary damages of
$500,000.
The jury awarded Gomez P.A. $304,000 in past lost profits and $700,000 in
future lost profits for the disparagement related to Todd’s statement and the
whisper campaign. The jury awarded Gomez P.A. $456,750 in past lost profits and
34
$1,050,000 in future lost profits for the disparagement related to the Auzenne data.
The jury further made an affirmative finding of malice in connection with the
Auzenne data and awarded Gomez P.A. $500,000 in exemplary damages.
The jury indicated that the verdict was not unanimous. However, it also
provided an additional certification that the jury was unanimous in answering
questions regarding malice in connection with the Auzenne data and the awards for
exemplary damages.
The trial court rendered its final judgment based on the jury’s verdict. The
trial court also ruled, in the final judgment, that the defamatory statements were not
covered by qualified privilege. It awarded damages consistent with the jury’s
verdict plus pre- and post-judgment interest and costs.
Analysis
A. Publication
In its first issue on appeal, MHHS argues that the allegedly defamatory
statement by Auzenne as identified in the jury charge was not published to a third
party. The jury charge set out this statement as follows:
[Auzenne] had spoke[n] to CEO Keith Alexander and they had
discussed it and they felt that the data needed to be shared, that we
needed to be a transparent organization, that this was a safety issue
and that means they can do what they will with the data and that he
was going to show it and had shown it to cardiologists at cardiology
meetings and other physicians and who referred to me so they can . . .
make informed decisions when they refer patients.
35
The charge asked, “Did Memorial Hermann publish the statement?” It defined
“publish” as meaning, “intentionally to communicate the matter to a person other
than Dr. Gomez who is capable of understanding its meaning.”
The statement set out in the charge quotes Gomez’s testimony regarding his
conversation with Auzenne. During deliberations, the jury asked, with regard to
this question, “[D]oes the court want to know if the exact statement as quoted was
published or if the data referred to in the statement is being published?” The trial
court responded, “The jury is instructed to answer Questions2b(1) and 3b(1) to the
best of the jury’s ability as the jury understands the questions.” The jury found
that the statement was published.
1. Standard of Review
This issue is essentially a no-evidence point, as MHHS asserts that the
statement identified in the jury charge was not published as a matter of law.
Neither party challenges the adequacy of the charge in this case, and the statements
of law contained in the charge are generally correct; thus, the sufficiency of the
evidence is measured against the charge actually submitted, not some other law left
unidentified in the charge. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).
We review no-evidence points by considering the evidence in the light most
favorable to the verdict, disregarding evidence contrary to the verdict unless a
reasonable jury could not. Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018);
36
City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). “More than a
scintilla of evidence exists when reasonable and fair-minded people could reach
different conclusions based on the evidence.” Anderson, 550 S.W.3d at 616 (citing
Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014)). It is the jury’s role to
evaluate the credibility of the witnesses and reconcile any inconsistencies or
conflicts in the evidence, and the jury may “believe all or any part of the testimony
of any witness and disregard all or any part of the testimony of any witness.” Id.
(quoting Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 774–75 (Tex.
2003)); City of Keller, 168 S.W.3d at 819–20. “We must uphold the jury verdict if
any reasonable version of the evidence supports it.” Anderson, 550 S.W.3d at 616.
“Actionable defamation requires . . . publication of a false statement of fact
to a third party,” in addition to other elements. Id. at 617–18 (setting out elements
of defamation); see also Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d
167, 170 (Tex. 2003) (“To prevail on a business disparagement claim, a plaintiff
must establish that (1) the defendant published false and disparaging information
about it, (2) with malice, (3) without privilege, (4) that resulted in special damages
to the plaintiff.”). “‘Publication’ occurs if the defamatory statements are
communicated orally, in writing, or in print to some third person who is ‘capable
of understanding their defamatory import and in such a way that the third person
did so understand.’” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex.
37
2017) (quoting Austin v. Inet Techs., Inc., 118 S.W.3d 491, 496 (Tex. App.—
Dallas 2003, no pet.)).
“[A]n allegedly defamatory publication should be construed as a whole in
light of the surrounding circumstances based upon how a person of ordinary
intelligence would perceive it.” Turner v. KTRK Television, Inc., 38 S.W.3d 103,
114 (Tex. 2000); see also Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (“It
is well settled that ‘the meaning of a publication, and thus whether it is false and
defamatory, depends on a reasonable person’s perception of the entirety of a
publication and not merely on individual statements.’”). “Because a publication's
meaning depends on its effect on an ordinary person’s perception, courts have held
that under Texas law a publication can convey a false and defamatory meaning by
omitting or juxtaposing facts, even though all the story's individual statements
considered in isolation were literally true or non-defamatory.” Turner, 38 S.W.3d
at 114.
2. Analysis
MHHS argues that the defamatory statement as set out in the charge was not
published to a third party. It argues that, because publication to a third party is an
essential element of Gomez’s defamation and business disparagement claims, and
the statement identified in the charge was not published as a matter of law,
Gomez’s defamation and business disparagement claims as they relate to this
38
statement also fail. In making this argument, MHHS asserts that the statement in
the charge must be read narrowly and that “[t]he charge cannot be construed to ask
the jury about unspecified statements about undefined ‘data’ to unidentified third
parties.” Rather, MHHS asserts that the “literal language of the jury charge limits
the scope of review,” and, by its own language, the statement identified in the
charge was made by Auzenne to Gomez and not to a third party.
The jury charge here identified the alleged defamatory statements made by
Auzenne by quoting a portion of Gomez’s testimony. Gomez testified that after
Ngo and the peer review committee reviewed his surgical mortality rates on a case-
by-case basis, determined that there were no quality of care concerns with regard
to Gomez’s performance as a surgeon, and recommended that MHHS quit using
the individual surgeon mortality data and instead conform its data collection and
review to those measures set out by the Society of Thoracic Surgeons, he thought
his issues with the misleading data were resolved. On November 1, 2011, the
Cardiovascular and Thoracic Surgery Subcommittee held its quarterly meeting and
presented a report on the STS 2010 Database Review.
Gomez testified that there were about thirty to forty people present at the
November 1, 2011 meeting, including doctors, administrators, and nurse
administrators. He testified that Dr. Macris again used a 2010 version of the
individual surgeon mortality data that identified individual surgeons using a code.
39
Gomez testified that, at the beginning of the presentation, each surgeon received an
envelope “to let them know which surgeon they were” in the data shared during the
presentation. He testified that, after the presentation was over, “we had a
discussion about this lie. I got up and said that the data wasn’t accurate[.]”
Among other issues, Gomez testified at trial that the data attributed to him in this
presentation included a surgical death that he had not been responsible for, and
Gomez believed, in any event, that the data was not supposed to be used any
longer.
Gomez testified that when he objected that the data “wasn’t statistically
accurate or valid,” Dr. Macris “looked at me and made a gesture to me and said,
‘Only the surgeons that look bad need . . . to be concerned.’” Gomez stated that
“made it pretty clear that I was one of the red flagged [surgeons]” and that
“everybody at the committee knew that I was one of the red-flag surgeons.”
When Gomez later confronted Auzenne to question why the misleading
individual surgeon mortality data was still being used, Gomez testified that
Auzenne told him:
that [Auzenne] had spoke[n] to CEO Keith Alexander and they had
discussed it and they felt that the data needed to be shared, that we
needed to be a transparent organization, that this was a safety issue, a
safety issue, and that means they can do what they will with the data
and that he was going to show it and had shown it to cardiologists at
cardiology meetings and other physicians who referred to me so they
can make informed decisions when they refer patients.
40
Gomez testified that he understood Auzenne to be saying that he had been showing
the misleading data to Gomez’s referring doctors since 2010.
The jury charge specifically referenced this testimony, including Auzenne’s
admission to Gomez that he had provided the data “to cardiologists at cardiology
meetings and other physicians and who referred to [Gomez].” Gomez presented
evidence that the data was published by being used at several meetings, including
the one on November 1, 2011, at which approximately thirty to forty health care
professionals were present, and that Macris made it clear that Gomez was one of
the “red-flagged” surgeons.
Several doctors and other medical professionals testified that they were
aware of the individual surgeon mortality data and that they knew that Gomez was
identified by that data as a surgeon with a high mortality rate. For example,
Gibson, Gomez’s then-partner, knew as far back as 2009 that Gomez’s individual
mortality data numbers were a cause for concern at MHHS and said as much to
Gomez. Doctors Ngo and Macris also were aware that Gomez was identified by
the data as a problem surgeon. Gomez testified that Auzenne acknowledged that
he “was going to [the data] it and had shown it to cardiologists at cardiology
meetings and other physicians and who referred to me so they can . . . make
informed decisions when they refer patients.” Berman likewise testified that the
cardiologists came to believe that Gomez had high mortality rates. Finally, the
41
record contains copies of the slide shows and reports that used the individual
mortality data.
Furthermore, the doctors and other personnel to whom this data was
disseminated understood its defamatory nature. Ngo and Berman both testified
that evidence of a poor mortality rate would affect referrals and a doctor’s
reputation. Berman testified that he believed that Gomez’s mortality rate did
actually impact other cardiologists’ opinion of him. Data experts like Rachel
Dokholyan, a project leader for the STS databased, and Dr. Baron Hamman, a
cardiac surgeon and expert on cardiovascular quality metrics, testified that these
statistics were important and that doctors used the data to make decisions about
their patient’s care. Gomez himself testified that he objected to the improper data,
and Macris made it clear that Gomez was one of the “red-flagged” surgeons.
Viewed in the light most favorable to the jury’s verdict, we conclude that
there was evidence that MHHS, through Auzenne, published the individual
surgeon mortality data by presenting it to other doctors, who were capable of
understanding its defamatory import and who did in fact understand the data in that
way. See Anderson, 550 S.W.3d at 616; see also Rincones, 520 S.W.3d at 579
(“‘Publication’ occurs if the defamatory statements are communicated orally, in
writing, or in print to some third person who is ‘capable of understanding their
defamatory import and in such a way that the third person did so understand.’”).
42
MHHS further argues that defamation requires proof of a specific statement
and interpreting the charge in a non-literal way would be “unfair.” However,
“[w]e are to read jury instructions like jurors do—with common sense.” See Nip v.
Checkpoint Sys., Inc., 154 S.W.3d 767, 772 n.3 (Tex. App.—Houston [14th Dist.]
2004, no pet.); see also City of Brenham v. Honerkamp, 950 S.W.2d 760, 764
(Tex. App.—Austin 1997, pet. denied) (holding that reading jury questions “in a
common-sense manner” supported conclusion that jury question “fairly placed the
liability issue before the jury” and noting that “[t]he trial court has broad discretion
in submitting jury questions, subject only to the requirement that the submitted
questions fairly place the disputed issues before the jury”); Broughton v. Humble
Oil & Ref. Co., 105 S.W.2d 480, 485 (Tex. App.—El Paso 1937, writ ref’d)
(“Theoretical perfection of expression as to each isolated sentence is not the end
sought, else there would seldom be found unobjectionable instructions. Natural,
not strained, constructions should prevail.”). “If possible, we must interpret the
jury’s findings to avoid a ‘nonsensical result’ and in a manner that upholds the
judgment.” Nip, 154 S.W.3d at 772 n.3 (quoting Otis Spunkmeyer, Inc. v. Blakely,
30 S.W.3d 678, 685–86 (Tex. App.—Dallas 2000, no pet.)); see also Jackson v.
U.S. Fidelity & Guar. Co., 689 S.W.2d 408, 411–12 (Tex. 1985) (noting, when
case involved determination of fact, rather than determination of law, that “if the
43
jury findings are ambiguous or unclear, the appellate courts must try to interpret
the findings so as to uphold the judgment”).
Gomez identified specific defamatory statements—i.e., Auzenne’s use of the
individual surgeon mortality data. Nothing in the record indicates that the crux of
Gomez’s complaint was a statement that Auzenne made to him. Rather, the entire
case revolved around Auzenne’s use of the individual surgeon mortality data, even
after the Surgical Peer Review Committee and others recommended against its use.
The use of this data was referenced in the jury charge, and, as we discussed above,
the record contains evidence that the data was published to third parties.
We overrule MHHS’s first issue.
B. Causation of Damages
In its second issue, MHHS asserts that Gomez failed to establish causation
with respect to his claims of defamation and business disparagement arising out of
Todd’s alleged statement to Methodist West’s physician liaison, Pena, regarding
Gomez: “I heard bad quality, high mortality rates, unnecessary surgeries.”
In its fourth issue, MHHS argues that there was no evidence of causation
generally, asserting that there was no evidence of any loss of referrals caused by
defamation, no evidence that Gomez’s reputation was harmed by defamation, and
no evidence to support an award of past mental anguish.
We consider these issues together.
44
1. Standard of Review
These are both no-evidence complaints that we review by considering the
evidence in the light most favorable to the verdict, disregarding evidence contrary
to the verdict unless a reasonable jury could not. Anderson, 550 S.W.3d at 616;
City of Keller, 168 S.W.3d at 822, 827.
“Actionable defamation requires (1) publication of a false statement of
fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the
requisite degree of fault, and (4) that proximately caused damages.” Anderson,
550 S.W.3d at 617–18. Proximate cause encompasses both foreseeability and
cause in fact. Id.; Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex.
2010). “A defendant’s action is the cause in fact of damages ‘if it was a substantial
factor in causing the injury and without which the injury would not have
occurred.’” Anderson, 550 S.W.3d at 618.
“General damages include non-economic losses, such as mental anguish and
loss of reputation,” while special damages represent specific economic losses. Id.
(citing In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015)). “Non-economic damages
offer a pecuniary remedy for non-pecuniary harm and are not amenable to
calculation with ‘precise mathematical precision.’” Id. (quoting Brady v.
Klentzman, 515 S.W.3d 878, 887 (Tex. 2017), and citing Waste Mgmt. of Tex., Inc.
v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014)). Thus, the
45
jury has “latitude” in determining a non-economic damages award, but it is not
granted “carte blanche” in deciding the matter; rather, “the jury must award ‘an
amount that a reasonable person could possibly estimate as fair compensation.’” Id.
(quoting Bentley, 94 S.W.3d at 605, and Waste Mgmt., 434 S.W.3d at 153).
Regarding evidence of lost profits, the supreme court has held:
The rule concerning adequate evidence of lost profit damages is well
established: Recovery for lost profits does not require that the loss be
susceptible of exact calculation. However, the injured party must do
more than show that they suffered some lost profits. The amount of
the loss must be shown by competent evidence with reasonable
certainty. What constitutes reasonably certain evidence of lost profits
is a fact intensive determination. As a minimum, opinions or estimates
of lost profits must be based on objective facts, figures, or data from
which the amount of lost profits can be ascertained. Although
supporting documentation may affect the weight of the evidence, it is
not necessary to produce in court the documents supporting the
opinions or estimates.
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010)
(quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992)).
Regarding mental anguish damages, the record must contain “direct
evidence of the nature, duration, and severity of [the plaintiff’s] mental anguish,
thus establishing a substantial disruption in the plaintiff[’s] daily routine,” or
“evidence of a high degree of mental pain and distress that is more than mere
worry, anxiety, vexation, embarrassment, or anger.” Anderson, 550 S.W.3d at 618–
19. However, “[g]eneralized, conclusory descriptions of how an event affected a
46
person are insufficient evidence on which to base mental anguish damages.” Id. at
619.
2. Causation of Damages Arising from Todd’s Statement
In its second issue, MHHS argues that Gomez has “absolutely no proof that
[Todd’s] statement links causally to any award of damages” and that “[t]here is no
evidence that this statement connects to any reputational harm or lost profits from
fewer referrals.” This assertion misrepresents the nature of the evidence presented
at trial.
MHHS argues that Pena never testified that Todd’s statements affected her
opinion of Gomez, and it construes Pena’s testimony as stating that she merely
reported the concerns to the CEO of Methodist West and recommended extra
vetting of Gomez. This ignores Pena’s testimony that she “absolutely did believe”
Todd’s statements. Pena testified that she recommended, “I would be careful to
vet him because things like that don’t just come out of nowhere.” Pena also
testified that she believed the things Todd told her because “it was out there
already. It’s hard to explain. It was in the ether, it was out there. So in hearing
that, I absolutely did believe it. And as I said, because I witnessed it, you know, I
witnessed that happening and heard it from multiple physicians.” The fact that
Methodist West did eventually hire Gomez does not mean that his reputation
suffered no harm from the defamatory statements and the resulting extended
47
vetting process, as further evidenced by the fact that, at Methodist West, Gomez
performs fewer cardiovascular surgeries—surgeries for which he had trained and
which he had developed a highly marketable technique prior to the defamatory
statements made about him.
MHHS also relies on Pena’s testimony and the testimony of other doctors
indicating that Gomez had a good reputation and had been successful at Methodist,
arguing that there was no evidence that anyone believed Todd’s representations or
thought less of Gomez and, thus, there was no causation of harm to Gomez’s
reputation. Evidence that some people still had a good opinion of Gomez, however,
does not support a conclusion that he suffered no harm to his reputation or
business. MHHS’s representation of the evidence ignores Pena’s testimony that
she believed the representations that Todd made. It also ignores the testimony of
witnesses like Dr. Berman and others that the “whisper campaign” was real and
that it impacted Gomez’s reputation and business.
Berman testified that the gist of the statements about Gomez was that “he
had excessive mortality, which would imply he’s not a good surgeon.” Berman
also testified that the “end result” was that the patients Gomez used to receive from
Berman now went to see either Macris or Gibson. Berman also testified that other
cardiologists believed that Gomez was a bad surgeon and that the mortality data
affected their decisions to refer to Gomez. Sam-Sin testified that she overheard
48
Macris make disparaging remarks to Gibson about Gibson having to “clean up”
after Gomez. Willis testified that the hospital decided to withdraw marketing
support from Gomez and that her boss suggested that this was because of concerns
over his “quality of care,” which was “a big deal.” Carter, Gomez’s damages
expert, testified that Gomez’s CV surgery practice never approached the levels it
had reached before the publication of the defamatory statements and that most of
his practice remained in other thoracic surgeries and vein procedures. This
constitutes evidence that some people did believe the false information about
Gomez.
MHHS also argues that Gomez presented no evidence supporting the jury’s
award of lost profit damages. It asserts that there was no evidence that Gomez lost
referrals or business because of Todd’s statement to Pena and specifically noted
that Pena’s role “was to recruit and hire physicians—not to interface with patients
and make recommendations on surgeons.” MHHS argues that, because Methodist
ultimately hired Gomez and he continued to receive some referrals from other
doctors, there is no evidence that Todd’s statement caused Gomez to incur any lost
profits. MHHS’s argument ignores Gomez’s testimony that he did not intend to
quit practicing at MH/MC but that he eventually felt that he had no choice to resign
his privileges there. It also ignores the change in the nature of Gomez’s practice
after the false information was published. Gomez and Carter both testified that,
49
after the defamation, Gomez was performing significantly fewer cardiovascular
surgeries and that the nature of many of the surgeries and procedures he performed
required less skill than the surgeries he was performing before the defamation was
published. Thus, there was evidence that any losses attributed to the fact that he
only worked at Methodist could have been caused by the defamation forcing him
to leave MH/MC.
MHHS also ignores the entire testimony of Carter, who provided detailed
facts regarding the nature of Gomez’s practice both before and after the alleged
defamation. Furthermore, Pena herself acknowledged that, following the
defamation, she observed Gomez—who had previously been a sought after,
respected surgeon with good “referral volume”—struggle to defend his good name
and his surgical practice.
Specifically, Carter testified that Gomez suffered a total of approximately
$5.6 million dollars in lost profits. She supported these conclusions with data
regarding Gomez’s surgical referrals and number of surgeries performed both
before and after the defamation. The jury awarded Gomez $304,000 in past lost
profits and $700,000 in future lost profits attributable to Todd’s statement
representing circulating rumors that Gomez was a “bad quality” surgeon with
“high mortality rates, [and] unnecessary surgeries.” Thus, the apportioning of
$1,004,000 in damages resulting from Todd’s statement out of the total amount of
50
$5.6 million in damages testified to by Carter is not unreasonable. See Swinnea,
318 S.W.3d at 876 (holding that recovery for lost profits does not require “exact
calculation” but instead “must be shown by competent evidence with reasonable
certainty”; this is “a fact intensive determination” and must be “based on objective
facts, figures, or data from which the amount of lost profits can be ascertained”).
We overrule MHHS’s second issue.
3. Causation of Damages Arising from Auzenne’s Data
In its fourth issue, MHHS argues that “[t]here is no evidence of causation
generally.” MHHS argues that Gomez’s defamation and business disparagement
claims based on Auzenne’s statement “fail for lack of evidence that the unspecified
statements about data actually caused any harm.” MHHS asserts that Gomez
“never actually connected Gomez’s lower surgical numbers to any particular
instance of defamation.” See Brady, 515 S.W.3d at 887 (“Losing a job or business
opportunities . . . is not evidence of loss of reputation unless the evidence connects
it to the defamation.”). MHHS essentially argues that because there were multiple
possible reasons for Gomez to lose business, the evidence did not connect the loss
to the defamation. MHHS argues that Gomez’s “loss of referrals” theory of
recovery is “wildly speculative,” and it argues that no witnesses testified that they
had stopped or reduced their referrals to Gomez because of any concerns about his
reputation.
51
However, Carter presented evidence of the decline in Gomez’s referrals and
cardiovascular surgeries and assigned specific amounts of damages to that decline.
Gomez himself and others testified regarding the change in his reputation—that he
went from being highly respected to having numerous colleagues who thought he
was effectively a “bad” surgeon because of his mortality rate and ceased referring
patients to him. Carter also stated that there was a noticeable decrease in volume
in Gomez’s practice between 2009 and 2010, when Auzenne first used the
individual surgeon mortality data, that the lower volume continued for years, and
that Gomez’s surgical practice has never really recovered.
MHHS likewise argues that there is “no evidence that unspecified statements
about data connect to any harmed reputation,” noting that “the witnesses at trial
universally agreed that Gomez’s reputation is good” and that some doctors still
refer patients to Gomez. See id. (“[E]vidence of loss of reputation should be more
than theoretical. Showing that the community was aware of and discussed the
defamatory statements is not enough; there must be evidence that people actually
believed the statements and the plaintiff’s reputation was actually affected.”)
(internal citation omitted). Again, as set out above, this misconstrues the evidence.
Some doctors still believed that Gomez had a good reputation and was a good
cardiothoracic surgeon, but the jury was entitled to credit the numerous witnesses
who testified that other doctors came to believe that Gomez was a bad surgeon
52
with high mortality rates. The jury had “latitude” in awarding damages arising out
of the harm to Gomez’s reputation among his fellow health professionals. See
Anderson, 550 S.W.3d at 618.
MHHS also argues that there is no evidence supporting the jury’s award for
past mental anguish damages arising from the Auzenne statement. “Generally, an
award of mental anguish damages must be supported by direct evidence that the
nature, duration and severity of mental anguish was sufficient to cause, and caused,
either a substantial disruption in the plaintiff’s daily routine or a high degree of
mental pain and distress.” Brady, 515 S.W.3d at 891.
Here, many of Gomez’s professional friends and colleagues noted the
profound change in Gomez’s demeanor following the defamatory statements.
Berman testified that, at times during his last couple of years at MHHS and as a
result of the deterioration in his reputation, Gomez was “very stressed, very
frustrated, very angry and worried.” Berman testified that it was “very, very
upsetting” to watch something like that happen to a colleague and friend.
Pena testified that she saw how everything impacted Gomez, stating that “he
was stressed and he was disappointed and he was angry.” She testified:
So what I saw with Dr. Gomez was a person who I had seen over the
course of years now who had developed a practice, developed a
reputation, had built up a name for himself, had referral volume, he
had, you know, marketing—marketing was putting dollars behind
procedures that he was doing in general. And so what I—my personal
opinion, what I saw, was a person who felt like they’re trying to take
53
something from me that I have earned, and that was his name. That
was what I heard.
Significantly, Jennifer Gomez, Gomez’s wife, testified that her husband was
“extremely stressed” by the defamation, that it was an “utter shock,” and that it
was “exhaustive” for the “entire family.” She testified that Gomez was “not
sleeping or oversleeping, one or the other.” He was “not eating” and “lost a ton of
weight.” She testified that he paced and was withdrawn and “vacant.” Jennifer
stated that Gomez “just stuffed in all inside and went and crawled in a hole.” She
equated his losing his reputation as a surgeon and losing the ability to work as a
surgeon to “a big loss,” causing him to “establish a new normal.”
Jennifer testified that Gomez created the “new normal” but was “kind of
going through the motions,” which was “[t]he polar opposite” of how he was
before the defamation. Before, “he was vivacious” and “going after it.” He felt
“that he was really doing what he was meant to do . . . and making his
contribution.” She testified that Gomez’s career as a cardiac surgeon was like a
gift from God and having it taken away left a hole:
I mean, he really loved his work. He loved his patients. And to not
be doing that left like a big hole in him. That’s the best way to
describe it like, like part of him had just been yanked out.
She testified that the entire process caused him to question whether he was “even
really . . . a cardiac surgeon anymore” and left Gomez feeling “like he has this
huge scarlet letter on him.”
54
This testimony constitutes direct evidence that the nature, duration and
severity of mental anguish was sufficient to cause, and caused, either a substantial
disruption in Gomez’s daily routine or a high degree of mental pain and distress.
See Brady, 515 S.W.3d at 891. Gomez provided evidence of more than “mere
worry, anxiety, vexation, embarrassment, or anger.” See Anderson, 550 S.W.3d at
619. The stress and mental pain from the defamation caused sleep disturbances
and weight loss. It effected a material change in his outlook and “left a hole” in his
life.
In Bentley v. Bunton, the plaintiff spent time worrying at home and was
distressed about the impact the defamatory statements had on him and his family;
his wife testified that he lost sleep and would never be the same; and his demeanor
changed. 94 S.W.3d at 606–07 (concluding that plaintiff presented legally
sufficient evidence of mental anguish but remanding for reconsideration of
“excessive” multi-million dollar award); see also Anderson, 550 S.W.3d at 619
(stating that court eventually upheld suggested remittitur in Bentley “that left
$150,000 in mental anguish damages on the table”).6 Here, the evidence indicated
that Gomez likewise experienced a significant and extended change in his
personality. He worried that he could not provide for his family, he withdrew and
6
MHHS does not appear to argue that the mental anguish award was excessive,
merely that there was no evidence to support it. However, we note that the mental
anguish award here was $365,000, which is considerably less that the multi-
million dollar mental anguish award the supreme court found excessive in Bentley.
55
“crawled into a hole,” he felt like he was marked with “a huge scarlet letter,” he
had sleep disturbances and lost weight due to the stress. He moved on to a “new
normal,” but the loss of his reputation left a hole that has not been filled by other
professional endeavors. See also Anderson, 550 S.W.3d at 620 (upholding mental
anguish award based on testimony that accusation “basically destroyed” plaintiff,
causing a material change in personality and trouble sleeping and eating; that, for
plaintiff, it was “a two-year nightmare trying to get [his] life back and [his]
reputation back”; and that plaintiff “[w]orried about [his] 30-year career that had
been slandered all over town”).
Thus, we conclude that there was sufficient evidence of mental anguish
damages caused by MHHS’s use of the Auzenne data.
We overrule MHHS’s fourth issue.
C. Qualified Privilege
In its third issue, MHHS argues, in the alternative, that both the Auzenne
statement and the Todd statement were protected by qualified privilege.
1. Standard of Review and Relevant Law
There is a qualified privilege against defamation liability when a
“communication is made in good faith and the author, the recipient or a third
person . . . has an interest that is sufficiently affected by the communication.”
Burbage, 447 S.W.3d at 254 (quoting Cain v. Hearst Corp., 878 S.W.2d 577, 582
56
(Tex. 1994)); Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.
1995). This privilege is an affirmative defense. See Burbage, 447 S.W.3d at 254.
Thus the defendant bears the burden of proving privileged publication unless the
plaintiff’s petition affirmatively demonstrates privilege. Id. (citing Denton Pub.
Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970)). If the defendant establishes the
privilege, the plaintiff may nevertheless defeat the privilege by proving that the
defendant made the statements with actual malice. Id. (citing Dun & Bradstreet,
Inc. v. O’Neil, 456 S.W.2d 896, 898 (Tex. 1970)).
The parties stipulated that the question of whether these communications
were covered by privilege is a question of law. See id. (“Qualified privilege
presents a question of law when the statements at issue employ unambiguous
language and where the facts and circumstances of publication are undisputed.”).
However, Gomez argues that because the jury found malice, he has defeated
MHHS’s claim of privilege.
“Actual malice, in the defamation context, means ‘the making of a statement
with knowledge that it is false, or with reckless disregard of whether it is true.’” Id.
(quoting Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex. 1994)
(per curiam)). In considering whether a defendant acted with actual malice, the
focus is on the defendant’s attitude toward the truth, not his attitude toward the
plaintiff. Greer v. Abraham, 489 S.W.3d 440, 444 (Tex. 2016). “[P]roof of bad
57
motive or ill will is not enough.” Brady, 515 S.W.3d at 883; Hagler, 884 S.W.2d at
771–72 (“Actual malice in the defamation context does not include ill will, spite or
evil motive, but rather requires sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of his publication.”)
(internal quotation omitted).
To establish the qualified privilege, MHHS had to prove, among other
things, that the statements were made in good faith. Furthermore, Gomez could
defeat application of the privilege by establishing actual malice. We conclude that
the trial court properly ruled that the privilege did not apply to either Todd’s
statement or the Auzenne data.
2. Todd Statement
MHHS argues that the Todd statement is privileged because it was made
“between two interested parties for the purpose of cautioning Methodist that a
surgeon it was recruiting was the subject of concern involving his reputation and
skills,” and it asserts that there is no evidence about Todd’s state of mind when she
made the call to Pena. MHHS construe’s Pena’s testimony on the matter as
indicating that Todd made the call in good faith. However, this account is not
conclusively established by the evidence. Pena was asked:
Q. [D]id you question [Todd] about how in the world [she] as a
marketing person [would] be sharing this with anybody?
58
A. We knew each other personally and, you know, trying to be
succinct about it, Jenn just had her hands into everything. She’s
just a person in the know. And I did ask her but there was a
line that she would draw.
Q. Well, what’s the problem with saying there’s something really
bad about this doctor—mortality rate, quality of care, doing bad
things—but I’m not going to tell you the whole details? What’s
that tell you?
A. It left me concerned that I knew at that time Dr. Gomez was
talking to us. . . .
Pena testified that Todd “knew all the directors and the CEOs and she knew a
multitude of physicians and so she always, you know, had information that other
people wouldn’t normally have.”
Thus, this evidence supports a conclusion that Todd made the statement to
Pena in the capacity of their personal relationships and that Todd was conveying
information that was gossip and innuendo gathered around the office, rather than
information that Todd had an obligation to present to a competing hospital as part
of her job duties. This does not, as MHHS argues, establish as a matter of law that
Todd acted in good faith in disseminating this information.
MHHS also argues that, because the jury found no malice with regard to
Todd’s statement, there was no evidence of malice at all. This disregards the
nature of the jury’s finding. Question Seven asked the jury whether there was
“clear and convincing” evidence that the Todd and Auzenne statements were made
with MHHS’s knowing of their falsity or acting in reckless disregard for whether
59
the statements were true. Although the jury answered “no” as to the Todd
statement, the fact that the jury did not find “clear and convincing” evidence of
MHHS’s knowledge does not compel a conclusion that there was no evidence of
malice on Todd’s part with regard to her statement. The question of malice arising
out of the Todd statement was not otherwise submitted to the jury.
Finally, Gomez’s obligation to rebut the privilege with evidence of actual
malice arises only if MHHS mets its burden of establishing good faith. See
Burbage, 447 S.W.3d at 254. Here, we cannot say that MHHS met that burden.
The nature of Todd’s statement—passing on rumors that arose based on MHHS’s
knowing misuse of misleading data—and Pena’s testimony—asserting that Todd
communicated the rumors to her because they knew one another personally and
“[Todd] just had her hands into everything” and was “a person in the know” who
“always . . . had information that other people wouldn’t normally have”—indicates
that the statement was not made in good faith.
3. Auzenne Data
MHHS further argues that the Auzenne statement is likewise privileged and
that Gomez offered no evidence of actual malice that would defeat the privilege.
However, the jury made several findings of actual malice regarding MHHS’s use
of the Auzenne data, and, contrary to MHHS’s argument, those findings are
supported by legally sufficient evidence.
60
MHHS argues that Auzenne used the data to improve transparency and to try
to help treat patients with a higher quality of care. However, MHHS’s arguments
on this issue do not take into account the evidence that at least some of the data
Auzenne used was statistically unsound and not the type of data that was reported
by STS, the acknowledged authority on the issue of cardiovascular surgical
statistics. Gomez testified that, even after the peer-review process was completed
in 2010 and the committee found no concerns regarding his performance, Auzenne
continued to use unsound data. This is evidence that Auzenne and MHHS both
knew, or should have known, not to use the objectionable data. Furthermore,
Gomez testified that the data in the November 1, 2011 meeting attributed a
mortality to him that he was not responsible for, and because of the small sample
size, this misattribution had a profound effect on his mortality data, pushing him to
the “red flag” zone. Thus, there is evidence that both Auzenne and MHHS acted
with, at the least, reckless disregard for the truth. See id. (“Actual malice, in the
defamation context, means ‘the making of a statement with knowledge that it is
false, or with reckless disregard of whether it is true.’”).
Because we conclude that MHHS did not establish that it acted in good faith,
and, in fact, Gomez presented evidence of actual malice, we conclude that the trial
court did not err in holding that the qualified privilege did not apply in this case.
We overrule MHHS’s third issue.
61
D. Sufficiency of Evidence of Damages Awards
In its fifth issue, MHHS argues that the evidence is legally insufficient to
support the damages award for lost profits. In its sixth issue, MHHS argues that,
“[a]t a minimum, the judgment should be reformed” because it awarded essentially
identical damages to both Gomez and Gomez P.A., resulting in a double recovery.
“Actual or compensatory damages are intended to compensate a plaintiff for
the injury she incurred and include general damages (which are non-economic
damages such as for loss of reputation or mental anguish) and special damages
(which are economic damages such as for lost income).” Hancock v. Variyam, 400
S.W.3d 59, 65 (Tex. 2013).
MHHS asserts that Carter failed to rule out plausible alternative causes for
the decline in Gomez’s cardiovascular surgery business. This does not accurately
reflect Carter’s testimony. Carter testified that she did rule out other plausible
alternative causes for the decline in Gomez’s cardiovascular surgeries, including
any “market-driven” factors, considerations regarding Gomez’s personal life, and
his involvement with the vein clinic. She provided specific reasons for rejecting
these other possible causes. For example, Carter’s conclusions were based in part
on data showing that Gomez’s fellow surgeons Macris and Gibson experienced
growth in their practices during the same time that he experienced a decline.
Carter explained that she believed that Gomez could have continued to run the vein
62
clinic and maintain a full surgical practice. Gomez’s own testimony was that he
would have preferred to spend more time doing cardiovascular surgery but did not
have the referrals to make a full practice, so he supplemented with his vein
practice. Carter opined that the losses to Gomez’s business could not be explained
except as the result of the defamation and business disparagement. The jury was
entitled to credit her testimony on this matter.
MHHS also raises some concerns regarding Carter’s methodologies and
data. However, the trial court considered factors relevant to Carter’s reliability as
an expert witness and ruled that she was qualified to testify. Her methodologies
comport with established legal principles involved in calculating lost profits, and
she presented a range of projections to the jury, along with supporting data. She
testified that she established the lost revenue with evidence from the relevant time
period showing a decline in Gomez’s practice based on Gomez’s own testimony
and representations about his business. She also looked at comparable practices in
the area and general market conditions. See Swinnea, 318 S.W.3d at 876–77
(setting out methodology for calculating lost profits).
MHHS also complains that Carter’s projection that Gomez could perform
258 surgeries a year was insupportable. However, Gomez had performed more
than 258 surgeries in one year prior to the defamation. Carter testified that other
surgeons performed that many surgeries, and she believed that, but for the
63
defamation, Gomez could have as well, especially in light of his experience with
robotic surgeries. Finally, Carter provided estimates of lost profits based on
different predicted volumes of surgeries, and the jury was entitled to credit the
evidence supporting any of those representations regarding Gomez P.A.’s future
capacity had it not been disparaged by MHHS. MHHS is essentially challenging
the conclusions that Carter drew from the evidence. These concerns go to the
weight of the evidence and fall with the province of the jury to resolve. See
Anderson, 550 S.W.3d at 616 (holding that it is jury’s role to evaluate wintesses’
credibility reconcile inconsistencies or conflicts in evidence).
We overrule MHHS’s fifth issue.
Regarding its argument that the jury’s award of damages here to both
Gomez and Gomez P.A. is essentially a double recovery, MHHS asserts, “[T]he
evidence and arguments treated Plaintiffs as identical and treated lost profits and
reputational harm as identical. Because there is no distinction between the
evidence supporting the separate awards, the judgment should have awarded
damages to either plaintiff but not both.”
However, Gomez presented evidence of up to $5.6 million in lost profits
because of the defamation and damage to his reputation. The total jury awards for
lost profits awarded to Gomez P.A. and reputational damages awarded to Gomez
was $5,022,000, which falls within the range of the evidence presented as to total
64
lost profits and reputational damages, whether lost to Gomez as an individual or
lost to Gomez as a one-person professional association. The jury was entitled to
apportion the damages testified to by Carter among the different damages theories.
Thus, we reject MHHS’s arguments that the jury’s awards of reputational damages
to Gomez and lost profits damages to Gomez P.A. constituted a double recovery
under the facts of this case. See Cessna Aircraft Co. v. Aircraft Network, L.L.C.,
213 S.W.3d 455, 464–65 (Tex. App.—Dallas 2006, pet. denied) (holding that
damage awards are duplicative if they compensate party for same injury and that
recovery for both lost profits and injury to business reputation are not necessarily
duplicative); see also Forbes Inc., 124 S.W.3d at 170 (holding that “defamation
actions chiefly serve to protect the personal reputation of an injured party, while a
business disparagement claim protects economic interests”).
MHHS also argues that the exemplary damages awards made by the jury to
Gomez P.A.7 based on its finding of actual malice with regard to the Auzenne data
fail because the liability finding was not unanimous, there was no evidence of lost
profits, and there was no evidence of malice to support any award at all. As set out
above, we have already concluded that there was legally sufficient evidence of lost
7
The jury also awarded exemplary damages to Gomez based on a finding of malice
with regard to the Auzenne data, but because jury polling showed that that the jury
was not unanimous in finding publication in response to a predicate liability
question as to Gomez, the final judgment did not award those exemplary damages
to Gomez.
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profits and malice with regard to the Auzenne data. Furthermore, MHHS’s
argument that the liability finding as to Gomez P.A. was not unanimous is not
supported by the record. The jury verdict reflected that it was not entirely
unanimous. However, the jury made a special certification that the exemplary
damages findings were unanimous. Nothing in the record indicates that the
predicate liability findings on Gomez P.A.’s business disparagement claim arising
out of MHHS’s use of the Auzenne data were not unanimous.
We overrule MHHS’s sixth issue.8
8
Gomez and Gomez P.A. also filed a contingent cross appeal that Gomez waived in
the event that this Court affirmed the trial court’s judgment. Because we affirm the
judgment of the trial court, we need not address the cross claim.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes and Lloyd.9
9
This case was originally submitted on October 20, 2018, for oral argument to a
panel consisting of Justices Keyes, Bland, and Lloyd. Justice Bland’s term of
office subsequently terminated on December 31, 2018. By operation of Texas
Rule of Appellate Procedure 41.1, the case may now be decided by the two
remaining justices who participated in oral argument. See TEX. R. APP. P. 41.1(b)
(providing, “After argument, if for any reason a member of the panel cannot
participate in deciding a case, the case may be decided by the two remaining
justices”).
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